[Cite as Progressive Plastics, Inc. v. Testa, 133 Ohio St.3d 490, 2012-Ohio-4759.]




PROGRESSIVE PLASTICS, INC., APPELLANT, v. TESTA, TAX COMMR., APPELLEE.
                      [Cite as Progressive Plastics, Inc. v. Testa,
                        133 Ohio St.3d 490, 2012-Ohio-4759.]
Taxation—Personal property—Valuation—R.C. 5711.18 and 5711.21—Tax
        commissioner erred in substituting FIFO method of accounting of
        computing value for taxpayer’s LIFO method when no administrative rule
        permitted substitution and no taxpayer-specific evidence existed to justify
        overriding taxpayer’s choice of method—Tax commissioner cannot confer
        force of law on particular accounting method without promulgating
        administrative rule.
 (No. 2011-1793—Submitted September 12, 2012—Decided October 17, 2012.)
              APPEAL from the Board of Tax Appeals, No. 2008-A-241.
                                   __________________
        Per Curiam.
        {¶ 1} In this appeal, Progressive Plastics, Inc. (“PPI”) challenges the tax
commissioner’s decision to increase PPI’s personal property tax assessments for
2004 and 2005. In amending the assessments, the commissioner recomputed the
value of PPI’s inventory based on the FIFO (first in, first out) accounting method
rather than the LIFO (last in, first out) method, which PPI had used on its books.
The Board of Tax Appeals (“BTA”) affirmed the commissioner’s amended
assessments, and PPI’s main contention here is that the commissioner lacked an
individualized evidentiary basis for issuing and upholding the amended
assessments against PPI. As a result, the assessments were, in PPI’s view, illegal
and did not invoke a presumption of validity at the BTA. Additionally, PPI
challenges the BTA’s finding that collateral estoppel barred PPI’s FIFO/LIFO
                            SUPREME COURT OF OHIO




claim on the grounds that the issue had already been litigated and decided against
PPI in the tax-year 2003 proceedings.
       {¶ 2} Because 2004 and 2005 were separate and distinct tax years
presenting potentially different facts from tax year 2003, we disapprove the
BTA’s determination that collateral estoppel applied to PPI’s appeal for the 2004
and 2005 tax years. On the merits, we conclude that the BTA erred by upholding
the commissioner’s assessments for the tax years before us. Namely, the tax
commissioner substituted FIFO for LIFO based not upon the content of the
taxpayer’s return or taxpayer-specific evidence, but rather upon a general
proposition that FIFO should be used to value inventory. Consistent with R.C.
5711.18, R.C. 5711.21, and the general proposition that the tax commissioner
cannot confer the force of law on an accounting method without promulgating it
as an administrative rule, we hold that the substitution of FIFO for LIFO was
impermissible under the circumstances of this case. We therefore reverse the
decision of the BTA.
                        I. FACTUAL BACKGROUND
       {¶ 3} In dispute is whether the tax commissioner was justified, when
auditing PPI’s property tax returns, in substituting FIFO (the first-in, first-out
method of accounting for inventory) for LIFO (the last-in, first-out method).
These methods are two of the four accepted methods of assigning value to
inventory items for accounting purposes. See Larson & Miller, Fundamental
Accounting Principles 486-490 (13th Ed.1993).            Unlike “specific-invoice
inventory pricing” or “average inventory pricing,” FIFO and LIFO each assume
that inventory is reduced in a particular order in relation to acquisition or
manufacture of the items. Id. FIFO assumes that “the items in the beginning
inventory are to be sold first,” with additional sales being made in the order that
the items were acquired. Id. at 488. By contrast, LIFO makes the opposite




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                                January Term, 2012




assumption: under LIFO, “the cost of the last goods received are charged to cost
of goods sold and matched with revenue from sales.” Id. at 489.
     A. The commissioner’s substitution of FIFO for LIFO in computing
     inventory value for tax year 2003 was upheld by the Eighth District
       {¶ 4} The issuance of amended assessments for 2004 and 2005 occurred
against the backdrop of the commissioner’s audit and review for tax year 2003,
and the statutory transcript reflecting the 2003 tax-year proceedings before the tax
department has been made part of the record of this case. In that case, the tax
audit agent’s remarks referred to the 1986 Ohio Personal Property Tax Manual for
the proposition that, because “the effect of LIFO is to assign old costs to new
inventory, it is not acceptable for reporting inventory values for property tax
purposes.” Under the heading “Conclusion and Reasons,” the agent stated that he
had “added the LIFO Reserve back into the computation of inventories for each
month in the audit period,” noted that the “ultimate goal of the assessment is a
determination of the true value of the property taxed,” and stated that the LIFO
method “can give rise to an unrealistic picture of inventory value.”
       {¶ 5} On June 22, 2006, the commissioner issued his final determination
for tax year 2003, in which he addressed PPI’s contention that the substitution of
FIFO for LIFO was unjustified. In that determination, the commissioner observed
that under LIFO, “the last items purchased are considered to be sold first, leaving
older inventory items as considered unsold and comprising the value of inventory
on hand.” Because of this, the commissioner reasoned that the LIFO method did
not properly value the inventory because “the most recent purchases of inventory
are a more accurate indicia [sic] of true value as such purchases were made closer
to the tax listing date than the older purchases * * *.”
       {¶ 6} PPI appealed the tax-year 2003 determination to the BTA, which
affirmed the commissioner, noting that the “critical inquiry” for purposes of
personal property tax is the “value of the inventory on hand.” Progressive



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                                 SUPREME COURT OF OHIO




Plastics, Inc. v. Wilkins, BTA No. 2006-M-1043, 2008 WL 2072355, *2 (May 13,
2008). Citing and relying on Champion Spark Plug Co. v. Lindley, 6 Ohio St.3d
56, 451 N.E.2d 514 (1983), the BTA rejected PPI’s contention that the
commissioner had to accept book value in the absence of a finding, based on
evidence specific to the taxpayer, that book value did not reflect the true value of
the assets.
        {¶ 7} The BTA considered the affidavit of PPI’s chief operating officer,
who stated that based on his knowledge of PPI’s inventory flow, “the true value
of Progressive Plastics inventory is not based exclusively on the FIFO valuation
method.”1 Id. at *5. The BTA accorded little weight to this testimony because
PPI did not provide corroborating evidence. Accordingly, the BTA affirmed the
FIFO/LIFO aspect of the commissioner’s final determination in the tax-year 2003
case.
        {¶ 8} PPI then appealed the BTA’s decision in the 2003 tax-year case to
the Eighth District Court of Appeals. On April 30, 2009, that court issued a
decision affirming the BTA. Progressive Plastics, Inc. v. Levin, 8th Dist. No.
91614, 2009-Ohio-2033.            With respect to the FIFO/LIFO issue, the court
observed that, because LIFO assumes that the last merchandise purchased or
manufactured is sold before the sale of the older merchandise in stock is sold, and
because FIFO relies on the opposite assumption, “FIFO generally better reflects
the current replacement costs of the inventory than LIFO because the average
inventory values under the FIFO method will be based on the acquisition costs of
the most newly acquired inventory, rather than the earliest acquired inventory.”

1. In the 2003 tax-year case, PPI did not present witnesses and exhibits at a BTA hearing, but
chose instead to rely on the existing record, supplementing it by submitting the depositions of one
former and one current tax agent. When PPI later appealed the commissioner’s determination of
the 2004 and 2005 tax-year assessments to the BTA, PPI again presented no witnesses or exhibits.
To make the record complete, the tax commissioner—in addition to certifying the statutory
transcript for the later tax years—also submitted a supplemental transcript containing, in PDF
format, the record from the 2003 tax-year case.




                                                4
                               January Term, 2012




Id. at ¶ 2, fn. 1. Based on the case law, the appeals court rejected PPI’s theory
that a departure from book value must be justified by evidence relating to the
particular taxpayer. The appeals court also brushed aside PPI’s contention that
the commissioner had made no proper finding, holding that the final
determination’s assertion of the usual superiority of FIFO as an indicator of value
constituted such a finding. PPI attempted a further appeal, but this court declined
to accept jurisdiction. Progressive Plastics, Inc. v. Levin, 123 Ohio St.3d 1408,
2009-Ohio-5031, 914 N.E.2d 205.
                  B. The 2004 and 2005 tax-year assessments
        {¶ 9} Against the backdrop of the commissioner’s audit and review for
tax year 2003, the commissioner issued amended preliminary assessments in the
current case for tax years 2004 and 2005.
        {¶ 10} For both tax years, PPI submitted its county return of taxable
personal property, which listed an average value of manufacturing inventory of
$2,499,652 and $2,521,590, respectively, in accordance with the LIFO method.
Once the assessment percentage of 23 percent was applied, the returns reported a
listed value of $563,420 and $579,966, respectively.
        {¶ 11} Substituting FIFO for LIFO, the tax commissioner issued amended
preliminary assessment certificates for both tax years on July 21, 2006. For each
tax year the amended assessment recomputed the value of PPI’s manufacturing
inventory and thereby increased the actual assessed values of that inventory to
$810,140 and $915,370—an increase of 43 percent for 2004 and 58 percent for
2005.    PPI contested the commissioner’s action by filing its petition for
reassessment (covering both years) on September 22, 2006.
        {¶ 12} During the audit for 2004 and 2005, PPI asked that the
commissioner postpone action for those years pending final disposition of
litigation concerning the 2003 tax year. The commissioner, facing the statutory
deadline for completing the tax-year 2004 assessment, declined to do so. See



                                        5
                              SUPREME COURT OF OHIO




R.C. 5711.25 (the preliminary or amended assessment certificate issued by the tax
commissioner becomes final on the second Monday of August of the second year
after filing the return). The tax commissioner’s agent accordingly proceeded to
complete the assessment based on information already in the commissioner’s
possession.    The agent estimated LIFO reserves for later years based on a
percentage extrapolated from earlier years.
      C. The final determination and the BTA appeal for 2004 and 2005
        {¶ 13} On December 26, 2007, the commissioner issued his final
determination in the present case, which rejected PPI’s argument that its LIFO
accounting should be used to value inventory for tax years 2004 and 2005. The
final determination again emphasized the superiority of FIFO for purposes of
determining inventory value. PPI again appealed to the BTA, which issued its
decision on September 20, 2011. Progressive Plastics, Inc. v. Levin, BTA No.
2008-A-241, 2011 WL 4437290 (Sept. 20, 2011). In that decision, the BTA (1)
rejected PPI’s contention that the commissioner may not rely on findings and
evidence generated during the audit of a prior tax year, id. at *2, (2) reiterated its
2003 tax-year finding that PPI “did not provide this board with any corroborating
evidence demonstrating its personal property’s value in conjunction with the
description of its business practices,” id. at *3, and (3) held that collateral estoppel
barred relitigation of the FIFO/LIFO issue. Id. at *4. The BTA affirmed the
commissioner’s final determination, and PPI appealed. We now reverse.
                              II. LEGAL ANALYSIS
        {¶ 14} The fair market value of property for tax purposes has been held to
present “ ‘ “a question of fact, the determination of which is primarily within the
province of the taxing authorities, and this court will not disturb a decision of the
Board of Tax Appeals with respect to such valuation unless it affirmatively
appears from the record that such decision is unreasonable and unlawful.” ’ ”
Rich’s Dept. Stores, Inc. v. Levin, 125 Ohio St.3d 15, 2010-Ohio-957, 925 N.E.2d




                                           6
                                 January Term, 2012




951, ¶ 13, quoting EOP-BP Tower, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 106
Ohio St.3d 1, 2005-Ohio-3096, 829 N.E.2d 686, ¶ 17, quoting Cuyahoga Cty. Bd.
of Revision v. Fodor, 15 Ohio St.2d 52, 239 N.E.2d 25 (1968), syllabus.
Moreover, the tax commissioner’s findings “ ‘are presumptively valid, absent a
demonstration that those findings are clearly unreasonable or unlawful.’ ” Satullo
v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 15, quoting
Nusseibeh v. Zaino, 98 Ohio St.3d 292, 2003-Ohio-855, 784 N.E.2d 93, ¶ 10.
        {¶ 15} PPI confronts the court, however, with a claim of legal error
involving the proper construction and application of R.C. 5711.18 and 5711.21.
A dispute over the meaning of statutes presents a question of law, and our review
in that regard is not deferential but de novo. Akron Centre Plaza, L.L.C. v.
Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d
1054, ¶ 10.
         A. Collateral estoppel did not bar PPI’s challenge in this case
        {¶ 16} PPI’s third proposition of law challenges the BTA’s decision to
apply collateral estoppel as a bar to its FIFO/LIFO claim. The tax commissioner
concedes that the BTA’s determination is incorrect in this regard, and we agree.
        {¶ 17} We have acknowledged “a narrow range of applicability of
collateral estoppel in tax proceedings.” Olmsted Falls Bd. of Edn. v. Cuyahoga
Cty. Bd. of Revision, 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 597, ¶ 17.
Collateral estoppel “precludes the relitigation, in a second action, of an issue that
has been actually and necessarily litigated and determined in a prior action.”
Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112, 254 N.E.2d 10 (1969). But
the estoppel operates “only when there is an identity of issues and an identity of
parties or their privies in both the first and the second suit.” Id. at 113.
        {¶ 18} As for the identity of issues, our decision in Olmsted Falls is
completely dispositive: there, we stated that “the ultimate issue of tax value in
one tax year does not constitute the ‘same issue’ as the ultimate issue of tax value



                                           7
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in a different year” for purposes of applying collateral estoppel. Olmsted Falls at
¶ 17. By that logic, the ultimate issue of inventory value for tax year 2003 is not
the same issue as the issue of inventory value in 2004 and 2005, and collateral
estoppel simply does not apply. Quite simply, each tax year may or may not
present a different set of facts from those presented for any other tax year, with
the result that the determination of facts for one year does not preclude a
determination of new facts for the other year.2
     B. The commissioner may not broadly require the use of a particular
         accounting convention to value property except through a rule
         {¶ 19} Because the BTA held that PPI’s FIFO/LIFO argument was barred
by collateral estoppel, it did not subject the claim to the fuller analysis it
employed in the 2003 tax-year case. But the BTA did find that for 2004 and 2005
as well as for 2003, PPI “did not provide this board with any corroborating
evidence demonstrating its personal property’s value in conjunction with the
description of its business practices.” BTA No. 2008-A-241, 2011 WL 4437290,
*3. Thus, the BTA found that the burden lay on PPI to rebut the commissioner’s
assessment and that PPI had not made an affirmative showing that its inventory
was entitled to a lower valuation. Accordingly, given the following analysis,
there is no need to remand to afford the BTA the opportunity to make any further
findings.
        1. R.C. 5711.18’s presumption in favor of book value does not permit
       a “finding” that merely substitutes one accounting method for another
         {¶ 20} R.C. 5711.18 establishes that the taxpayer’s depreciated book
value is the starting point for valuing manufacturing inventory: indeed, book
value “shall be taken as the true value of such property, unless the assessor [i.e.,


2. The tax commissioner seeks to substitute stare decisis for collateral estoppel, but no analysis of
this point is necessary inasmuch as the BTA did not address it, and neither the BTA decision nor
the court of appeals judgment furnishes binding precedent at this court.




                                                 8
                                January Term, 2012




the tax commissioner] finds that such depreciated book value is greater or less
than the then true value of such property in money.” (Emphasis added.) Having
set forth a mandate, the statute then provides for an exception: if the assessor
“finds” that the value on the books does not reflect true value, a different value
may be substituted.
       {¶ 21} R.C. 5711.18 raises the crucial question for this case: under what
circumstances may a different value be substituted for book value?             R.C.
5711.21(A) furnishes the answer to that question: the tax assessor’s finding under
R.C. 5711.18 must “be guided by the statements contained in the taxpayer’s
return and such other rules and evidence as will enable the assessor to arrive at
such true value.” Additionally significant is R.C. 5711.09: that section charges
the tax commissioner with administering the personal property tax and prescribes
that he “may adopt and promulgate rules” in relation to his duties as administrator
of the personal property tax.
       {¶ 22} In the present case, the commissioner cited neither an
administrative rule nor any content of PPI’s returns in support of substituting
FIFO for LIFO, as contemplated by R.C. 5711.21. PPI contends that, as a result,
“the burden [was] upon the Tax Commissioner to make a finding, supported by
evidence pertinent to the taxpayer, that the book value of the inventory as reported
by the taxpayer is not the true value of that inventory.” In PPI’s view the
commissioner, by relying on a general accounting proposition rather than on a
rule or on specific evidence, failed to comply with R.C. 5711.18 and 5711.21(A).
       {¶ 23} In response, the commissioner argues that he may make a
“finding” under R.C. 5711.18 based upon his “expert judgment” that the FIFO
method of valuation is a better indicator of the value of PPI’s inventory than
LIFO. As discussed in the fact section above, PPI demonstrated that the tax audit
did not rely on PPI-specific data in substituting FIFO for LIFO, but on a general
principle broadly applied to taxpayers that has not been adopted as an



                                         9
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administrative rule. At oral argument, the commissioner’s counsel characterized
the taxpayer’s use of LIFO on its personal property tax return as a “red flag” that
triggered the substitution of FIFO absent a contrary showing by the taxpayer.
That is, the commissioner’s approach was to presume the propriety of substituting
FIFO and, as counsel stated it, to place the burden on PPI to “show us that LIFO
is appropriate here.”
       {¶ 24} We agree with PPI that the substitution of FIFO for LIFO
exceeded the commissioner’s authority under R.C. 5711.18 and 5711.21 in the
circumstances presented in this case. The presumption dictated by R.C. 5711.18
is that the taxpayer’s books, kept in accordance with accepted accounting
principles, establish the value of the inventory. Consistent with R.C. 5711.21, a
departure from that book value may be justified based on the content of the
taxpayer’s returns, the language of an administrative rule, or other evidence.
Nothing in this scheme, however, permits the commissioner to raise a
presumption that an accounting convention not used by the taxpayer better
estimates value than the one the taxpayer did use, thereby placing a burden of
rebuttal on the taxpayer.
       {¶ 25} The case law supports this analysis. In PPG Industries, Inc. v.
Kosydar, 65 Ohio St.2d 80, 83, 417 N.E.2d 1385 (1981), the tax commissioner
confronted a similar question of valuing manufacturing inventory on audit. The
taxpayer reported value using the same method it used in keeping its books, a
method that excluded certain indirect factory overhead costs.             But the
commissioner determined that those costs must be included and recomputed the
taxpayer’s tax liability, assessing a higher amount. This approach reflected the
“absorption” method rather than the variable costing convention employed by the
taxpayer. When the taxpayer appealed, the BTA affirmed, but on further appeal,
the Tenth District Court of Appeals reversed. The court of appeals held that “in
the absence of an applicable rule or evidence to the contrary, the tax




                                        10
                                January Term, 2012




commissioner and the Board of Tax Appeals must accept the statements contained
in the taxpayer’s return” on the grounds that “there would be no basis to find the
statements in the return to be inaccurate.” PPG Industries, Inc. v. Kosydar, 10th
Dist. Nos. 79AP-139 through 79AP-142, 1979 WL 209569, *6 (Dec. 28, 1979).
       {¶ 26} The tax commissioner appealed, and we defined the issue as
“whether the variable costing method employed by PPG is an acceptable indicator
of true value for Ohio personal property tax purposes.” 65 Ohio St.2d at 81, 417
N.E.2d 1385. A rule adopted by the tax commissioner required use of the “full
absorption” method of accounting when valuing inventory, but that language was
not part of the rule during the tax years at issue. Id. We held that the taxpayer,
unconstrained by the administrative rule during the relevant period, was “not
required to adopt the full absorption method of inventory valuation.” Id. Thus,
under R.C. 5711.18, “[t]he statements in the taxpayer’s returns, being unrebutted,
must be accepted by the commissioner.” Id. at 82. Hence, we affirmed the court
of appeals’s disposition of the issue. Id. at 82-83.
       {¶ 27} By the same logic, PPI must prevail in the present case. PPI used
an accepted accounting method, LIFO, for its manufacturing inventory, and that
method becomes binding in the absence of a rule or of particularized findings
based on specific evidence, be it of the taxpayer’s operations or of market
conditions.
       {¶ 28} The tax commissioner and the BTA placed heavy reliance on
Champion Spark Plug Co. v. Lindley, 6 Ohio St.3d at 58, 451 N.E.2d 514. That
case does involve manufacturing inventory, and we did uphold the substitution of
FIFO for LIFO in Champion. However, the BTA in that case had affirmed the
commissioner’s use of FIFO based on actual evidence of inventory flow, and this
court found the BTA’s decision to be reasonable and lawful in that regard. The
taxpayer argued that book value “constitutes prima facie evidence of true value
which [the tax commissioner] must either accept or overcome through the



                                          11
                                  SUPREME COURT OF OHIO




production of evidence to the contrary,” id. at 57, and under the circumstances of
that case, we resolved the issue against the taxpayer.
        {¶ 29} But although Champion was decided after PPG Industries, and
although the taxpayer specifically argued that substituting FIFO for LIFO “is not
such a finding as is required by Revised Code section 5711.18 to overcome the
book value reported by the taxpayer,” we did not address, much less embrace or
refute that argument.          Instead, we relied on the totality of the record as
substantiating the tax commissioner’s assessment. Indeed, Champion does not
cite PPG Industries, let alone overrule it.3 It follows that where, as here, the
commissioner relies on the asserted superiority of one accounting convention for
determining value, over the convention used by the taxpayer, his position must
fail under PPG Industries.
              2. The tax commissioner may require the substitution of a
             more accurate accounting convention by administrative rule
        {¶ 30} In holding that the commissioner cannot substitute accounting
methods, we acknowledge that the commissioner’s preference for FIFO over
LIFO in valuing inventory is by no means arbitrary. Indeed, it is a commonplace
that FIFO is an “acceptable measure of inventory replacement cost” because
“[p]rices most recently paid are a better indication of replacement cost than are
prices from months, even years, earlier,” while LIFO is “less acceptable” because

3. Champion cites Youngstown Sheet & Tube Co. v. Kosydar, 44 Ohio St.2d 96, 338 N.E.2d 366
(1975), for the proposition that “the taxpayer’s book value of its inventory is merely evidence of
true value and will be taken as prima facie evidence of true value only when the Tax
Commissioner has failed to find that such book value is greater or less than true value in money of
the property.” Id., paragraph two of the syllabus. In Youngstown Sheet & Tube, the BTA, faced
with a “battle of the experts,” resolved the case in favor of the taxpayer. We affirmed. Likewise,
in R.H. Macy Co., Inc. v. Schneider, 176 Ohio St. 94, 197 N.E.2d 807 (1964), we affirmed the
BTA’s decision in a context where the BTA had evidence before it showing the inventory
computed by both the LIFO and the retail-inventory methods. The BTA determined that true
value was the amount determined by the retail-inventory method, and we held in essence that the
BTA’s decision was neither arbitrary, unreasonable, nor unlawful. Id. at 97-98. Neither case
explicitly endorsed the general substitution of one accounting convention for another.




                                                12
                               January Term, 2012




“it does not reflect inventory value for property tax purposes.” IAAO, Property
Assessment Valuation 368 (2d Ed.1996).
       {¶ 31} However, the commissioner “cannot confer the force of law on a
requirement without promulgating it as a rule,” 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, 92-93, 465 N.E.2d 450 (1984). Accordingly, we
hold that the commissioner must promulgate an administrative rule to require the
use of a particular accounting convention as a matter of course.      A notable
example is the commissioner’s “302 computation”: even though that method
“prescrib[es] annual depreciation rates in lieu of book depreciation for Ohio
personal property tax purposes” (emphasis added), we have repeatedly upheld that
method as “ ‘a practical, reasonable and lawful method and device to achieve
uniform valuation of plant equipment in Ohio.’ ” WCI Steel, Inc. v. Testa, 129
Ohio St.3d 256, 2011-Ohio-3280, 951 N.E.2d 421, ¶ 23, quoting PPG Industries,
65 Ohio St.2d at 83, 417 N.E.2d 1385. Unlike the substitution of FIFO for LIFO,
however, the commissioner has exercised his rulemaking authority to confer
proper legal status on the 302 computation. Compare Ohio Adm.Code 5703-3-10
and 5703-3-11, which expressly adopt the “302 computation” method for valuing
depreciable tangible personal property used in business, with 5703-3-27, which is
silent as to the method to be used for valuing the average inventory of a
manufacturer.
                  3. The record does not negate PPI’s use of LIFO
       {¶ 32} The commissioner also asserts that the substitution of FIFO is
justified because the evidence shows that FIFO better reflects PPI’s actual
inventory flow.     In particular, the commissioner points to an internal PPI
memorandum that states: “Even though LIFO is used for balance sheet valuation
of inventories, our company uses raw materials and ship [sic] finished goods on a



                                        13
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first-in, first-out (FIFO) basis.”4          But the commissioner is wrong.              Actual
inventory flow is neither dispositive of the propriety of using LIFO on the books
of the business nor determinative of which accounting convention reflects value.
See Larson & Miller at 489; Property Assessment Valuation at 368.
                                   III. CONCLUSION
        {¶ 33} For the foregoing reasons, the BTA erred by upholding the tax
commissioner’s use of FIFO for 2004 and 2005.                   We therefore reverse that
portion of the BTA’s decision. Unaffected by our holding is the remainder of the
BTA’s decision, which PPI did not challenge on appeal.
                                                                           Decision reversed.
        O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                                   __________________
        Corsaro & Associates Co., L.P.A., Christian M. Bates, and Joseph G.
Corsaro, for appellant.
        Michael DeWine, Attorney General, and Daniel W. Fausey, Assistant
Attorney General, for appellee.
                                ______________________




4. Under its second proposition of law, PPI contends that the tax commissioner “cannot rely on
information obtained through a prior year’s audit to assess additional tax for a subsequent year”
because each tax year “stands on its own.” PPI cites Olmsted Falls Bd. of Edn. v. Cuyahoga Cty.
Bd. of Revision, 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 597, and Fogg-Akron Assoc.,
L.P. v. Summit Cty. Bd. of Revision, 124 Ohio St.3d 112, 2009-Ohio-6412, 919 N.E.2d 730. Both
cases address the question whether presumptive validity may be accorded to a prior year’s
valuation. Using evidence from a prior year is a completely different issue.




                                               14
