[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
                            SUPREME COURT OF OHIO




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




                                         2
                                  January Term, 2010




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.




                                              3
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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




                                        4
                                January Term, 2010




       {¶ 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



                                         5
                               SUPREME COURT OF OHIO




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).




                                           6
                                January Term, 2010




       {¶ 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-



                                          7
                                  SUPREME COURT OF OHIO




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.




                                                8
                                January Term, 2010




       {¶ 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.



                                          9
                             SUPREME COURT OF OHIO




                                 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




                                         10
                                    January Term, 2010




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.




                                              11
                                SUPREME COURT OF OHIO




        {¶ 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.




                                             12
                               January Term, 2010




                   “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.



                                        13
                            SUPREME COURT OF OHIO




       {¶ 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




                                        14
                                  January Term, 2010




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.
                            ______________________




                                          15
