[Cite as Panther II Transp., Inc. v. Seville Bd. of Tax Rev., 2012-Ohio-3525.]


STATE OF OHIO                      )                         IN THE COURT OF APPEALS
                                   )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

PANTHER II TRANSPORTATION, INC.                              C.A. No.            11CA0092-M
                                                                                 11CA0093-M
        Appellee

        v.
                                                             APPEAL FROM JUDGMENT
VILLAGE OF SEVILLE BOARD OF                                  ENTERED IN THE
INCOME TAX REVIEW, et al.                                    OHIO BOARD OF TAX APPEALS
                                                             COUNTY OF MEDINA, OHIO
        Appellants                                           CASE No.   2008-M-1247

                                  DECISION AND JOURNAL ENTRY

Dated: August 6, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Appellants, the Village of Seville Board of Income Tax Review (“Seville”) and

Income Tax Administrator Nassim M. Lynch and the Central Collection Agency (collectively,

“Central Collection”), now appeal from the judgment of the Ohio Board of Tax Appeals. This

Court affirms.

                                                        I

        {¶2}     Plaintiff-Appellee, Panther II Transportation, Inc. (“Panther II”), is a motor

vehicle transportation company that leases tractors from owner-operators to haul its trailers for

both interstate and intrastate highway travel.              As a motor vehicle transportation company,

Panther II is subject to the regulation of the Public Utilities Commission of Ohio (“PUCO”) and

pays an annual state tax for the issuance of a certificate of public convenience. In 2005 and

2006, Panther II also paid a tax on its local net profits to the Village of Seville, the municipality

in which it was headquartered.
                                                 2


       {¶3}    In March 2007, Panther II filed a refund claim with the Village of Seville for the

return of the taxes it paid on its net profits. Panther II argued that the Village of Seville could

not levy a local net profits tax upon it because state law preempted the municipality’s tax.

Central Collection, the tax administrator for the Village of Seville, denied Panther II’s refund

claim. Panther II appealed Central Collection’s final administrative ruling to Seville, which

affirmed the administrative ruling and denied Panther II’s refund. Panther II then appealed to the

Ohio Board of Tax Appeals. The Board of Tax Appeals reversed Central Collection’s ruling and

determined that state law preempted the Village of Seville’s local tax against Panther II.

       {¶4}    Seville and Central Collection now appeal from the Board of Tax Appeals’

decision and collectively raise seven assignments of error for our review. For ease of analysis,

we consolidate the assignments of error.

                                                II

                               Seville Board’s Assignment of Error

       THE OHIO BOARD OF TAX APPEALS ERRED IN DETERMINING THAT
       PLAINTIFF/APPELLEE IS NOT SUBJECT TO MUNICIPAL INCOME
       TAXATION PURSUANT TO R.C. 4921.25[.]

                     Central Collection’s Assignment of Error Number One

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW IN HOLDING THAT R.C.
       4921.25 PREEMPTS A MUNICIPALITY’S NET PROFITS INCOME TAX AS
       THAT TAX IS APPLIED TO PANTHER AND OTHER MOTOR
       TRANSPORTATION COMPANIES DEFINED UNDER R.C. CHAPTER 4921.

                     Central Collection’s Assignment of Error Number Two

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW IN HOLDING THAT R.C.
       4921.25 IS AN AFFIRMATIVE EXPRESS ACT OF THE GENERAL
       ASSEMBLY UNDER SECTION 13, ARTICLE XVIII OF THE OHIO
       CONSTITUTION THAT LIMITS AND RESTRICTS A MUNICIPALITY’S
       POWER TO IMPOSE AN INCOME TAX.
                                               3


                    Central Collection’s Assignment of Error Number Three

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW WHERE (A) THE WORD
       “TAX” HAS DIFFERENT MEANINGS DEPENDING UPON THE CONTEXT
       IN WHICH THE WORD IS USED; (B) THERE IS A CLEAR DISTINCTION
       BETWEEN A LICENSE FEE OR TAX EXACTED IN THE EXERCISE OF A
       MUNICIPALITY’S POLICE POWER AND A TAX LEVIED UNDER ITS
       TAXING POWER; (C) R.C. 4921.25 ONLY DEALS WITH THE LICENSING
       AND REGULATION OF MOTOR TRANSPORTATION COMPANIES; (D)
       THE R.C. 4921.18 TAX IS CLEARLY A LICENSE TAX; AND (E) R.C.
       4921.25 THEREFORE DOES NOT PREEMPT A MUNICIPALITY’S RIGHT
       TO TAX UNDER ITS TAXING POWER.

                    Central Collection’s Assignment of Error Number Four

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW WHERE THE EXPRESS
       STATUTORY PROHIBITIONS PREEMPTING THE MUNICIPAL TAX ARE
       FOUND IN R.C. 718.01(F) (SINCE RECODIFIED AS R.C. 718.01(H)).

                    Central Collection’s Assignment of Error Number Five

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW WHERE R.C. 718.01(D)(1)
       CLEARLY PROVIDES THAT “NO MUNICIPAL CORPORATION SHALL
       EXEMPT FROM A TAX ON INCOME . . . THE NET PROFIT FROM A
       BUSINESS OR PROFESSION.”

                     Central Collection’s Assignment of Error Number Six

       THE OHIO BOARD OF TAX APPEALS’ DECISION IS UNREASONABLE
       AND UNLAWFUL AS A MATTER OF LAW WHERE PANTHER DOES NOT
       OWN THE VEHICLES IT USES BUT INSTEAD UTILIZES OWNER-
       OPERATORS AND OTHER TRUCKING COMPANIES WHO ACTUALLY
       ARE RESPONSIBLE FOR PAYING THE R.C. 4921.18 LICENSE FEE.

       {¶5}   In all of the foregoing assignments of error, Seville and Central Collection argue

that the Board of Tax Appeals erred by concluding that state law preempts the local net profits

tax the Village of Seville levied against Panther II as a motor vehicle transportation company.

We do not agree that the Board of Tax Appeals erred in its conclusion.
                                                4


       {¶6}    Appeals taken from a tax board’s decision are governed by Chapter 5717 of the

Revised Code. Elyria City School Dist. Bd. of Edn. v. Ellis, 9th Dist. No. 07CA009191, 2008-

Ohio-4293, ¶ 9. “[P]ursuant to R.C. 5717.04, our review of the [Board of Tax Appeals’]

decision is ‘limited to a determination, based on the record, of the reasonableness and lawfulness

of the Board of Tax Appeals’ decision.” (Citations omitted.) Nimon v. Zaino, 9th Dist. No.

01CA007918, 2002 WL 276775, *1 (Feb. 27, 2002), quoting Federated Dept. Stores v. Lindley,

8 Ohio St.3d 35, 38 (1983). This Court will affirm the factual determinations of the Board of

Tax Appeals so long as the record contains reliable and probative support for its determination.

Ellis at ¶ 7. Yet, this Court “will not hesitate to reverse a [Board of Tax Appeals’] decision that

is based on an incorrect legal conclusion.” Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-

5856, ¶ 14, quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d

231, 232 (2001).

       {¶7}    The Home Rule Amendment embodied in Article XVIII, Section 3 of the Ohio

Constitution, permits municipalities to exercise the powers of local self-government, including

the power to tax. Cincinnati Bell Tel. Co. v. Cincinnati, 81 Ohio St.3d 599, 602 (1998). “[T]he

intention of the Home Rule Amendment was to eliminate statutory control over municipalities by

the General Assembly.” Id. at 605. Accordingly, while the General Assembly has the power to

restrict a municipality’s authority to tax, “a proper exercise of this limiting power requires an

express act of restriction by the General Assembly” in the form of “an express statutory

limitation.” Id. at 605-606. A municipality may enact a net profits tax “in the absence of an

express statutory prohibition of the exercise of such power by the General Assembly.” Id. at

601. Where a direct conflict exists between a municipal ordinance and a state law, the state law
                                                5


will prevail. Wadsworth v. Stanley, 9th Dist. Nos. 10CA0004-M, 10CA0005-M, 10CA0006-M

& 10CA0007-M, 2010-Ohio-4663, ¶ 17.

       {¶8}    At issue in this appeal is the plain language of R.C. 4921.25. The relevant

language of that statute reads:

       The fees and charges provided under section 4921.18 of the Revised Code shall
       be in addition to taxes, fees, and charges fixed and exacted by other sections of
       the Revised Code, except the assessments required by section 4905.10 of the
       Revised Code, but all * * * taxes or other money exactions, except the general
       property tax, assessed, charged, fixed, or exacted by local authorities such as
       municipal corporations * * * are illegal and, are superseded by sections 4503.04,
       4905.03, and 4921.02 to 4921.32, inclusive, of the Revised Code. On compliance
       by such motor transportation company with sections 4503.04, 4905.03, and
       4921.02 to 4921.32, inclusive, of the Revised Code, all local ordinances,
       resolutions, by laws, and rules in force shall cease to be operative as to such
       company, except that such local subdivisions may make reasonable local police
       regulations within their respective boundaries not inconsistent with such sections.

R.C. 4921.25. R.C. 4921.18 governs the specific monetary sum a motor transportation company

must annually pay to PUCO to receive its certificate of public convenience; a document

necessary for the use of any motor vehicle or truck operated by the company in the state. By

virtue of R.C. 4921.25’s plain language, a motor transportation company’s annual payment for

its certificate of public convenience does not absolve it from the payment of other applicable

state taxes, fees, and charges. Its status as a motor transportation company, however, subjects it

to all the laws and regulations set forth by PUCO.            Former R.C. 4905.03(A)(3); R.C.

4905.03(A)(2); R.C. 4921.01(D); R.C. 4921.02(A). R.C. 4921.25 specifically provides that

PUCO’s provisions supersede any tax a municipal corporation might wish to impose, with the

exception of the general property tax. Any tax, other than the general property tax, is “illegal.”

R.C. 4921.25. Therefore, a motor transportation company that is subject to PUCO’s laws and

remains compliant with its statutory obligations is not subject to the taxes or laws of a municipal

corporation, other than those specifically allowed by statute. Id. (exempting motor transportation
                                                 6


company from all taxes, except the general property tax, and all laws, except reasonable local

police regulations). Accord Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 44 (9th Dist.1995)

(“[L]ocal subdivisions may make reasonable local police regulations relating to motor

transportation companies so long as the local regulations are not inconsistent with the authority

of [] PUCO.”).

       {¶9}      In support of their argument that the General Assembly did not expressly restrict

municipalities from taxing the net profits of a motor transportation company, Seville and Central

Collection first point to R.C. 718.01. That statute contains several provisions regarding the

taxing power of municipal corporations. It provides that “[e]xcept as otherwise provided in this

section, no municipal corporation shall exempt from a tax on income compensation * * * the net

profit from a business.” R.C. 718.01(D)(1). The statute then goes on to provide a list of

compensations and incomes that municipal corporations shall not tax. R.C. 718.01(H); Former

R.C. 718.01(F). Seville and Central Collection argue that, because the net profits of a motor

transportation company do not appear on the list of exempted items, Panther II’s net profits are

not exempted from taxation and R.C. 718.01(D)(1) actually requires the Village of Seville to tax

Panther II. Although R.C. 718.01 does contain a specific list of exemptions to the taxing

authority of a municipal corporation, it also provides that “[n]othing in this section * * * shall

authorize the levy of any tax on income that a municipal corporation is not authorized to levy

under existing laws * * *.” R.C. 718.01(J); Former R.C. 718.01(H). The statute recognizes that

its list of non-taxable compensations and incomes is not exhaustive and other existing laws may

void a municipality’s taxing power. Accordingly, we are not persuaded that Seville had the

authority to tax Panther II simply because Panther II’s net profits are not per se exempted from

taxation under R.C. 718.01.
                                                7


       {¶10} The primary position of Seville and Central Collection is that when the General

Assembly used the word “tax” in R.C. 4921.25 it was not referring to an income tax. Instead,

they argue that the tax references in R.C. 4921.25 pertain to license and regulatory fees and

charges. Seville and Central Collection point to R.C. 4921.18, which also uses the word “tax,”

but which in actuality is a flat licensing fee unrelated to profit or income. Seville and Central

Collection posit that the General Assembly’s intent in enacting R.C. 4921.25 was only to

expressly prohibit municipalities from imposing any additional licensing or regulatory taxes

upon motor transportation companies beyond those already imposed by PUCO. As such, they

argue, R.C. 4921.25 does not prohibit Seville from taxing Panther II’s net profits. The plain

language of R.C. 4921.25 does not support Seville and Central Collection’s argument.

       {¶11} In prohibiting municipal corporations from assessing, charging, fixing or exacting

taxes from motor transportation companies, R.C. 4921.25 specifically refers to “all fees, license

fees, annual payments, license taxes, or taxes or other money exactions.” R.C. 4921.25. Had the

General Assembly intended the word “tax” to mean license fees or charges, it would not have

been necessary to separately prohibit the imposition of “license fees” and “license taxes” in

addition to “taxes.” See Leasure v. Adena Local School Dist., 9th Dist. No. 11CA3249, 2012-

Ohio-3071, ¶ 17 (“To determine legislative intent, a court must first look to the words used in the

statute.”). The statute plainly applies to “all * * * taxes.” More importantly, the statute exempts

general property taxes from its ban on municipal tax. General property taxes are not simply

license and regulatory fees and charges. If the General Assembly had intended R.C. 4921.25

only to exempt municipalities from imposing additional licensing or regulatory taxes, it would

not have been necessary to exempt general property taxes from R.C. 4921.25’s application.

Lastly, the fact that the General Assembly exempted general property taxes and not net profits
                                                 8


taxes is telling. “Under the general rule of statutory construction expressio unius est exclusio

alterius, the expression of one or more items of a class implies that those not identified are to be

excluded.” In re Estate of Horton, 9th Dist. Nos. 20695 & 20741, 2002 WL 465428, *3 (Mar.

27, 2002), quoting State v. Droste, 83 Ohio St.3d 36, 39 (1998). The General Assembly

specifically chose to exempt general property taxes from its express statutory prohibition on “all

* * * taxes” in R.C. 4921.25. Had the General Assembly wished to exempt other taxes in

addition to general property taxes, it certainly could have done so. We agree with the conclusion

of the Board of Tax Appeals that R.C. 4921.25 prohibits the Village of Seville from taxing

Panther II’s net profits under the doctrine of express preemption. Consequently, all of the

assignments of error raised by Seville and Central Collection lack merit.

                                                III

       {¶12} Seville and Central Collection’s assignments of error are overruled.               The

judgment of the Board of Tax Appeals is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Ohio Board of Tax

Appeals, County of Medina, State of Ohio, to carry this judgment into execution. A certified

copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                    BETH WHITMORE
                                                    FOR THE COURT



MOORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

THEODORE J. LESIAK, Attorney at Law, for Appellant.

BARBARA A. LANGHENRY, Interim Director of Law, and LINDA L. BICKERSTAFF,
Assistant Director of Law, for Appellants.

JAMES F. LANG and N. TREVOR ALEXANDER, Attorneys at Law, for Appellee.
