[Cite as Wellington Square, L.L.C. v. Testa, 2012-Ohio-4981.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

WELLINGTON SQUARE, LLC                              :

        Appellant                                   :      C.A. CASE NO. 2012 CA 0024

vs.                                                 :      T.C. CASE NO. 2011 K 1913

JOSEPH W. TESTA,                                    :      (Appeal from the Ohio Board
TAX COMMISSIONER OF OHIO                                    of Tax Appeals)
                                                    :
        Appellee                                    :

                                       . . . . . . . . .

                                          O P I N I O N

                  Rendered on the 26th day of October, 2012.

                                       . . . . . . . . .

Wayne E. Southward, Atty. Reg. No. 0009439, One South Limestone
Street, Suite 800, Springfield, Ohio 45502
     Attorney for Appellant

Michael DeWine, Attorney General of Ohio, by Daniel W. Fausey,
Assistant Attorney General of Ohio, Atty. Reg. No. 0079928, 30
East Broad Street, 25th Floor, Columbus, Ohio 43215
     Attorney for Appellee

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This appeal is brought pursuant to R.C. 5717.04 from an order of the Ohio

Board of Tax Appeals (the “Board”), affirming a final determination of the Tax

Commissioner of Ohio that dismissed an Application for Real Property Tax Exemption filed
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by appellant, Wellington Square, LLC (“Wellington Square”).               The Board held that

Wellington Square lacked standing to apply for the exemption it sought because Wellington

Square did not hold legal title to the real properties concerned on the date it filed its

application for the exemptions. For the reasons explained below, we affirm.

       {¶ 2} Wellington Square filed its application on December 21, 2009, seeking an

exemption from taxes on two parcels of real property for the 2009 tax year. Prior to that, on

May 26, 2009, Wellington Square had sold and conveyed its title to the two parcels to TAC

Industries, Inc., which had occupied the properties as a tenant since 2003. Wellington Square

applied for and obtained tax exemptions for prior years during which TAC Industries, a

non-profit charitable enterprise, occupied the two parcels.

       {¶ 3} R.C. 5715.27(A)(1) governs who may apply for a tax exemption for real

property, and provides:

       Except as provided in division (A)(2) of this section and in section 3735.67 of

       the Revised Code, the owner, a vendee in possession under a purchase

       agreement or a land contract, the beneficiary of a trust, or a lessee for an initial

       term of not less than thirty years of any property may file an application with

       the tax commissioner, on forms prescribed by the commissioner, requesting

       that such property be exempted from taxation and that taxes, interest, and

       penalties be remitted as provided in division (C) of section 5713.08 of the

       Revised Code. (Emphasis supplied.)

       {¶ 4} The only classification in R.C. 5715.27(A)(1) that could permit Wellington

Square to file an application for tax exemption is as the “owner” of the real properties
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concerned. In Performing Arts School of Metropolitan Toledo, Inc. v. Wilkins, Tax Commr.,

104 Ohio St.3d 284, 2004-Ohio-6389, 819 N.E.2d 649, the Supreme Court held that an

“owner as used in R.C. 5715.27 refers only to a legal title holder of the real property for which

a tax exemption is sought.” ¶ 13. Because Wellington Square did not hold legal title to the

two parcels when it filed its application on December 21, 2009, the Board found that

Wellington Square lacked standing to apply for the benefit for the properties it sought, and

accordingly affirmed the determination of the Tax Commissioner denying Wellington

Square’s application.

       {¶ 5} Wellington Square argues that the Board erred because the relevant date to

determine an applicant’s standing is January first, in the year for which the exemption is

sought. Wellington Square held title to the two parcels of property on January 1, 2009.

Wellington Square relies on the holding in Sylvania Church of God v. Levin, Tax Commr.,

118 Ohio St.3d 260, 2008-Ohio-2448, 888 N.E.2d 408.

       {¶ 6} Sylvania Church of God did not involve the issue of an applicant’s standing.

It involved instead the right of an applicant with standing to obtain the tax exemption sought.

The Supreme Court held that, in order for the property to qualify for the exemption, it must

have both been used for the exempt purpose and owned by the applicant on the January first

date of the year for which the exemption is sought. The Supreme Court affirmed that holding

later the same year in Southside Community Development Corporation v. Levin, Tax Commr.,

119 Ohio St.3d 521, 2008-Ohio-4839, 895 N.E.2d 551.
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       {¶ 7} Because Wellington Square did not hold title to the two parcels on the date its

application was filed, the fact that it owned the properties on January 1, 2009, and that they

were then used for a claimed exempt purpose, is immaterial.

       {¶ 8} Wellington Square further argues that the Tax Commissioner should have

accepted its application for other reasons. Wellington Square points out that it had been

granted exemptions for prior years in which TAC Industries occupied and used the premises,

as TAC Industries continued to do as their owner. Also, Wellington Square is wholly owned

and funded by the same charitable trust that funds TAC Industries. The commonality of their

circumstances, which were made known to the Tax Commissioner in its application, support

the exemption it sought according to Wellington Square.

       {¶ 9} We are not persuaded. “In administrative appeals such as this, ‘parties must

meet strict standing requirements in order to satisfy the threshold requirement for the

administrative tribunal to obtain jurisdiction.’” Performing Arts School of Metropolitan

Toledo, ¶ 6, quoting State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d

1002, fn. 4.   Because the right to prosecute an application for exemption involves an

administrative proceeding statutorily created and delineated, common-law concepts of privity

have no application. Id., ¶ 6.

       {¶ 10} The Board did not err when it affirmed the determination of the Tax

Commissioner and dismissed Wellington Square’s appeal. Therefore, the assignments of

error are overruled, and the Board’s decision will be affirmed.



Donovan, J., and Hall, J., concur.
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Copies mailed to:

Wayne E. Southward, Esq.
Daniel W. Fausey, Esq.
Sally F. Van Meter, Secretary
Ohio Board of Tax Appeals
