[Cite as Nestle R&D Ctr., Inc. v. Levin, 122 Ohio St.3d 22, 2009-Ohio-1929.]




 NESTLE R&D CENTER, INC., APPELLANT, v. LEVIN, TAX COMMR., APPELLEE.
                       [Cite as Nestle R&D Ctr., Inc. v. Levin,
                         122 Ohio St.3d 22, 2009-Ohio-1929.]
Taxation — Franchise tax — Tax credit for creating new jobs — R.C. 122.17 and
        5733.0610 — Statute of limitations — Three-year limitations period in
        R.C. 5733.12(B) begins to run when Department of Development issues
        certificate verifying the amount of credit.
    (No. 2008-1285 — Submitted April 21, 2009 — Decided April 30, 2009.)
              APPEAL from the Board of Tax Appeals, No. 2006-M-1365.
                                  __________________
        Per Curiam.
        {¶ 1} This case presents a statute-of-limitations question.            When a
corporate franchise taxpayer claims a tax credit for creating new jobs in Ohio, it
does so by filing a refund claim under R.C. 5733.12(B). This case asks when the
three-year limitations period for filing such a claim begins to run. The Tax
Commissioner and the Board of Tax Appeals (“BTA”) held that the limitations
period began to run at the time taxes were deemed to have been paid. Nestle
argues that the period began to run at a later time:              the date on which the
Department of Development issued the certificate that verifies the amount of the
tax credit.
        {¶ 2} We hold that the three-year limitations period commences to run
when the Department of Development issues the certificate. We therefore reverse
the BTA’s decision and remand for further proceedings.
                                          I. Facts
                                  A. Procedural history
                            SUPREME COURT OF OHIO




       {¶ 3} Appellant Nestle R&D Center, Inc. (“Nestle”) initiated the present
proceedings by filing an application for a refund of corporation franchise tax for
tax year 2001. The substantive basis for the claim lies in the refundable credit for
Ohio job creation provided by R.C. 122.17 and 5733.0610. The Ohio Tax Credit
Authority entered into a ten-year agreement to grant that tax break to Nestle in
1994, and the authority issued a certificate on December 6, 2004, that confirmed
the amount of credit that Nestle could claim for tax year 2001. Nestle then filed
its refund application on January 6, 2005.
       {¶ 4} The Tax Commissioner found that Nestle had filed its application
after the three-year limitations period provided by R.C. 5733.12(B) had expired.
Having determined that the application was untimely, the commissioner
concluded that he lacked jurisdiction to consider it. On appeal, the Board of Tax
Appeals (“BTA”) affirmed.
       {¶ 5} Before this court, Nestle renews its contention that the three-year
statute of limitations set forth in R.C. 5733.12(B) does not bar its refund claim.
Nestle argues that the limitations period did not begin to run until it received the
certificate allowing the job credit for tax year 2001, which did not occur until
December 6, 2004.
                          B. The job-creation tax credit
       {¶ 6} Enacted in 1992, Sub.S.B. No. 363 provided tax breaks designed to
encourage job creation by businesses in Ohio. 144 Ohio Laws, Part II, 2642. The
act originally provided a credit against the corporation franchise tax and the
personal income tax. The enabling provisions are codified at R.C. 122.17.
       {¶ 7} The credit becomes available through a formal agreement between
the taxpayer and the Ohio Tax Credit Authority, a panel chaired by the Director of
Development that consists of four other members selected by the governor and
legislative leaders. R.C. 122.17(C), (D), and (M). The basis for computing the
credit lies in the amount of income-tax withholding associated with employees




                                         2
                                January Term, 2009




who hold the newly created jobs, and the taxpayer negotiates the percentage of
withholding to be used in computing the credit as one term of the tax-credit
agreement. R.C. 122.17(A)(3) and (D)(4).
       {¶ 8} It is significant that the job-creation tax credit is refundable in
nature. R.C. 122.17(B); 5733.0610(A). That means that the taxpayer receives the
full benefit of the credit even if it does not have sufficient liability to offset in a
given tax year. See Sorenson v. Secy. of the Treasury (1986), 475 U.S. 851, 854,
106 S.Ct. 1600, 89 L.Ed.2d 855 (unlike other credits that can be used “only to
offset tax that would otherwise be owed,” the federal earned-income credit is
refundable, meaning that if an individual’s earned-income credit exceeds his tax
liability, the excess amount is considered an overpayment of tax to be refunded to
the taxpayer); R.C. 5733.0610(A) (“taxes equal to the amount of the refundable
credit shall be considered to be paid to this state on the first day of the tax year”);
cf. R.C. 5733.98(A)(31) and 5733.98(B) (distinguishing refundable credits such
as the job-creation credit from those for which “the amount of the credit for a tax
year shall not exceed the tax due after allowing for any other credit that precedes
it in the order required under this section”). Thus, when the amount of the job-
creation tax credit exceeds the tax liability as to a particular year, the state first
applies the excess against other debts the taxpayer owes to the state, and then
disburses any remaining excess to the taxpayer as a refund payment.               R.C.
5733.121.
       C. The grounds for dismissal by the Tax Commissioner and the BTA
       {¶ 9} The record is not extensively developed in this case, but it does
contain four Ohio Tax Credit Authority certificates that pertain to taxable years
2000 through 2003. Each of the certificates refers to the underlying agreement
between Nestle and the authority: the agreement was entered into on April 20,
2004, and extended from January 1995 to December 2004. For each year in the




                                          3
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record, the certificate allowed a credit in the amount of 60 percent of the income-
tax withholding attributable to newly created jobs during the taxable year. 1
         {¶ 10} R.C. 5733.12(B) states that an application for a refund of franchise
tax shall be filed “within three years from the date of the illegal, erroneous, or
excessive payment of the tax.” The statute further clarifies that a payment made
before the franchise tax return was due “shall be deemed to have been made on
the due date or extended due date.”                  The Tax Commissioner applied R.C.
5733.12(B) to Nestle’s refund claim and found that the claim was untimely.
         {¶ 11} The commissioner predicated his dismissal on the timing of the
“payment” under R.C. 5733.12(B). For taxable year 2000, Nestle obtained an
extension for its federal income tax return to September 17, 2001, which
automatically extended Nestle’s Ohio franchise-tax filing deadline for tax year
2001 to October 15, 2001. See R.C. 5733.13 (Ohio extended due date falls on the
15th day of the month following the federal extended due date). Since Nestle’s
payments for tax year 2001 consisted either of previously tendered estimated
payments or carry-forward from a previous year, the commissioner determined
that the three-year limitations period commenced on October 15, 2001. The
commissioner focused on that date because, pursuant to R.C. 5733.12(B), that
date was the extended due date to which those earlier payments related. As a
result, the commissioner concluded that the deadline for Nestle to claim a refund
for tax year 2001 fell on October 15, 2004. Under the commissioner’s reading of
the statute, the filing of a refund claim after that date would be time-barred.
         {¶ 12} On December 6, 2004, the Department of Development issued the
certificate verifying the amount of credit for the 2000 taxable year, i.e., for


1. The corporation franchise “tax year” liability is determined, under the net-income method, by
reference to a preceding “taxable year” during which the income was generated. See LSDHC
Corp. v. Zaino, 98 Ohio St.3d 450, 2003-Ohio-1911, 786 N.E.2d 877, ¶ 17. Accordingly, the
certificate applicable to the 2001 tax year is the certificate that is captioned “taxable year ended
2000.”




                                                 4
                                January Term, 2009




franchise tax year 2001. That agency computed the 2001 credit to be $43,696.80,
which is 60 percent of the new-employee withholding. Nestle thereafter filed its
application for refund on January 6, 2005, asking for a refund in the amount of
$43,697.
       {¶ 13} The commissioner ruled that the application was untimely because
it was filed more than three years after October 15, 2001, and he dismissed the
application. For its part, Nestle argued that it had timely filed its application
because the certificate that authorized the credit for the 2001 tax year was issued
by the Department of Development on December 6, 2004, and in Nestle’s view,
that event triggered the running of the three-year limitations period.
       {¶ 14} On appeal, the BTA rejected Nestle’s argument, and adopted the
Tax Commissioner’s position that the three-year limitations period began when
the tax payments as to 2001 were deemed to have been made: October 15, 2001.
As a result, Nestle filed its application too late, and the BTA accordingly affirmed
the commissioner’s dismissal.
       {¶ 15} In its appeal to the court, Nestle renews the arguments that it
asserted below.
                                    II. Analysis
            A. The accrual of the refund claim started the running of
                       R.C. 5733.12(B)’s limitations period
       {¶ 16} Under our cases, “ ‘[t]he BTA is responsible for determining
factual issues and, if the record contains reliable and probative support,’ ” the
court will affirm. Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856
N.E.2d 954, ¶ 14, quoting Am. Natl. Can Co. v. Tracy (1995), 72 Ohio St.3d 150,
152, 648 N.E.2d 483. On the other hand, the court “ ‘will not hesitate to reverse a
BTA decision that is based on an incorrect legal conclusion.’ ” Satullo, id.,
quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino (2001), 93
Ohio St.3d 231, 232, 754 N.E.2d 789. This appeal raises a question of law: with




                                          5
                             SUPREME COURT OF OHIO




respect to the job-creation tax credit at issue, did the three-year limitation period
prescribed by R.C. 5733.12(B) commence with the deemed payment of taxes in
2001 or with the issuance of the certificate that legally verified the amount of the
credit to be allowed for tax year 2001?
       {¶ 17} R.C. 5733.12(B) provides as follows:
       {¶ 18} “[A]n application to refund * * * the amount of taxes * * * that are
overpaid, paid illegally or erroneously, or paid on any illegal, erroneous, or
excessive assessment * * * shall be filed with the tax commissioner, on the form
prescribed by the commissioner, within three years from the date of the illegal,
erroneous, or excessive payment of the tax * * *. For purposes of division (B) of
this section, any payment that the applicant made before the due date or extended
due date for filing the report to which the payment relates shall be deemed to have
been made on the due date or extended due date.”
       {¶ 19} According to the commissioner, the statute’s plain language starts
the running of the three-year period at the time the payment is made (or, as in the
present case, was deemed to have been made). Nestle argues that when the
payments in this case were deemed to be made, they were not yet illegal or
excessive; they became illegal and excessive retroactively when the Department
of Development issued the certificate for taxable year 2000, which verifies the
amount of credit for tax year 2001. Alternatively, by verifying the credit for tax
year 2001, the certificate allowed the taxpayer and the state to ascertain the
entitlement to the credit for the first time in December 2004.
       {¶ 20} In sum, Nestle contends in various ways that the refund claim
accrued on December 6, 2004, and that the limitations period began running on
that date. Under this interpretation, the filing of Nestle’s application for refund
the following month fell well within the three-year period.
       {¶ 21} We agree with Nestle. R.C. 5733.12(B) in essence creates a refund
claim subject to a three-year limitations period. See Coca-Cola Bottling Corp. v.




                                          6
                                January Term, 2009




Lindley (1978), 54 Ohio St.2d 1, 5, 8 O.O.3d 1, 374 N.E.2d 400, fn. 2 (R.C.
5733.12 “provide[s] a substantive right—the right to a refund”). Entitlement to
the refund is predicated on two elements: first, that a payment was made; second,
that the payment was illegal, erroneous, or excessive. Because the taxpayer must
prove the illegal, erroneous, or excessive character of a payment in order to
qualify for a refund, a refund claim does not accrue until all circumstances are
present that cause the payment to be illegal, erroneous, or excessive. See Ohio
Bell Tel. Co. v. Evatt (1943), 142 Ohio St. 254, 258, 27 O.O. 201, 51 N.E.2d 718;
accord Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23
O.O.3d 346, 433 N.E.2d 147, paragraph two of the syllabus (cause of action for
negligence does not arise until damage ensues); State ex rel. Teamsters Local
Union 377 v. Youngstown (1977), 50 Ohio St.2d 200, 203-204, 4 O.O.3d 387, 364
N.E.2d 18 (“Normally, a cause of action does not accrue until such time as the
infringement of a right arises”).
       {¶ 22} In Ohio Bell, we addressed a claim that public-utility excise taxes
already paid should be abated. Several years after the tax payments at issue, the
Public Utilities Commission ruled that the rates Ohio Bell charged during those
earlier years had been excessive, and the commission ordered Ohio Bell to make
restitution to customers. Because Ohio Bell had paid excise taxes on the amount it
was being ordered to refund to its customers, the company sought an abatement of
those taxes. Ohio Bell pursued that claim through a provision of the former
General Code that is now codified at R.C. 5703.05(B).
       {¶ 23} R.C. 5703.05(B) furnishes a procedure for a taxpayer to receive a
“certificate of abatement” when taxes have been overpaid, but only if the
overpayment occurred “within five years prior to the making of [the] application.”
At the time relevant to the Ohio Bell decision, the statute allowed an application
by a party “claiming to have overpaid * * * within five years prior to the making
of [the] application but not prior to January 1, 1938.” G.C. 1464-3, 118 Ohio




                                        7
                             SUPREME COURT OF OHIO




Laws 346. Ohio Bell applied for the abatement less than five years after the
Public Utilities Commission had ordered the utility to make restitution to its
customers, but the commissioner denied relief because Ohio Bell actually
tendered the payments before January 1, 1938 (and also more than five years
before Ohio Bell filed its application).
       {¶ 24} In rejecting the commissioner’s position, we noted that “[t]here
was nothing illegal or erroneous about the payment of taxes when originally
made,” and that payment “became illegal or erroneous only when the Public
Utilities Commission made its order of refund.” Id., 142 Ohio St. at 258, 51
N.E.2d 718. We concluded that “the overpayment took place on that date [i.e., the
date of the PUCO order] and came within the time fixed by law.” Id.
       {¶ 25} To be sure, in Coca-Cola, 54 Ohio St.2d 1, 8 O.O.3d 1, 374 N.E.2d
400, we distinguished Ohio Bell by observing that unlike the statute at issue in
Ohio Bell, R.C. 5733.12 (at that time) “clearly mandate[d] a three-year deadline
and state[d] that the deadline controls regardless of the date of ascertainment [that
the payment was illegal].” Coca-Cola at 5. Thus, in Coca-Cola we had “no
cause to construe the statute liberally in favor of the taxpayer as we did in Ohio
Bell.” Id. But we are free to apply Ohio Bell to the present case because the
distinction we drew in Coca-Cola evaporated in 1985. That year, the General
Assembly removed the ascertainment language from R.C. 5733.12(B) and rewrote
the statute so that it now resembles the language at issue in Ohio Bell. S.B. No.
127, 116th General Assembly, 141 Ohio Laws, Part I, 334. As a result, Coca-
Cola does not diminish the significance of Ohio Bell for analyzing the present
case under current R.C. 5733.12(B).
       {¶ 26} Applying the reasoning of Ohio Bell to this case requires us to
consider when the payments at issue became illegal and excessive under R.C.
5733.12(B). The agreement between Nestle and the Department of Development
is not part of the record, but its important terms are evidenced by the certificates.




                                           8
                                     January Term, 2009




We infer that the agreement entitled Nestle each year to a refundable credit in the
amount of 60 percent of the income-tax withholding associated with newly
created jobs. Neither R.C. 122.17 nor 5733.0610 states in so many words whether
the credit may be claimed before the Department of Development has issued the
certificate verifying the exact amount of credit for a particular tax year, but the
statutes do plainly make such verification an essential element of the process.
R.C. 122.17(D)(7).        We note that the BTA did not hold, nor does the Tax
Commissioner argue, that the existence of the agreement by itself creates
entitlement to the credit for any particular tax year.
        {¶ 27} In fact, the language of the statutes supports Nestle’s argument.
As discussed, R.C. 122.17 requires a formal agreement between the taxpayer and
the Ohio Tax Credit Authority. Under R.C. 122.17(D)(7), the agreement must
require the Department of Development to “verify the amounts reported” by the
taxpayer and “issue a certificate to the taxpayer stating that the amounts have
been verified.” In addition, R.C. 122.17(H) required – at the time relevant to this
case – that a “taxpayer claiming a credit under this section shall submit to the tax
commissioner a copy of the director of development’s certificate of verification
under division (D)(7) of this section for the taxable year,” and went on to state
that “failure to submit a copy of the certificate does not invalidate a claim for a
credit.”2 147 Ohio Laws, Part I, 985.
        {¶ 28} R.C. 5733.0610(A) states that a refundable credit “granted by the
tax credit authority under section 122.17 of the Revised Code may be claimed
under this chapter.”       Taken together, the language of the various provisions

2. In a provision effective March 30, 2006, the 126th General Assembly amended this part of the
statute to require that the submission be made “with the taxpayer’s tax report or return for the
taxable year.” The failure to attach the certificate did not invalidate the claim, so long as the
taxpayer submitted it to the commissioner “within sixty days after the commissioner * * * requests
it.” 2006 Am.Sub.H.B. No. 530. The addition of the filing-with-return requirement could alter
the analysis in this opinion, but because the language was enacted after the period at issue, we
decline to consider it.




                                                9
                                  SUPREME COURT OF OHIO




indicates the legislative intent that (1) the taxpayer will typically “claim” the
credit after it has been “granted,” and (2) the issuance of the certificate completes
the “grant” of the credit – a construction that allows the taxpayer to comply with
the requirement of former R.C. 122.17(H) that the certificate be submitted when
the taxpayer claims the credit.3
        {¶ 29} To the extent that the statutes in effect in 2001 and 2004 were
ambiguous on the point, the principle of strict construction dictates that the
verification certificate be construed as a prerequisite to claiming the credit. Quite
simply, the jobs credit constitutes a partial tax exemption, with the result that the
statutes granting the credit must be construed restrictively against the claim of
exemption. See H.R. Options, Inc. v. Wilkins, 102 Ohio St.3d 1214, 2004-Ohio-
2085, 807 N.E.2d 363, ¶ 2 (exclusion from taxation must be “construed strictly
against the taxpayer” [emphasis sic]); Ares, Inc. v. Limbach (1990), 51 Ohio St.3d
102, 104, 554 N.E.2d 1310 (when seeking tax reduction, taxpayer must show that
statute “clearly express[es] the exemption”). This principle applies a fortiori in a
case like the present, because the credit in this case is refundable and the taxpayer
may be entitled to a cash payout from the state that exceeds the amount of tax
paid in.
        {¶ 30} We conclude that just as the PUCO order retroactively established
that the excise-tax payments in Ohio Bell had been illegal and excessive, the
issuance on December 6, 2004, of the certificate for taxable year 2000



3. In the 2005 budget bill, the General Assembly extended the credit to insurance companies that
pay taxes on gross premiums. 2005 Am.Sub.H.B. No. 66. In connection with that amendment,
the legislature added claiming provisions to the gross-premium tax laws. See R.C. 5725.32;
5729.032. Both those provisions explicitly state that the credit may be claimed “[u]pon the
issuance of a tax credit certificate by the director of development.” Had these provisions been
enacted originally as part of the same session law with R.C. 5733.0610, principles of construction
would militate toward finding that the legislature intended to create different procedures by using
different words. But we construe the additional language of the more recent provisions as simply
stating what the earlier provisions already intended, albeit with greater directness.




                                                10
                                January Term, 2009




retroactively established the illegal and excessive character of payments
attributable to the tax year 2001 up to the amount of the credit (and also that the
taxpayer would be entitled to collect the excess of credit over payments, if any).
At that point, the refund claim accrued for purposes of the limitations period, and
as a result, the filing of the refund claim in January 2005 was timely.
          B. The cases the Tax Commissioner relies on are not apposite
       {¶ 31} The Tax Commissioner argues that Coca-Cola, 54 Ohio St.2d at 5,
8 O.O.3d 1, 374 N.E.2d 400, controls the present case.            According to the
commissioner, Coca-Cola establishes that refund claims under R.C. 5733.12(B)
are always subject to a limitations period that begins to run with the making (or
deemed making) of a payment. We disagree.
       {¶ 32} As already discussed, entitlement to a refund under R.C.
5733.12(B) is predicated on two elements: (1) the making of a payment that (2)
was illegal, erroneous, or excessive. In the usual case, a payment is refundable
because it was illegal or in error at the time the payment is made. This mistake
could consist of a factual error by the taxpayer in marshaling its assets or
computing its income, or it could result from a misunderstanding of the law.
       {¶ 33} Coca-Cola itself falls into this usual category. In that case, the
corporate taxpayers had paid for the tax year 1972 under the income method for
computing franchise-tax liability, which the legislature had newly enacted during
1971. In 1975, this court decided that imposing the income method in tax year
1972 on taxpayers whose accounting year had already ended before the income
method became law violated the Ohio Constitution. Lakengren, Inc. v. Kosydar
(1975), 44 Ohio St.2d 199, 73 O.O.2d 502, 339 N.E.2d 814. In response to
Lakengren, the taxpayers in Coca-Cola filed refund claims, but this court held
that the refund claims were barred by the three-year limitation set forth in R.C.
5733.12(B).




                                         11
                             SUPREME COURT OF OHIO




        {¶ 34} Given these underlying facts, Coca-Cola does not resolve the issue
presented by Nestle in this case because the taxpayers in Coca-Cola paid the tax
in compliance with a law that was, at the very time the payments were made,
unconstitutional. Thus, illegality clearly coincided with the payments in Coca-
Cola, and as a result, Coca-Cola does not on its face foreclose Nestle’s argument
in this case.
        {¶ 35} Moreover, Coca-Cola did not involve a taxpayer seeking the
benefit of a refundable credit. To the extent that such a credit exceeds the amount
of actual payments that have been made, there has been no “payment,” and as a
result, there is no absolute point of reference to tell the taxpayer when to file its
refund claim.     Coca-Cola’s iron link between the running of the three-year
limitations period and an actual past payment does not provide direct authority for
deciding the present case.
        {¶ 36} The commissioner also places heavy reliance on SCM Chems., Inc.
v. Wilkins, 106 Ohio St.3d 43, 2005-Ohio-3676, 831 N.E.2d 417, but that case
does not advance his claim. Quite simply, the issue the court confronted in SCM
Chems. differed from the one presented in this case. In the present case, Nestle
and the Tax Commissioner dispute when the three-year limitations period under
R.C. 5733.12(B) began to run. There was no such dispute in SCM Chems.
        {¶ 37} In SCM Chems., the taxpayer pointed to a provision in the
substantive law of pollution-control certificates that made those certificates
effective retroactively. The taxpayer then argued that when a pollution-control
certificate was issued after the two-year period for amending property tax
assessments had expired pursuant to R.C. 5711.25, the court should ignore the
two-year limitation. The court disagreed and enforced the limitation. Nothing in
the SCM holding addresses when the three-year limitations period ought to begin
to run in this case.
           C. Ohio Adm.Code 122:7-1-06(E) does not alter the outcome




                                         12
                                     January Term, 2009




        {¶ 38} Although neither party has cited it, Ohio Adm.Code 122:7-1-06(E)
potentially applies to this case. Subsection (E) was added in 2003 and became
effective November 10, 2003. 2003-2004 Ohio Monthly Record 833-834. As a
result of that amendment, Ohio Adm.Code 122:7-1-06(E) now provides that the
Director of Development should not issue a verification certificate if a taxpayer
“has not substantiated to the satisfaction of the director the amounts reported by
the taxpayer * * * by the date the refund statute of limitations expires for that
taxable year, as provided in division (B) of section 5733.12 * * * of the Revised
Code.”4
        {¶ 39} We recognize that this provision views the limitations period as
running from some time before the verification certificate has been issued. But
concern for the viability of the rule cannot distract us from our duty to construe
and apply the statutes that were in force when this case arose.
        {¶ 40} To be sure, R.C. 122.17(I) confers authority upon the Director of
Development (in consultation with the commissioner and the Superintendent of
Insurance) to “adopt rules necessary to implement” the tax credit. As a general
matter, “an administrative rule that is issued pursuant to statutory authority has
the force of law unless it is unreasonable or conflicts with a statute covering the
same subject matter.” State ex rel. Celebrezze v. Natl. Lime & Stone Co. (1994),
68 Ohio St.3d 377, 382, 627 N.E.2d 538, citing Youngstown Sheet & Tube Co. v.
Lindley (1988), 38 Ohio St.3d 232, 234, 527 N.E.2d 828.                       But while R.C.

4. The rule’s effective date precedes the issuance of the verification certificate on December 6,
2004. We presume that the rule would apply and, to the extent our holding in this case does not
completely eclipse the rule, it would have prohibited the Department of Development from issuing
the verification certificate if Nestle had not timely submitted documentation. Moreover, since the
record is silent, we must also presume that the Director of Development found that Nestle had
timely submitted its documentation so that the issuance of the certificate was valid. See State ex
rel. Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 590, 50 O.O. 465, 113 N.E.2d 14
(“in the absence of evidence to the contrary, public officers * * * will be presumed to have
properly performed their duties and not to have acted illegally but regularly and in a lawful
manner”).




                                               13
                                  SUPREME COURT OF OHIO




122.17(I) surely confers authority on the Department of Development to establish
reasonable deadlines for submitting documentation, we do not read that provision
as authorizing the Director of Development to provide the definitive construction
of R.C. 5733.12(B).5 See Adams Fruit Co., Inc. v. Barrett (1990), 494 U.S. 638,
649, 110 S.Ct. 1384, 108 L.Ed.2d 585 (no deference to agency’s regulation where
Congress did not delegate administrative authority over the statutory provisions at
issue); Ardestani v. Immigration & Naturalization Serv. (1991), 502 U.S. 129,
148, 112 S.Ct. 515, 116 L.Ed.2d 496.
                                        III. Conclusion
         {¶ 41} For all the foregoing reasons, the BTA erred when it affirmed the
commissioner’s dismissal of Nestle’s refund claim. We therefore reverse and
remand for further proceedings.
                                                                               Decision reversed
                                                                           and cause remanded.
         MOYER,       C.J.,    and    PFEIFER,        LUNDBERG       STRATTON,        O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                     __________________
         Vorys, Sater, Seymour & Pease, L.L.P., Raymond D. Anderson, and
David A. Froling, for appellant.
         Richard Cordray, Attorney General, and Sherry Maxfield and Alan P.
Schwepe, Assistant Attorneys General, for appellee.
                                 ______________________




5. We presume that the Director of Development consulted with the Tax Commissioner when the
rule was promulgated, and the commissioner is charged with administering R.C. 5733.12(B) and
other refund provisions. But the commissioner has not apprised the court of his role in that
putative consultation; indeed, the commissioner has not even cited the rule in spite of the fact that
it arguably applies to this case and arguably supports his position. Under these circumstances, we
attach no significance to any consultation under R.C. 122.17(I).




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