[Cite as Wagenknecht v. Levin, 121 Ohio St.3d 13, 2008-Ohio-6812.]




       WAGENKNECHT, APPELLANT, v. LEVIN, TAX COMMR., APPELLEE.
      [Cite as Wagenknecht v. Levin, 121 Ohio St.3d 13, 2008-Ohio-6812.]
R.C. 5747.10 – Petition for reassessment – Failure to make required payment on
        the assessment – Board of Tax Appeals’ decision affirmed.
     (No. 2008-0095 — December 17, 2008 — Decided December 31, 2008.)
            APPEAL from the Board of Tax Appeals, No. 2006-T-1007.
                                 __________________
        Per Curiam.
        {¶ 1} Appellant, Carl R. Wagenknecht Jr., contests an assessment of
unpaid personal income tax as to the 1996 tax year, which the Tax Commissioner
issued against him on December 8, 2005. Wagenknecht initiated the present
proceedings by filing a petition for reassessment, dated February 7, 2006. The
commissioner’s final determination, issued on May 19, 2006, dismissed the
petition on jurisdictional grounds. On appeal, the Board of Tax Appeals (“BTA”)
granted the commissioner’s motion and summarily affirmed that dismissal. After
a careful review of the record in light of Wagenknecht’s arguments, we find no
legal error, and we affirm the BTA.
                                      Background
        {¶ 2} This case originates in a redetermination by the Internal Revenue
Service (“IRS”) of Wagenknecht’s adjusted gross income (“AGI”) for 1996.
When the IRS makes such an adjustment, R.C. 5747.10 requires an Ohio taxpayer
to file an amended Ohio return that incorporates the new AGI figure and
computes its effect on the Ohio tax liability for that year. The Tax Commissioner
found that Wagenknecht had failed to file the required Ohio personal income tax
return and proceeded to compute an Ohio income-tax deficiency based on the new
AGI figure. The commissioner also found that “[t]here is no further pending
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action before the Internal Revenue Service pertaining to this taxpayer for this tax
year” and that “[t]he assessment by the Internal Revenue Service has been finally
determined.” Finally, because Wagenknecht had failed to make the required
payment on the assessment as required by R.C. 5747.13(E)(2), the commissioner
ruled that he lacked jurisdiction to consider the petition.
       {¶ 3} Wagenknecht timely filed his notice of appeal at the Board of Tax
Appeals on August 3, 2006, asserting among other things that the commissioner
had erred by denying jurisdiction under R.C. 5747.13: the applicable division of
R.C. 5747.13, according to Wagenknecht, was R.C. 5747.13(E)(8), not R.C.
5747.13(E)(2). Additionally, Wagenknecht contended that the commissioner had
erred by finding that “[t]here is no further pending action before the Internal
Revenue Service pertinent to this taxpayer for this tax year” and pointed to two
cases, one pending in the United States Tax Court and one in the United States
District Court.
       {¶ 4} At the BTA, the commissioner filed a motion to affirm his final
determination, which Wagenknecht opposed. Wagenknecht’s response reiterated
his assertions that R.C. 5747.13(E)(2), with its prepayment requirement, did not
apply, and he referred once more to the two cases pertaining to tax year 1996 that
were pending in the federal courts. Wagenknecht also filed subpoenas to summon
witnesses to a hearing at the BTA and submitted a number of proposed hearing
exhibits.
       {¶ 5} On December 21, 2007, the BTA granted the commissioner’s
motion and affirmed his determination. The BTA found that the existing record
established that the IRS had increased Wagenknecht’s 1996 federal AGI by
$308,600. Although the adjustments altered his Ohio income tax liability, the
BTA found that Wagenknecht had “failed to file an amended return with [the
commissioner], as required by R.C. 5747.10,” with the result that “payment of the
assessment, i.e. the tax and interest, became a condition precedent to Mr.




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Wagenknecht’s ability to have the assessment reviewed” under R.C.
5747.13(E)(2). Because the record showed that Wagenknecht had not paid, the
BTA concluded that the commissioner was without jurisdiction to consider Mr.
Wagenknecht’s petition for reassessment.        By granting the commissioner’s
motion, the BTA in effect denied Wagenknecht a hearing, even with respect to
jurisdictional issues.
          {¶ 6} On appeal to this court, Wagenknecht urges three propositions of
law that broadly contest his obligation to file tax returns. Subsumed within the
sweep of his arguments is, once again, the contention that prepayment of the
assessment is not required on account of Wagenknecht’s having allegedly “filed
any required return that is applicable for 1996.” Wagenknecht also faults the
BTA for denying him a hearing, in particular one devoted to the jurisdictional
issues.
          {¶ 7} We hold that the BTA acted reasonably and lawfully when it
affirmed the commissioner’s dismissal for nonpayment of the assessment. We
therefore affirm.
                                     Analysis
     1. Wagenknecht failed to file the amended return that Ohio law requires.
          {¶ 8} As we recently discussed in Gibson v. Levin, 119 Ohio St.3d 517,
2008-Ohio-4828, 895 N.E.2d 548, ¶ 2, R.C. 5747.13(E)(2) requires prepayment
when the taxpayer has not filed an original or an amended return as required by
statute. In this case, the BTA affirmed the commissioner, who had issued an
assessment based on a federal adjustment to the AGI reported on the 1996 tax
return. Although Wagenknecht originally filed an Ohio tax return for 1996, he
did not file an amended return after the IRS adjusted the AGI figure. An amended
return is specifically required by R.C. 5747.10 “not later than sixty days after the
adjustment has been agreed to or finally determined for federal income tax
purposes or any federal income tax deficiency or refund, or the abatement or




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credit resulting therefrom, has been assessed or paid, whichever occurs first.” In a
situation such as that presented in this case, therefore, the taxpayer may not rely
on the filing of the original return to pursue his petition for reassessment. Gibson
¶ 8.
        {¶ 9} In his brief and at oral argument, Wagenknecht referred to an
affidavit he allegedly submitted to the Department of Taxation in April 2000.1 He
suggests that submitting such an affidavit may substitute for the filing of an
amended return pursuant to R.C. 5747.10. That is mistaken for one overriding
reason: R.C. 5747.10 specifically requires that an amended return be submitted
“in such form as the commissioner requires.” The affidavit plainly does not
equate to the Form IT-1040X, the standard amended return published by the Ohio
Department of Taxation, or to any other form prescribed by the commissioner.
Accordingly, Wagenknecht did not file an amended return pursuant to R.C.
5747.10.
               2. The IRS had “finally determined” Wagenknecht’s AGI.
        {¶ 10} The Tax Commissioner’s determination recited that the IRS
assessment had been “finally determined.”              On appeal of that determination,
Wagenknecht had the burden to prove that finding to be clearly unreasonable or
unlawful.      See Nusseibeh v. Zaino, 98 Ohio St.3d 292, 2003-Ohio-855, 784
N.E.2d 93, ¶ 10. The BTA correctly concluded that the taxpayer failed to carry
that burden.
        {¶ 11} Before this court, Wagenknecht renews his contention that the
federal liability remains in dispute in the two federal cases. That argument fails
because recent decisions issued by the federal courts in both cases show that the
relevant substantive issue – the amount of Wagenknecht’s 1996 AGI – is not, as a
matter of federal procedural law, a viable issue in either case. First, Wagenknecht

1. The document was attached as an exhibit to a brief filed at the BTA but does not constitute a
part of the statutory transcript certified by the commissioner to the BTA.




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                                      January Term, 2008




cites case No. 06-00726 in the United States District Court for the Northern
District of Ohio. But the United States Court of Appeals for the Sixth Circuit
recently affirmed the district court’s dismissal of the part of Wagenknecht’s
complaint that related to the amount of federal tax liability on the grounds that
jurisdiction “related to income tax liabilities lies solely in the Tax Court.”
Wagenknecht v. United States (C.A.6, 2008), 533 F.3d 412, 416.
         {¶ 12} As for the Tax Court case, that court decided on July 29, 2008 that
the “underlying tax liability” was not properly before the court because of a
procedural default by           Wagenknecht.          Wagenknecht v. Commr. of Internal
Revenue (2008), T.C. Memo. 2008-179. Indeed, the tax court granted complete
summary judgment to the government.
         {¶ 13} But even if Wagenknecht could argue that further appeals will
vindicate his position, another event triggered the unfulfilled requirement that he
file the amended return under R.C. 5747.10. The commissioner found that the
IRS had assessed the federal deficiency against Wagenknecht, and Wagenknecht
never proposed to show that the act of assessment did not occur.2 Under R.C.
5747.10, the federal government’s act of assessing the deficiency triggers the
filing requirement, regardless of the finality of the federal determination.
         {¶ 14} Accordingly, because Wagenknecht was required to file an
amended return and failed to do so, he was obligated to prepay the Ohio
assessment in order to receive a hearing on his petition for reassessment.
          3. The amended-return filing requirement was not unreasonable.
         {¶ 15} Wagenknecht also contends that Ohio law should not be construed
to require him to file a return declaring, under penalties of perjury, an adjusted tax

2. Indeed, the United States Tax Court stated that the IRS had assessed the federal deficiency for
1996 on January 10, 2003. T.C. Memo 2008-179 at 5. Ordinarily, we do not refer to decisions of
other courts in collateral cases to determine the operative facts in a case pending before this court.
In the present case, however, referring to the federal decisions for the assessment date is not




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liability so long as he continues to dispute it. This argument fails for two reasons.
First, Wagenknecht’s federal AGI had been “finally determined,” so that his
personal disagreement with that figure was no longer legally significant: R.C.
5747.10(A) required him to file an Ohio amended return and pay the amount of
any deficiency.       Second, Wagenknecht overlooks the possibility of filing
correspondence along with the return that could express his reservations about the
federal assessment.
     4. Wagenknecht advances substantive arguments that may not be heard.
       {¶ 16} Wagenknecht asserts that the federal government committed
factual and legal errors when it assessed a deficiency against him. His theories
include the contention that he was not required to file a federal Form 1040
because of IRS noncompliance with the federal Paperwork Reduction Act and the
nonapplicability of Form 1040 to the general public. Additionally, Wagenknecht
maintains that the commissioner may not rely on the validity of a federal
assessment when he issues an assessment for failure to pay under R.C.
5747.10(A) – on this view, the commissioner may issue his own assessment only
after performing an independent determination of the validity of the federal
assessment.
       {¶ 17} These arguments raise challenges to the merits of the assessment.
Ordinarily such arguments would be considered and resolved through the petition
for reassessment.      But Wagenknecht failed to invoke the commissioner’s
jurisdiction because he neither filed the amended return nor paid the assessment.
       {¶ 18} Although Wagenknecht appears to treat his substantive arguments
as bearing on the jurisdictional issue, they do not. The substantive arguments
contest the validity of the commissioner’s assessment; they do not, even if
meritorious, release Wagenknecht from the duties under R.C. 5747.10 or

improper because Wagenknecht places them at issue when he argues that those cases show a
continuation of the federal dispute.




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                                January Term, 2008




5747.13(E)(2) either to have filed the amended return or to pay the assessment in
order to receive consideration of his petition for reassessment.
             5. Wagenknecht was not entitled to a hearing at the BTA.
       {¶ 19} Wagenknecht sought a hearing at the BTA, and in his notice of
appeal to the court, he stated that the BTA “erred by not allowing Appellant to
present evidence at a hearing before the Board (which evidence was proffered in
Appellant’s Response In Opposition To Appellee’s Motion To Affirm The Tax
Commissioner’s Final Determination), to prove that the Appellant was not
required to make payment with the Petition for Reassessment.” In Brown v.
Levin, 119 Ohio St.3d 335, 2008-Ohio-4081, 894 N.E.2d 35, ¶ 10, we noted that
R.C. 5717.02, the statute that governs appeals from determinations of the Tax
Commissioner, states that “upon the application of any interested party,” the BTA
“shall order the hearing of additional evidence.” We observed that the mandatory
language of R.C. 5717.02 implied “as a general matter that the BTA has no power
analogous to that of a court in a civil action to grant summary judgment under
Civ.R. 56 or dismissal for failure to state a claim under Civ.R. 12(B)(6).” Id. at
¶ 11. Against that background, we must address the question whether the BTA
could decline to hold a hearing and affirm the dismissal of the petition for
reassessment.
       {¶ 20} We hold that the BTA properly issued a summary affirmance. The
only legitimate jurisdictional issues in the case concerned (1) Wagenknecht’s
obligation to file an amended return under R.C. 5747.10 and (2) his obligation to
prepay under R.C. 5747.13(E)(2).          Quite simply, the factual proof that
Wagenknecht proposed to present at the BTA related to the procedural and
substantive validity of the commissioner’s assessment, not to the commissioner’s
jurisdiction to consider the petition. Although Wagenknecht did offer to prove
the pendency of the federal cases, he never offered to prove that the federal
government had not issued an assessment – an event that by itself triggers the




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requirement to file the amended return. Nor did he assert that he had in fact paid
the assessment. Under these circumstances, the BTA correctly found an absence
of jurisdiction as a matter of law. As we have held, a litigant’s right to a hearing
under R.C. 5717.02 does not encompass a right to present evidence on points that
are not jurisdictionally before the BTA. See Brown, 119 Ohio St.3d 335, 2008-
Ohio-4081, 894 N.E.2d 35, ¶ 24.
                                    Conclusion
       {¶ 21} For all the foregoing reasons, the BTA acted reasonably and
lawfully when it affirmed the commissioner’s dismissal of the petition for
reassessment. We therefore affirm the BTA’s decision.
                                                                Decision affirmed.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Carl R. Wagenknecht Jr., pro se.
       Nancy Hardin Rogers, Attorney General, and Damion M. Clifford,
Assistant Attorney General, for appellee.
                           ______________________




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