[This opinion has been published in Ohio Official Reports at
80 Ohio St.3d 52.]
SKURATOWICZ, OFFICER OF MONEX CORPORATION, APPELLANT, v. TRACY,
TAX COMMR., APPELLEE.
[Cite as Skuratowicz v. Tracy, 1997-Ohio-358.]
Taxation—Sales tax—President and majority shareholder of corporation
personally liable for sales tax assessments, when—R.C. 5739.33, applied.
(No. 96-2751—Submitted July 22, 1997—Decided October 8, 1997.)
APPEAL from the Board of Tax Appeals, No. 94-T-1510.
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{¶ 1} John S. Skuratowicz, appellant, was the president and majority
shareholder of Monex Corporation. Monex purchased and operated the Graceland
Coin & Stamp store in Columbus. The store bought and sold precious metals,
collectibles, and stamps.
{¶ 2} As president of Monex, Skuratowicz hired, trained, and evaluated
store employees. Skuratowicz, who spent much of his time away from the store at
coin shows, managed the store under a policy, established by a former co-principal
of Monex, that the store clerks were responsible for obtaining exemption
certificates on purchases or collecting sales tax. Evidently, the store clerks, who
were high-school distributive education students, did not execute this policy
acceptably. Consequently, the Tax Commissioner, appellee, issued a sales tax
assessment against Monex for $310,267.19, plus penalty, for the audit period of
January 1983 through June 1986.
{¶ 3} Monex’s business failed and it was dissolved. The commissioner,
nevertheless, issued an assessment against Skuratowicz as a responsible corporate
officer of Monex. According to the testimony, Skuratowicz performed the
accounting operations for Monex, including preparing and signing sales tax returns.
SUPREME COURT OF OHIO
During the audit period, he was the only individual holding check-signing
authority.
{¶ 4} On appeal, the Board of Tax Appeals (“BTA”) found:
“… As president, Mr. Skuratowicz had authority over the general
business operations, as well as over Monex’s employees. He had the authority to
hire and fire employees, and he participated in the training of the employees.
Further, he engaged in the periodic review of employee performance. Regardless
of the role the student-workers had in handling the sales transactions, it is Mr.
Skuratowicz who had the responsibility for seeing that Monex’s sales tax
obligations were satisfied.”
{¶ 5} The BTA continued:
“… He kept the books, and saw that the sales tax forms were prepared
and filed. Given our review of Mr. Skuratowicz’s entire relationship to Monex and
the Graceland store, we find that the record supports a conclusion that Mr.
Skuratowicz is among that class of officers who can be held accountable for a
corporation’s failure to file sales tax returns and/or to remit the tax when due.”
{¶ 6} Accordingly, the BTA affirmed the commissioner’s order assessing
Skuratowicz for the liability of the Graceland store, as reduced by the
commissioner’s prior recalculation of the underlying corporate assessment.
{¶ 7} The matter is before this court upon an appeal as of right.
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Bailey & Slavin, and Richard C. Slavin, for appellant.
Betty D. Montgomery, Attorney General, and Richard C. Farrin, Assistant
Attorney General, for appellee.
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Per Curiam.
{¶ 8} R.C. 5739.33 imposes personal liability on a responsible corporate
officer for a corporation’s sales tax. During the audit period in question, it read:
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January Term, 1997
“If any corporation required to file returns and to remit tax due to the state
under the provisions of sections 5739.01 to 5739.31, inclusive, of the Revised Code,
fails for any reason to make such filing or payment, any of its officers, or employees
having control or supervision of or charged with the responsibility of filing returns
and making payments, shall be personally liable for such failure. The dissolution
of the corporation shall not discharge an officer’s or employee’s liability for a prior
failure of the corporation to file returns or remit tax due. The sum due for such
liability may be collected by assessment in a manner provided in section 5739.13
of the Revised Code.” (132 Ohio Laws, Part I, 2029.)
{¶ 9} Skuratowicz argues that the corporate policy, directing the employees
to collect the sales tax or obtain the customer’s signature on an exemption
certificate, shields Skuratowicz from liability. The commissioner replies that
Skuratowicz is exactly the type of person R.C. 5739.33 renders liable for the
corporation’s sales tax. The commissioner is correct.
{¶ 10} In Spithogianis v. Limbach (1990), 53 Ohio St.3d 55,
559 N.E.2d
449, Spithogianis, the president of the taxpayer corporation, had authority to
oversee the operations of the corporation. He spent only one or two days per month
doing this, so he hired a consultant to direct the corporation’s daily operations.
Spithogianis also authorized the consultant to approve all corporate checks.
Spithogianis participated in some of the corporation’s operations but generally
delegated responsibility for filing sales tax returns and paying the tax to other
corporate employees. The BTA found that Spithogianis was not liable because he
delegated the tax collection and remission duties to others throughout the audit
period.
{¶ 11} We, however, reversed the BTA’s decision and held Spithogianis
liable for the corporate assessment. We said, 53 Ohio St.3d at 57,
559 N.E.2d at
451:
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SUPREME COURT OF OHIO
“The General Assembly intended, through the enactment of R.C. 5739.33,
to hold those officers or employees who are in charge of the operations of the
defaulting corporation personally liable for unpaid sales tax, if such persons filed
returns or paid taxes, or controlled or supervised those others who performed those
tasks, or had responsibility to such tasks. R.C. 5739.33 does not permit responsible
officers or employees to escape liability by delegating those duties to others.”
Accord McGlothin v. Limbach (1991), 57 Ohio St.3d 72,
565 N.E.2d 1276.
{¶ 12} Skuratowicz had the duty to see that Monex’s employees collected
the correct amount of sales tax from Monex's customers and remitted the correct
amount to the state. Since he failed in his duty, R.C. 5739.33 renders him
personally responsible for Monex’s tax liability.
{¶ 13} Skuratowicz also argues that the BTA denied him due process. He
claims the BTA did not permit him to challenge the underlying corporate
assessment. Skuratowicz, however, did not list in his notice of appeal to the BTA
that he planned to challenge the underlying assessment.
{¶ 14} Under R.C. 5717.02, a taxpayer must specify error in the notice of
appeal to the BTA for the BTA to have jurisdiction over the error. Kern v. Tracy
(1995), 72 Ohio St.3d 347,
650 N.E.2d 428. Thus, the BTA had no jurisdiction to
consider the challenge to the underlying assessment. Hence, the BTA could not
deny Skuratowicz due process for a claim that Skuratowicz did not ask the BTA to
process.
{¶ 15} Finally, Skuratowicz claims error over the uncertain amount of his
assessment. The amount is uncertain because the Monex assessment had been
reduced on appeal by the corporation (BTA No. 87-H-976). The BTA correctly
resolved the dilemma over how much Skuratowicz should pay when, in this case,
it ordered the commissioner to change Skuratowicz’s assessment amount to the
reduced underlying assessment amount of the corporation.
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January Term, 1997
{¶ 16} Accordingly, we affirm the BTA’s decision because it is reasonable
and lawful.
Decision affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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