Mancino v. Tracy

[This opinion has been published in Ohio Official Reports at 

.]




      MANCINO ET AL., APPELLANTS, V. TRACY, TAX COMMR., APPELLEE.
                      [Cite as Mancino v. Tracy, 

.)
Taxation—IRS adjustment of taxpayer’s 1986 and 1987 federal adjusted gross
        income—Amended Ohio returns reflecting increase not filed—R.C.
        5747.13 barring Tax Commissioner from collecting deficiency amounts
        more than four years after taxpayer’s filing of return not applicable, when.
(Nos. 96-2165 and 96-2176--Submitted April 22, 1997--Decided June 25, 1997.)
      Appeals from the Board of Tax Appeals, Nos. 95-A-890 and 95-A-891.
                                  __________________
        {¶ 1} Paul A. and Carole A. Mancino, appellants, timely filed their 1986
and 1987 Ohio income tax returns.             The Internal Revenue Service (“IRS”),
however, audited the Mancinos’ federal income tax returns for these years and
raised their federal adjusted gross income. The Mancinos did not file amended
Ohio returns reflecting these increases.
        {¶ 2} The IRS informed the Tax Commissioner, appellee, of the increases
in adjusted gross income. The commissioner sent billing notices to the Mancinos
proposing to increase their 1986 Ohio tax, including interest, to $5,755.95 and their
1987 Ohio tax, including interest, to $4,794.38 to account for these increases. After
some correspondence, the Mancinos paid these amounts and filed refund
applications for each year. The commissioner denied the claims, and the Board of
Tax Appeals, on appeal, affirmed the commissioner’s orders.
        {¶ 3} The causes are now before this court upon appeals as of right.
                                  __________________
        Paul Mancino, Jr., for appellants.
        Betty D. Montgomery, Attorney General, and Richard C. Farrin, Assistant
Attorney General, for appellee.
                             SUPREME COURT OF OHIO




                               __________________
       Per Curiam.
       {¶ 4} The Mancinos argue that R.C. 5747.13 bars the commissioner from
collecting the deficiency amounts because he sought the amounts more than four
years after the Mancinos had timely filed their returns. The commissioner replies
that R.C. 5747.13 plays no role in these cases because this statute bars assessments.
He, instead, claims he did not assess the Mancinos; he requested that they pay what
would be due in amended returns based on the federal adjustments to be filed under
R.C. 5747.10. We agree with the commissioner and affirm the board’s decisions.
       {¶ 5} Former R.C. 5747.10 stated:
       “If any of the facts, figures, computations, or attachments required in a
taxpayer’s annual return to determine the tax charged by this chapter or Chapter
5748. of the Revised Code must be altered as the result of an adjustment to the
taxpayer’s federal income tax return, whether they are initiated by the taxpayer or
the Internal Revenue Service, and such alteration affects the taxpayer’s tax liability
under this chapter or Chapter 5748. of the Revised Code, the taxpayer shall file an
amended return with the tax commissioner in such form as the commissioner
requires. The amended return … shall be filed 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 credit resulting
therefrom, has been assessed or paid, whichever occurs first ….
       “The amended return shall be deemed a return subject to assessment under
section 5747.13 of the Revised Code for the purpose of assessing any additional tax
due under this section, together with any applicable penalty and interest. …” (139
Ohio Laws, Part I, 1465-1466.)
       {¶ 6} Thus, if the IRS adjusts a taxpayer’s federal adjusted gross income,
and the adjustment affects the taxpayer’s Ohio income tax liability, the taxpayer
must file an amended return within sixty days of this determination.             The



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                                January Term, 1997




commissioner, moreover, may assess the amended return. See Gibson v. Limbach
(1991), 

, 

.
       {¶ 7} Former R.C. 5747.13(C) (now, renumbered 5747.13[A]) does set
forth a statute of limitations barring the issuance of assessments:
       “No assessment shall be made or issued against an employer or taxpayer
more than four years after the final date the return subject to assessment was
required to be filed or the date the return was filed, whichever is later. …” (142
Ohio Laws, Part II, 2933.)
       {¶ 8} However, the event to be barred by R.C. 5747.13(C), an assessment,
did not occur here. Under R.C. 5747.10, the commissioner could have issued
assessments against the Mancinos, and other provisions of R.C. 5747.13 set forth
the procedure. Nevertheless, the commissioner notified the Mancinos of the
deficiencies and requested payment. The Mancinos paid the amounts without the
commissioner issuing assessments. Consequently, the Mancinos cannot invoke this
bar because the commissioner did not issue assessments. 

, 

.
       {¶ 9} The Mancinos offer no other reason why the commissioner should
refund the payments. Accordingly, we affirm the board’s decisions.
                                                                 Decisions affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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