As adopted to be effective May 1, 2008, pursuant to R.C.5703.14.
Prior rules, effective November 9, 2007 are available.
Prior rules, effective June 15, 2007 are available.
Prior rules, effective January 14, 2005 are available.
Prior rules, effective June 1, 2002, are available.
Prior rules, effective March 1, 1996, are available.
INDEX
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Rule |
Title |
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Organization |
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Appearance and practice before the board |
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Entry of appearance, change of address, and withdrawal of counsel |
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Notice of appeal |
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Service |
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Assignment of cases |
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Designation of complex litigation |
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Consolidations |
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Statutory transcripts |
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Interim procedural orders |
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Discovery |
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Motions |
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Subpoenas |
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Sanctions |
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Hearings |
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Briefs |
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Voluntary dismissals, joint remands, and stipulations |
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Failure to prosecute an appeal |
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Clerical amendments to a final order |
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Fees |
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Mediation conferences |
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Filings by facsimile transmission |
(A) The board of tax appeals shall hereinafter be referred
to as the "board." The office of the board shall be at Columbus, Ohio
and shall be open every day for the transaction of business from eight a.m. to
five p.m., Saturday, Sunday and legal holidays excepted. All notices of appeal,
submissions, requests and other communications shall be delivered to the board
at the "
(B) The board shall be in continuous session and open for the transaction of business during the hours herein provided. The sessions of the board shall be open to the public. Sessions shall stand and be adjourned without further notice thereof on its records.
(C) All of the proceedings of the board shall be entered on its journal which shall be a public record and each member's vote shall be recorded on the journal as cast.
(D) The board shall, from time to time, elect a chairperson and a vice-chairperson from its membership and shall enter such election in its journal.
5717-1-02 Appearance and practice before the board.
(A) In any proceeding before the board, a person who is a party to an appeal may appear and act on his or her own behalf. A person may appear and act on behalf of a partnership, limited liability company, or association of which he or she is a member or on behalf of any corporation for which he or she is an officer if such partnership, limited liability company, association, or corporation is a party to the appeal.
(B) All parties not acting on their own behalf shall be represented by an attorney at law authorized to practice before the courts of the state of Ohio.
(C) Persons authorized to practice law in other jurisdictions may, upon proper application to the board, be authorized to practice before the board in a particular proceeding. The applicant shall include an affidavit containing the following:
(1) A list of the jurisdictions in which the applicant has been authorized to practice law, including attorney registration numbers, if applicable;
(2) A statement as to whether the applicant is in good standing in each of the jurisdictions in which the applicant is authorized to practice law;
(3) A statement as to whether the applicant is the customary legal counsel for the party in jurisdictions where the applicant is admitted to practice law;
(4) A statement as to why the complexity or subject matter of the appeal requires representation by the applicant;
(5) A statement as to the extent of the applicant's prior and current appearances before this board and other Ohio tribunals; and,
(6) A statement that the applicant will become familiar with, and conform to, the board's rules of procedure and practice.
5717-1-03 Entry of appearance, change of address, and
withdrawal of counsel.
(A) Entries of appearance of counsel in any appeal shall be in writing. Such appearance may be effected by the signing of the notice of appeal or pleading or otherwise entered into the record after the scheduling of the appeal for hearing.
(B) Any party before the board of revision, who desires to participate in an appeal before the board of tax appeals as an appellee, shall enter an appearance with the board of tax appeals within thirty days of the mailing of notice of such appeal by the board of revision.
(C) Where two or more attorneys represent a party, one attorney shall be designated on each document filed as counsel of record to receive notices and service on behalf of that party.
(D) Any change of address of a party or counsel of record must be in writing and must be clearly designated as a change of address. A separate change of address must be filed in each appeal in which the party or counsel is involved, unless otherwise ordered by the board.
(E) In appeals involving real property, the parties shall notify the board of any change in ownership. The notice shall be in writing and shall include the current owner’s name and address.
(F) A request for withdrawal of counsel in any appeal shall be in writing and shall be filed no later than seven days subsequent to the board's issuance of the notice of hearing date and shall be effective upon filing. Thereafter, a request for withdrawal of counsel shall only be made upon motion and with leave of the board. A substitution of counsel or the party's written acknowledgement that the appeal shall proceed without counsel shall be filed within thirty days of the filing of the withdrawal request.
Effective:
11/9/2007
Promulgated Under: 5703.14
Statutory Authority: 5703.02, 5703.14
Rule Amplifies: 5703.02, 5717.03
Prior Effective Dates:
3/24/1989, 3/1/1996, 1/14/2005
(A) An appeal shall be commenced with the filing of a signed original notice of appeal within the time and manner prescribed by law.
(B) A caption in the following form should be substantially followed:
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"Ohio Board of Tax Appeals |
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____________________: |
Case No.____________________ |
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Appellant |
(Type of cause, e.g., Sales and Use Tax) |
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Address |
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____________________: |
Assessment Amount____________ |
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Appellee |
Amount in Controversy__________" |
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Address |
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(C) The notice of appeal should set forth the name, address, telephone number, and fax number, if available, of all parties together with the name, address, telephone number, fax number, and attorney registration number, if applicable, of appellant's authorized agent or attorney at law who executed such notice.
(D) A notice of appeal from a determination of the tax commissioner shall set forth the full name of the appellant and recite in clear and concise fashion the matter and amount in controversy and the action, or final determination appealed from, the errors complained of, and incorporate or attach a copy of the final order from which the appeal is taken. A copy of the notice of appeal filed with the board of tax appeals must also be filed with the tax commissioner within the time prescribed by law.
(E) An appeal taken from a decision of a county board of revision should be upon the form prescribed by the tax commissioner for such appeals. A copy of the notice of appeal filed with the board of tax appeals must also be filed with the county board of revision within the time prescribed by law.
(F) A notice of appeal from a decision of a municipal board of appeal shall set forth the full name of the appellant and recite in clear and concise fashion the matter and amount in controversy and the decision appealed from, the errors complained of, and incorporate or attach a copy of the decision from which the appeal is taken. A copy of the notice of appeal filed with the board of tax appeals must also be filed with both the municipal board of appeal and the opposing party within the time prescribed by law.
(G) Notices of appeal from a decision of a county board of revision, county budget commission, municipal board of appeal, or the tax commissioner filed by certified or express mail, properly addressed and with sufficient postage prepaid, shall be deemed filed on the date of the United States postmark placed upon the sender's receipt by the postal employee. Notices of appeal filed by an authorized delivery service designated by the tax commissioner shall be deemed filed on the date placed on the sender's receipt by an employee of the authorized delivery service. An appeal filed in person, by regular mail, facsimile, or other delivery method is effective upon receipt in the board office.
5717-1-05 Service.
<para_first>(A) Unless otherwise ordered by the board or an attorney
examiner, a copy of all motions or pleadings, briefs, papers and other
documents filed with the board subsequent to the notice of appeal shall be
served upon the counsel of record or the parties, if not represented by
counsel, at the time of filing.</para_first>
</level1><level1>
<para_first>(B) All motions or pleadings,
briefs, papers and other documents shall contain a certificate of service
indicating that the required service has been made, the manner in which service
was made, and the names and addresses of the parties or counsel of record upon
whom service was made.</para_first>
</level1><level1>
<para_first>(C) Service upon the
counsel of record or a party shall be made by delivering or mailing a copy to
counsel's or the party's last known address upon the board's records. Service
by mail is complete upon mailing and effective upon the third day following
mailing. Service may be made by fax transmission and will be deemed effective
in accordance with rule 5717-1-22 of the Administrative Code.</para_first>
</level1><level1>
<para_first>(D) To protect legitimate personal privacy interests, social
security and other personal identifying numbers (e.g., financial account
numbers) shall be redacted from all documents, including statutory transcripts,
before the documents are filed with the board. The responsibility for redacting
personal identifying numbers rests solely with the attorneys and parties who
file the documents. If personal identifying information has been redacted from
a document but is necessary for the board's determination of the case, the
board may order, upon motion or sua sponte, that an un-redacted copy of the document be filed.</para_first>
</level1></rule_text></rule>
Effective 5/1/
2008
R.C. 119.032
review dates: 30/01/2007 and 30/01/2012
Promulgated
Under: 5703.14
Statutory
Authority: 5703.02, 5703.14
Rule Amplifies:
5703.02
Prior Effective
Dates: 10/20/1997, 3/24/1989, 3/1/1996
5717-1-06 Assignment of cases.
Each appeal shall be assigned by the board to a specific attorney examiner. As a matter of administrative efficiency, appeals may be reassigned among the attorney examiners. If appeals assigned to different examiners are consolidated, generally the consolidated case shall be assigned to the attorney examiner having the lower-numbered case.
5717-1-07 Designation of complex litigation.
(A) As used in this rule, "complex litigation" has one or more of the following characteristics:
(1) It is related to one or more appeal(s) pending before the board of tax appeals;
(2) It involves more than four real parties in interest;
(3) It presents unusual or complex issues of fact;
(4) It involves problems which merit increased board supervision or special case management procedures.
(B) A party or counsel of record in complex litigation, as defined above, may, with the filing of the notice of appeal, serve and file a "notice of complex litigation" which briefly describes the nature of the appeal(s) and identifies by title and case number all other related appeals.
(C) Based upon a review of the notice and the statutory transcript of the subject appeal(s), the board may issue an order which will determine whether the subject appeal(s) shall be treated as complex litigation thereafter. An order under this subdivision may be altered and amended as the appeal(s) progresses through the board.
(D) Once the board has determined by order that an appeal(s) shall be treated as "complex litigation," the subject appeal(s) shall be diverted to and managed by the attorney examiner assigned to the appeal(s). Said examiner will take such action and enter such interim orders as the examiner deems appropriate for the expeditious resolution of the appeal(s), including waiver of an applicable board rule, when necessary.
5717-1-08 Consolidations.
When appeals involving common questions of law or fact are pending, the board, upon the timely application of any party showing good cause therefor, or upon its own motion, may order the appeals consolidated for hearing and other appropriate purposes, and may make such orders governing the proceedings as may be required.
5717-1-09 Statutory transcripts.
(A) Within forty-five days of the filing of a notice of appeal, the tax commissioner shall certify to the board a transcript of the record of the proceedings before the commissioner, together with all evidence considered by the commissioner in connection therewith.
(B) Within forty-five days of the filing of a notice of appeal, the county board of revision shall certify to the board a transcript of the record of the proceedings of the county board of revision pertaining to the original complaint, together with all evidence offered in connection therewith.
(C) Within forty-five days of the filing of a notice of appeal, the county auditor, on behalf of the budget commission, shall certify to the board a transcript of the record of the proceedings of the budget commission pertaining to the action from which the appeal is taken, together with all evidence presented to or considered by the commission.
(D) Within forty-five days of the filing of a notice of appeal, the municipal board of appeal shall certify to the board a transcript of the record of the proceedings before it, together with all evidence considered by it in connection therewith. If the issue appealed is addressed in a municipal corporation's ordinance or regulation, the municipal board of appeal shall include a copy of the ordinance or regulation in its certified transcript.
(E) Upon written request, the board may grant additional time to certify the transcript to the board.
5717-1-10 Interim
procedural orders.
(A) The board may delegate to its attorney examiners, with respect to all appeals, the authority to issue interim procedural orders on all motions or other pleadings which do not terminate the appeals and may include, but not be limited to, motions to consolidate, to compel discovery, and for sanctions. Said orders have the same force and effect as any order issued by the board. A party may, by written motion, seek the reconsideration by the board of the interim order. A motion for reconsideration shall not be the basis for continuance of a matter scheduled for hearing.
(B) On motion of the parties or at the board's request, the parties to a hearing may be required to appear at a prehearing conference and provide prehearing statements for purposes of issue identification, scheduling of discovery, or other prehearing matters to be identified prior to such conference.
(A) Discovery may
be permitted by deposition upon oral examination or written questions; written
interrogatories; production of documents or tangible things or permission to
enter upon land or other property; and requests for admissions. The "Ohio
Rules of Civil Procedure," effective July 1, 2006, shall be followed for
discovery purposes to the extent they are not inconsistent with other board
rules. The
(1) Discovery should be commenced by all parties promptly after the filing of a notice of appeal and should be completed as expeditiously as possible. Discovery should be completed not more than one hundred twenty days after the filing of the notice of appeal, which shall also be the last day for a party to seek involvement of the board in discovery matters. Upon motion and for good cause, the board may establish other specific times for completion of discovery or consideration of discovery motions.
(2) The board expects all counsel to provide for orderly, mutual discovery, freely exchanging discoverable information and documents. Counsel shall make all reasonable efforts to resolve discovery disputes by extra-judicial means, without intervention by the assigned attorney examiner. To the extent counsel may not resolve such disputes, then they may seek intervention of the attorney examiner to supervise discovery.
(3) Answers, objections or other responses to discovery requests shall be served within twenty-eight days after service of such requests unless the board orders or the parties agree to a different period of time. Depositions, interrogatories, and admissions shall not be filed with the board, unless the party intends to offer such discovery documents as evidence in a hearing; and in such event, such discovery documents shall be filed at least one day prior to the hearing.
(4) Any motion concerning discovery shall include only those specific portions of the discovery documents necessary for resolution of the motion and include counsel's statement describing all extra-judicial efforts undertaken to effect discovery.
(5) An expert may not be permitted to testify if he or she has not been timely identified prior to hearing. The parties may mutually agree to the exchange of any written reports of expert witnesses to be relied upon by them. Additionally, an expert's report or portions thereof may be excluded from evidence if the report was not made available in a timely fashion to complete a mutually agreed exchange of reports. In all events, the identity of the expert shall be provided to counsel at least fourteen days prior to hearing, except as otherwise ordered by the attorney examiner, and the written valuation reports shall be provided to counsel at least seven days prior to hearing, except as otherwise ordered by the attorney examiner.
(B) No hearing will be continued for purposes of discovery unless good cause is shown.
(C) Cost of discovery shall be paid by the party requesting such discovery.
(D) Upon the motion of a party and for good cause shown, the board may issue a protective order restricting discovery of a trade secret or other confidential research, development or commercial information.
5717-1-12 Motions.
(A) Unless made at a hearing or otherwise ordered, any request to the board shall be by written motion and shall be accompanied by a brief stating with particularity the grounds for the motion and citations of any authorities relied upon. Except for good cause shown, motions shall be filed within a reasonable period of time following filing of the notice of appeal so as to permit the board to consider and respond thereto in the orderly course of the board's business.
(B) Any party may file a brief contra within fourteen days after service of the motion, or such other period as the board or the attorney examiner requires.
(C) Any party may file a reply brief within seven days of service of a brief contra or such other period as the board or the attorney examiner requires.
(D) Motions for reconsideration of any decision of the board may be filed with the board only by a party or counsel of record in the proceedings before the board within thirty days of the date on which the decision was journalized. The filing of a motion for reconsideration shall not enlarge the period of time upon which an appeal may be taken from this board nor shall the filing of such motion suspend or toll the statutory appeal period. No motion for reconsideration will be determined by this board after an appeal to any court has been perfected.
(A) Upon written request of any party or by action of the board through a member, the secretary or its attorney examiners, subpoenas may be issued to compel the attendance of witnesses and the production of books, accounts, papers, records, documents, and testimony. If any party desires the issuance of subpoenas in order to compel the attendance of witnesses or the production of documents at a scheduled merit or motion hearing or deposition, the request shall be filed with the board at least fifteen days prior to such scheduled date.
(B) Upon request, the board shall supply blank subpoena forms to the requesting party so that the party may complete the form. The requesting party shall return the completed form to the board, along with a self-addressed stamped envelope. If the board issues the subpoena, the subpoena shall be delivered to the requesting party, who shall effect its service.
(C) Subpoenas shall be served by the party or other individual over the age of eighteen years, personally or by certified mail, return receipt requested.
(D) The party or other person serving the subpoena shall file a copy of the subpoena, properly endorsed as to service with the board, at or prior to the time of the hearing for which the subpoena was issued.
(E) Witnesses shall receive their subpoenas at least ten days prior to the hearing at which they are to appear.
(F) All subpoenas issued by this board are deemed continuing, should the hearing or deposition for which they have been issued proceed for multiple days or be continued to a later date. The party issuing a subpoena shall notify any subpoenaed witness(es) of any continuance of the board proceedings at which they were scheduled to appear.
5717-1-14 Sanctions.
(A) Failure to comply with the rules contained in agency designation 5717 of the Ohio Administrative Code or an order of the board may result in any of the following sanctions:
(1) The dismissal of the appeal;
(2) The prohibition against introducing matters into evidence in support of certain specifications of error or other parts of the notice of appeal;
(3) The prohibition against introducing designated matters into evidence;
(4) The prohibition against introducing expert opinion and testimony into evidence;
(5) The denial or suspension of appearing and qualifying as an expert witness in designated matters before the board;
(6) The denial or suspension of the right of any person to appear or practice before the board;
(7) The payment of reasonable expenses caused by the failure to obey an order including attorney fees, and costs incurred by the board from the disobedient party or the attorney advising such party;
(8) The judicial relief provided by sections 5703.03 and 5703.031 of the Revised Code.
(B) The board may impose sanctions to enforce compliance with this chapter and orders as the board deems just and appropriate after the opportunity for hearing. The repetitious nature of the disobedient party or advising attorney will be considered in determining the appropriate sanctions to be imposed.
(A) The board's secretary or the designated assignment commissioner may schedule each appeal for hearing, and written notice thereof shall be given to the parties or their counsel of record by ordinary mail.
(B) For good cause shown, hearings may be continued by the attorney examiner to whom the appeal has been assigned, by a board member, or by the board's secretary. The granting of a continuance is within the sound discretion of the board.
(C) Requests for continuances should be directed to the attorney examiner assigned the case and shall be filed, in writing, at least fourteen days prior to the scheduled hearing date, unless otherwise permitted by the board. If a continuance is requested for the reason that counsel or a witness is scheduled to appear for hearing on the same date before the board or another tribunal, a copy of the tribunal's scheduling notice should be attached to the request.
(D) A party seeking a continuance shall provide notice to, or obtain the consent of, all other parties. Any objection to a continuance must be filed, in writing, within three days of the filing of the continuance request, unless otherwise ordered by the board.
(E) As a condition to any continuance that may be granted, the board may require the parties to supply a definite date for hearing, as agreed upon by the parties and subject to the board's approval.
(F) A party may waive, in writing, its right to appear at a hearing, with the consent of the board. Where all parties have waived their right to a hearing, the board may proceed to decide the appeal upon the record.
(G) All hearings shall proceed in similar manner to a civil action, with witnesses to be sworn and subject to cross-examination.
(H) All hearings before the board shall be open to the public. Hearings may be recorded by stenographic means or by audio or video recording systems, as ordered by the board. An audio or video recording of a hearing will not be transcribed into written form unless found necessary by the board. A stenographic transcript or an audio or video recording shall be made available for examination at the board's office.
(I) Each party shall identify its witnesses to all parties and the attorney examiner at least fourteen days prior to the hearing, unless otherwise ordered by the attorney examiner. Each party shall provide copies of the documentary exhibits it plans to offer into evidence (reduced in size, if necessary) to all parties and the attorney examiner at least seven days prior to the hearing, unless otherwise ordered by the attorney examiner.
(A) At any time prior to the issuance of a final decision and order in an appeal, a board member or attorney examiner may request briefs from the parties. A party may also file a brief without being so requested. Briefs shall be filed within the time limits set by the board member or attorney examiner. An extension of time within which a brief is to be filed may be requested, in writing, from the attorney examiner assigned to the case. If any party fails to submit a brief within the established time limit, the board may proceed to determine the appeal and exclude the brief from its consideration. After the deadline for submission of briefs has passed, a party may file, as additional authority, relevant cases subsequently decided, but without further argument.
(B) With the exception of this board's decisions, copies of any unreported decisions cited in a brief shall be attached to the brief.
(C) Briefs amicus curiae may be filed with leave of the board and shall be filed according to the briefing deadlines established by the board.
5717-1-17 Voluntary dismissals, joint remands, and
stipulations.
(A) The board may dismiss an appeal upon the filing of an appellant's voluntary dismissal at any time prior to the commencement of the hearing. After commencement of the hearing, a dismissal may be granted with the consent of all of the parties and the approval of the board. The dismissal of an appeal is with prejudice.
(B) All voluntary dismissals, joint remands, and stipulations of value must be filed within thirty days of the date on which this board was notified of their existence. Failure to file within thirty days may result in the return of the subject appeal to the hearing schedule on an expedited basis or the board's consideration of the appeal upon the existing record.
5717-1-18 Failure
to prosecute an appeal.
The board may journalize an order determining an appeal upon the record or dismissing an appeal when the appellant fails to appear at a duly scheduled hearing on the merits and fails to notify the board that the hearing of additional evidence is waived.
5717-1-19 Clerical
amendments to a final order.
Amendments to a final order, arising out of an oversight, error or omission, may be made by the board or on the motion of any party through a correcting order.
(A) Upon request, the board will provide copies of documents in its records, for a reasonable fee.
5717-1-21 Mediation conferences.
(A) An appeal to the board may be resolved by mediation among the parties. Requests for diversion of an appeal to mediation may be made by any party to the board within ninety days of the filing of the notice of appeal. The board or the attorney examiner assigned the appeal may also recommend that an appeal be diverted to mediation. The diversion of an appeal to mediation will not alter the obligations established by these rules for the orderly disposition of an appeal, except for good cause, as determined by the board or its attorney examiners.
(B) The board's secretary or the designated assignment commissioner may schedule an appeal for a mediation conference, and written notice thereof shall be given to the parties or their counsel of record by ordinary mail.
(C) All parties or their counsel scheduled to appear at a mediation conference must secure authority to respond to settlement proposals offered at a mediation conference prior to such conference. All parties shall be prepared to discuss their positions and to explore any possibility of settlement of an appeal at the conference.
(D) At the conclusion of the mediation conference, the board, upon recommendation of the attorney mediator, may enter an order setting forth the action taken or agreement reached at the mediation conference, which, with the parties' consent, shall govern the subsequent course of the proceedings. Any appeal that cannot be resolved through the mediation process will be scheduled for a merit hearing with an attorney examiner who did not participate in the mediation process.
(E) The attorney
mediator shall keep confidential all statements made and information provided
by a party at a mediation conference. However, such statements and information
may be disclosed in accordance with
(F) Statements made and information provided in the course of a mediation conference are not admissible at a subsequent hearing. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of mediation.
5717-1-22 Filings by facsimile transmission.
(A) A notice of appeal, voluntary dismissal, a stipulation of value, motions, memoranda, briefs, requests for continuances, or extensions of time may be filed with the board by facsimile transmission. The following documents will not be accepted for facsimile filing: subpoenas and statutory transcripts to be filed by the tax commissioner, a county board of revision, a municipal board of appeal or a county budget commission. Facsimile filings may be transmitted only through the facsimile equipment operated by the board. Facsimile transmission does not include transmission by e-mail.
(B) The person filing a document by facsimile shall also include a cover page containing all of the following information: the date of transmission; the name, address, telephone number and facsimile number of the person transmitting the document; the caption of the case and case number; the name of the attorney examiner to whom the case is assigned; the title of the document; and the number of pages transmitted, including the cover page. If an attorney examiner or case number has not been assigned, that fact should be stated upon the cover page.
(C) The sending party bears the risk of transmitting a document by facsimile to the board. Documents sent by facsimile transmission and accepted by the board shall be deemed filed as of the date and time the facsimile transmission was received by the board. Facsimile filings shall be accepted only during the regular business hours of the board. Any facsimile transmission received after 5:00 P.M. on a business day, or on a Saturday, Sunday or legal holiday, shall be deemed filed on the board's next succeeding regular business day.
(D) A document filed by facsimile transmission shall be accepted as the effective original filing. The party may file the source document with the board within three days thereafter. A party filing by facsimile transmission shall also serve all other parties to the proceeding by facsimile transmission, where permissible.
(E) Facsimile filings shall not exceed twenty pages in length. If the filing includes attachments that cannot be accurately transmitted via fax, or if the enclosure of such attachments would cause the filing to exceed the maximum length provided in this rule, each attachment shall be replaced by an insert page describing the attachment and why it is missing. Unless otherwise ordered by the board, the missing attachments shall be filed with the board, with a copy of the filed document, no later than five business days following the facsimile filing. The board may strike any document or attachment, or both, if the missing attachments are not filed as required by this section.