
    Columbia Gas of Ohio, Inc., Appellee and Cross-Appellant, v. Limbach, Tax Commr., Appellant and Cross-Appellee.
    [Cite as Columbia Gas of Ohio, Inc. v. Limbach (1994), 69 Ohio St.3d 462.]
    (No. 92-2447
    Submitted October 28, 1993
    Decided June 22, 1994.)
    
      
      Allan E. Roth and Theodore J. Gallagher, for appellee and cross-appellant.
    
      Lee Fisher, Attorney General and Barton A. Hubbard, Assistant Attorney General, for appellant and cross-appellee.
   Per Curiam.

The decision of the BTA is affirmed in part and reversed in part.

I

As to the motor vehicle issue, the decision of the BTA is affirmed. The commissioner contends that the BTA erred in excepting the eleven motor vehicles from tax, while Columbia says the BTA erred in not excepting another fifty-nine vehicles.

R.C. 5739.01(E), as pertinent, provides:

“ ‘Retail sale’ and ‘sales at retail’ include all sales except those in which the purpose of the consumer is:
U * * *
“(2) To * * * use or consume the thing transferred * * * directly in the rendition of a public utility service * * *.”

R.C. 5739.0KP) provides:

“ ‘Used directly in the rendition of a public utility service’ means * * * used in the repair and maintenance of the production, transmission, transportation or distribution system, including only such motor vehicles as are specially designed and equipped for such use.”

E. Ohio Gas Co. v. Limbach (1991), 61 Ohio St.3d 363, at 365, 575 N.E.2d 132, at 134, sets forth the test for exception of motor vehicles used in the rendition of public utility services under R.C. 5739.01(E) and 5739.01(P):

“The statute requires that the motor vehicles, to be excepted from taxation, be both specially equipped and specially designed. Nothing in the statute requires, however, that the motor vehicles be specially equipped and designed by the vendor. Thus, the purchaser is entitled to make the modifications.” (Emphasis sic.)

The BTA is responsible for determining questions of fact, and unless the determination is unreasonable or unlawful, it must be affirmed by this court upon review. SFZ Transp., Inc. v. Limbach (1993), 66 Ohio St.3d 602, 604, 613 N.E.2d 1037, 1039. As to this issue, we agree with the BTA’s analysis of the evidence and find its decision is reasonable and lawful. Therefore, it is affirmed.

II

As to the advertising issue, the decision of the BTA is unreasonable and unlawful and the cause is remanded to the BTA for reconsideration in conformity with this opinion.

Columbia claims the advertising services purchases were purchases of nontaxable personal services. The BTA found some separately invoiced services to be excepted and found that “[t]he remaining charges all involve an element of tangible personal property, being transferred, incapable of distinction or separation for value purposes.”

Emery Industries, Inc. v. Limbach (1989), 43 Ohio St.3d 134, 539 N.E.2d 608, is dispositive of the advertising issue and the BTA’s failure to apply the appropriate test from Emery is unreasonable and unlawful.

The record discloses that the purchases in question involved an element of tangible personal property. Such transactions may be taxed. Id., paragraph three of the syllabus.

Paragraph four of the syllabus of Emery, states:

“In a professional, insurance, or personal service transaction in which the charge for the services is not separated from the charge for the property, if the overriding purpose of the purchaser is to obtain tangible personal property produced by the service, the transfer of the property is a consequential element of the transaction and the entire transaction is taxable. If the purchaser’s overriding purpose is to receive the service, the transfer of the personal property is an inconsequential element of the transaction, and the entire transaction is not taxable.”

The BTA did not determine whether the transfer of personal property by LS & Y was a consequential element of the advertising purchases by Columbia. The failure of the BTA to decide this question is unreasonable and unlawful, and the decision as to this issue is reversed and the cause is remanded to the BTA for further consideration in conformity with this opinion.

Ill

As to the penalty issue, the BTA’s decision affirming the commissioner’s refusal to reduce the statutory penalty below five percent was neither unreasonable nor unlawful, and it is affirmed.

We said in Jennings & Churella Constr. Co. v. Lindley (1984), 10 Ohio St.3d 67, 70-71, 10 OBR 357, 359-360, 461 N.E.2d 897, 900:

“R.C. 5739.13 mandates the imposition of a penalty in the event of an assessment. Remission of the penalty is discretionary. * * *
“Appellate review of this discretionary power is limited to a determination of whether an abuse has occurred. * * *
“ * * * R.C. 5739.13 places no constraints on the degree of the remission permitted. Rather, the Tax Commissioner has full discretion to partially remit any statutory penalty assessed under R.C. 5739.13.” (Emphasis sic.)

The decision of the BTA is affirmed in part, reversed in part, and the cause is remanded.

Decision affirmed in part, reversed in part, and cause remanded.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.  