
    The Toledo & Indiana Rd. Co. v. Brown, Secretary of State.
    
      Corporations — Gross profits not reported to state tax commission — Section 51(10, General Code — Assessment and penalty hy secretary of state — Section 51/91, General Code — Validity of assessment and penalty.
    
    1. When, a corporation fails to make a report rof its gross profits to the tax commission, as provided by Section 5470, General Code, the secretary of state is authorized to make up an assessment against such corporation, charge the same with a penalty, as provided by Section 5491, General Code, and give notice to such corporation of the amount due thereon.
    2. When such corporation is in default, and the assessment is regularly made, the assessment is binding upon the corporation in the absence of a clear and satisfactory showing that such corporation was not guilty of any default or laches in respect to the making of such report.
    (Decided November 16, 1923.)
    Error: Court of Appeals for F'ranklin county.
    
      Mr. Ralph E. Marburger and Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      Mr. C. C. Crabbe, attorney general, and Mr. William J. Meyer, for defendant in error.
   Kunkle, J.

Plaintiff in error is a public utility corporation and seeks to secure a permanent injunction restraining tbe secretary of state from cancelling its articles of incorporation on account of the non-payment of a certain penalty which was assessed against it because of its failure to pay its annual gross profits tax on or before Decernber 15, 1922. The lower court sustained a demurrer to the petition and as plaintiff did not desire to plead further final judgment was entered. From such judgment plaintiff in error prosecutes error to this court.

Among other things the petition states that plaintiff is a public utility, and that on or about January 15, 1923, it received a form on which to make its 1922 gross profits tax report; that said report was filled out and filed with the Tax 'Commission of Ohio on or about January 23, 1923; that on February 5, 1923, plaintiff received a tax bill from the state calling for a basic tax of $4,-644.14, with a penalty added at 15% amounting to $696.62; that a tender was made of the tax, less the penalty, which offer the state refused; that the tax was not assessed or determined on or before December 15, 1922; and that no bill therefor was ever sent to plaintiff by the treasurer of state, and that therefore the assessment of the penalty is illegal.

The assessment in question on its face is regular and the burden would rest upon the plaintiff in error to prove a clear and satisfactory case before an injunction would be allowed.

Under the provisions of Section 5470, General Code, the duty is placed upon the taxpayer to make out and file with the commission a statement, as provided in the preceding sections, in such form as the commission may prescribe. There is. no allegation in the petition that the commission had not prescribed the form upon which such return should be made; nor is there any averment that the plaintiff had filed or offered to file a statement, ás required by law, on or before September 1, 1922, or, at any time prior to January 23, 1923. There is no averment in the petition that plaintiff made an application for such form until shortly prior to the making of the assessment.

It must therefore be assumed from the state of the pleadings that plaintiff in error was in default for the filing of above statement, and remained in default until January, 1923.

This statement was required for the purpose of giving the information,, to the commission upon which to base the assessment.

If plaintiff in error had filed the statement on or before September 1, as required by law, and if the state had failed to make the assessment and give notice of the amount due from plaintiff in error, then the claim of plaintiff in error that no penalty could be charged under the provisions of Section 5491, General Code, until the assessment was actually made would have much more force.

We are of opinion that plaintiff in error is not in a position to take advantage of its own neglect, and to complain of the delay of the state in mailing the assessment at the time prescribed by statute.

It is true the state may under certain conditions make an assessment without such statement, but that would not relieve plaintiff in error from making the statement as required by law; nor would it relieve plaintiff in error from the consequences of its failure to file such statement at the required time.

It is claimed that the remedy of the state consists in adding a penalty of ten dollars per day, under Section 5507, General Code. The penalty under this section would be larger than the penalty actually assessed, and the state having elected to choose the smaller penalty it would follow that the plaintiff in error cannot be prejudiced thereby. We have carefully considered the briefs filed by counsel, and have also examined the written decision of Judge Daniel H. Sowers in the Common Pleas Court, which has been filed with the paper’s in this case. We are in harmony not only with the conclusion, but also with the reasoning contained in such decision of Judge Sowers, and are of opinion that the judgment of the lower court should be affirmed for the reasons stated in more or less detail in such decision.

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Judgment affirmed.

Alt/read and Perneding, JJ., concur.  