COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74614 HAROLD M. AND LYNDA COHEN ACCELERATED DOCKET Plaintiff-appellant JOURNAL ENTRY vs. AND STATE OF OHIO, DEPARTMENT OF TAXATION OPINION Defendant-appellee PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court, Case No. CV-345746 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: HAROLD M. COHEN 24161 Greenlawn Drive Beachwood, Ohio 44122 For defendant-appellee: MICHAEL E. SCOLIERE SCOLIERE AND ASSOC. 36 West Gay Street Suite 304 Columbus, Ohio 43215 -2- PER CURIAM: Plaintiffs-appellants, Harold and Lynda Cohen, appeal from the judgment of the trial court which dismissed his complaint for injunctive relief. Plaintiffs sought an injunction to prevent the State of Ohio from enforcing the judgments rendered against plaintiffs for their failure to pay state income taxes for the years 1988 through 1990. The trial court determined that, pursuant to R.C. 5703.38, a court of common pleas is prohibited from issuing such an injunction. For the reasons that follow, we find no merit to plaintiffs' assignment and affirm the judgment of the court below. The record in this case is limited. In 1991, plaintiffs were indicted on three counts of violating R.C. 5747.19, failure to file or fraudulently filing an Ohio State Income Tax return. Pursuant to the indictments, the Office of the Attorney General of Ohio performed a personal audit which resulted in plaintiffs being assessed $7,832.55. Because the assessment remained unpaid, the Department of Taxation filed a copy of the assessment with the Cuyahoga County Clerk of Courts. On March 2, 1992, a judgment lien was recorded against plaintiffs. In December, 1992, plaintiffs filed a petition for reassessment which was denied. On December 22, 1997, plaintiffs filed the instant complaint for injunctive relief. Specifically, plaintiffs sought the following equitable relief: 1) For an injunction, enjoining and restraining the defendant(s) and/or any others acting in concert or participation from serving a levy on the property located -3- at 24161 Greenlawn, Beachwood, Oh 44122, until such time the plaintiff(s) have exhausted their appealable rights and/or litigation has resolved the issues relative to the unlawful Judgment I76192. 2) For an injunction, enjoining and restraining the defendant(s) and/or any others acting in concert or participation from serving a levy on the assets of Harold M Cohen and/or Lynda Cohen on any assets other than those assets located at 24161 Greenlawn, Beachwood, Oh 44122, until such time the plaintiff(s) have exhausted their appealable rights and/or litigation has resolved the issues relative to the unlawful Judgment I76192. Defendant, State of Ohio, filed a motion to dismiss arguing that R.C. 5703.38 specifically prohibits a court of common pleas from issuing an order which has the effect of suspending or staying the determination of the department of taxation. The trial court agreed and dismissed plaintiffs' complaints. Plaintiffs timely appealed and presented the following assignment of error: THE LOWER COURT ERRED IN APPLYING ORC 5703.38, HAKIM-V-KOSYDER [SIC] (1977), 49 OHIO ST 2D 161; STEMEN- V- RHODES ET AL (1982) 4 OHIO APP 3D 205 TO THE INSTANT MATTER RATHER THAN ORC 2723.01. IN GRANTING APPELLEE'S MOTION TO DISMISS, THE LOWER COURT DISREGARDED EXISTING CASE LAW RELATIVE TO PROPER SERVICE OF TAX ASSESSMENTS AND OR NOTICES FROM AN ADMINISTRATIVE BODY. SMITH-V- OHIO DEPT OF TAXATION (1975), 46 OHIO APP. 2D 132; CORNACCIONE-V- BD OF ZONING APPEALS (1997), 118 OHIO APP.3D 388. FURTHERMORE, IN APPLYING ORC 5703.38, RATHER THAN ORC 2723.01, THE LOWER COURT CONDONED THE ADMITTED UNLAWFUL ACTIONS OF THE STATE OF OHIO WHILE DEPRIVING THE APPELLANT(S) THEIR RIGHT OF DUE PROCESS OF LAW AS PROVIDED UNDER THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. ORC 2723.01: COURTS- GENERAL PROVISIONS-SPECIAL REMEDIES, WAS/IS THE CORRECT APPLICATION OF LAW, NOT ORC 5703.38. DEPRIVED OF THE ADMINISTRATIVE APPEAL PROCESS, THE APPELLANT(S) SOUGHT RELIEF FROM THE ONLY AVENUE AVAILABLE TO THEM, THE COURT OF COMMON PLEAS. -4- In the case at bar, the trial court did not err in dismissing plaintiffs' complaint for injunctive relief. R.C. 5703.38 states as follows: No injunction shall issue suspending or staying any order, determination, or direction of the Department of Taxation, or any action of the Auditor of State, Treasurer of State, or Attorney General required by law to be taken in pursuance of any such order, determination, or direction. The section does not affect any right or defense in any action to collect any tax or penalty. Applying this statute, the Ohio Supreme Court has held that: R.C. 5703.38 prohibits a Court of Common Pleas from entering an order which has the effect of suspending or staying an order, determination, or direction of the Department of taxation. (Torbet v. Kilgore, 6 Ohio St.2d 42, approved and followed.) Hakim v. Kosydar (1977), 49 Ohio St.2d 161, syllabus. In Hakim, the taxpayer, a corporate officer, had a personal tax judgment rendered against her. Like the plaintiffs in the case at bar, the taxpayer in Hakim did not go through the administrative appeal process but, rather, filed suit in common pleas court seeking to enjoin the enforcement of the judgment. In Hakim, the Court held that R.C. 5703.38 prohibited the common pleas court from issuing an order preventing the collection. The Court went on to note that the taxpayer still had alternatives available: [a]ppellee still can pay the assessment, seek a certificate of abatement pursuant to R.C. 5703.05(B) and raise her due process argument in connection therewith. It should also be noted that appellee can await the institution of collection proceedings by the Tax Commissioner and therein raise as a defense her claim of insufficient service of the assessment. As heretofore set out, the latter portion of R.C. 5703.38 provides that the section does not affect any right or defense in any action to collect any tax or penalty. -5- Hakim at 165. See also, State of Ohio v. Marysville Steel, Inc. (June 12, 1997), Union App. No. 14-96-48, unreported; State v. Plickert (June 19, 1998), Lake App. No. 97-L-075, unreported. Thus the plaintiffs have the opportunity to raise any due process arguments as defenses in an action to enforce the judgment against them. However, their attempt to invoke the equitable power of the common pleas court through an injunction against the state must fail. Accordingly, plaintiffs' sole assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .