I concur with the majority's disposition of this case but am writing separately to address the arguments of the appellant in regard to the constitutionality of the city income tax and in regard to his Fifth Amendment right against self-incrimination.

The appellant seems to argue that he cannot be found guilty of failing to file his city income tax return because the city does not have the authority to tax his income. I shall assume, arguendo, that the appellant, during his prosecution for failing to file his city income tax return, can challenge the authority of the city to impose a city income tax. First of all, the city ordinance requiring the filing of city income tax returns is presumed to be constitutional. The Ohio Supreme Court in City of Xenia v. Schmidt (1920), 101 Ohio St. 437, declared:

"1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body.

2. That presumption of validity of such legislative enactment cannot be overcome unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution."

No clear conflict was shown by the appellant. Case law indicates that Ohio municipalities have the power to levy and collect income taxes subject to the power of the General Assembly to limit the power of municipalities to levy taxes under Section 13 of Article XVIII or Section 6 of Article XIII of the Ohio Constitution. Angell v. Toledo (1950), 153 Ohio St. 179¹

Article XVIII, Section 3 of the Ohio Constitution states: "Municipalities shall have the authority to exercise all powers of local self government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. The Ohio Supreme Court in Thompson v. Cincinnati (1965), 2 Ohio St.2d 292, stated that the powers of local self-government included the power to tax incomes. Thompson, supra, page 295. On page 182 in Angell, supra, the Court states, "A fundamental power of government is the power to raise revenue."

The Angell case (supra) also dealt with whether a municipality's income tax violated the due process clause of the United States Constitution (14th Amendment). Angell, supra, pg. 185 states "[i]n the case of Wisconsin v. J. C. Penney Co.,311 U.S. 435, 85 L.Ed. 267, 61 S.Ct. 246, it was held that the test of whether a tax law violates the due process clause is whether it bears some fiscal relation to the protections, opportunities, and benefits given by the state, or, in other words, whether the state has given anything for which it can ask a return.

The municipality certainly does afford protection against fire, theft, et cetera, to the place of business of plaintiff's employer and the operation thereof without which plaintiff's employer could not as readily run its business and employ help. In other words, the city of Toledo does afford to plaintiff not only a place to work but a place to work protected by the municipal government of Toledo."

Therefore, I conclude that there is no clear conflict between the authority to impose a city income tax and the provisions of the Ohio or United States Constitution, and that the presumption of the constitutionality of municipal ordinances has not been overcome.

The appellant must also be cautious in his application of Federal constitutional law to the case at bar. Justice Turner, writing the opinion in Angell, supra, quotes from 1 Cooley's Constitutional Limitation (8 Ed), 11: "The government of the United States is one of enumerated powers; the national Constitution being the instrument which specifies them . . . In this respect it differs from the constitutions of the several states, which are not grants of powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess."

Appellant also argues that the ordinance requiring him to file a city income tax return violates his 5th amendment right against self-incrimination because he is to sign, under penalty of perjury, a statement that the figures on his city income tax return are in agreement with the figures on his Federal 1040 form and that his 1040 form exists. However, the 5th Amendment privilege against compulsory self-incrimination is not a defense to prosecution for failing to file a tax return.United States v. Sullivan (1927), 274 U.S. 259. Rather a taxpayer such as appellant "may assert the Fifth Amendment privilege on his tax return. State v. Webb (1994), 70 Ohio St.3d 325,339-340, citing Garner v. United States (1976),424 U.S. 648. Specifically, "[i]f the form of a return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, butcould not on that account refuse to make any return at all."Sullivan, supra, at 263. (Emphasis added). Since appellant did not assert the Fifth Amendment on his tax return but rather chose not to file a return at all, he cannot avail himself of the Fifth Amendment's protection against self-incrimination. Appellant's argument, therefore, lacks merit.

-------------------------- Judge Julie A. Edwards

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Ashland Municipal Court of Ashland County, Ohio, is affirmed.

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¹ Angell indicated that a municipality could enact an income tax until the State preempted that field. However, the 1975 case ofOttawa Hills v. Joelson, 45 Ohio App.2d 176, 74002d 225,341 N.E.2d 611, stated that the passage of the state income tax, R.C.5747.01 et seq. pursuant to Ohio Constitution Article XII, Section 9, does not preclude municipalities from assessing a municipal income tax, either on the grounds of double taxation or state pre-emption.

Appellant Vincent Markel is appealing his conviction, in the Ashland Municipal Court, for failing to file an Ashland Municipal income tax return. The following facts give rise to this appeal.

The complaint filed against appellant alleged appellant failed to file an Ashland Municipal tax return for tax year 1997. At his arraignment, appellant refused to enter a plea, and the trial court entered a plea of not guilty on his behalf. The case proceeded to trial on September 10, 1998. The trial court convicted appellant and sentenced him to sixty days in jail, fifty days of which were suspended, and a $250 fine, plus court costs. The court also placed appellant on probation for a period of one year, a condition of which requires him to file his 1997 Ashland Municipal income tax return and pay any tax, interest, and penalties which may be due.

Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:

I. FAILURE OF COURT TO REQUIRE PROPER AUTHORITY

II. 5TH AMENDMENT

III. SHOW CAUSE DEMAND

IV. CONSTITUTIONALITY

V. JURISDICTION

We find the authorities properly charged appellant, under Section 229.03(A) of the Codified Ordinances of the City of Ashland. This statute provides, in pertinent part:

Each taxpayer whose earnings or profits are subject to the Ashland municipal income tax, shall on or before April 30, 1974, and on or before April 30 of each year thereafter, make and file return with the Director of Finance and Public Record on a form obtainable from the Director, setting forth the aggregate amount of salary, wages or other compensation including any deferred income, and net profits earned by him during the preceding year or period and subject to the tax, together with other pertinent information as the Director may require.

Based on the language of the above ordinance, we overrule appellant's First Assignment of Error.

Appellant's First Assignment of Error is overruled.

We cannot determine, from Appellant's brief, how any violation of the Fifth Amendment would occur. Accordingly, we overrule appellant's Second Assignment of Error.

Appellant's Second Assignment of Error is overruled.

Appellant fails to set forth any case law to support his claim that the trial court improperly addressed this matter as a motion to dismiss. The trial court determined, upon examination of appellant's request for "Show Cause and Demand", that his motion should be addressed as a motion to dismiss. Appellant fails to demonstrate, on appeal, why the trial court allegedly abused its discretion in addressing his motion as a motion to dismiss. We further find this matter was properly before the Ashland Municipal Court.

Appellant's Third Assignment of Error is overruled.

Appellant's Fourth Assignment of Error is overruled.

Appellant's Fifth Assignment of Error is overruled.

For the foregoing reasons, the judgment of the Ashland Municipal Court, Ashland County, Ohio, is hereby affirmed.

By: Wise, J., Reader, V. J., concurs, Edwards, J., concurs separately.

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