Section 5703.05, Revised Code, gives the Tax Commissioner power to issue a certificate of abatement for taxes overpaid, “on written application of any person * * * claiming to have overpaid to the Treasurer of State at any time within five years prior to the making of such application.”

Section 5728.061, Revised Code, authorizing the Treasurer of State to refund highway use taxes illegally or erroneously paid, provides that “an application shall be filed with the Tax Commissioner within 90 days from the date it is •ascertained that the payment made or assessment paid was illegal or erroneous; provided that in any event such application for refund *220must be filed with the commissioner within four years from the date of the illegal or erroneous payment of the tax.”

There has been no compliance with the requirements of Section 5703.05 or Section 5728.061, Revised Code, as to an application for a refund. These statutes are applicable and controlling. A payment under protest cannot be construed as an application in compliance therewith.

The decision of the Board of Tax Appeals is affirmed.

Decision affirmed.