Tuesday, April 14, 2026
Straub Nissan LLC et al. v. Patricia Harris, tax commissioner of Ohio, et al., Case No. 2024-1637
Ohio Board of Tax Appeals
Adam Kohn et al. v. Glenmede Trust Company N.A. et al., Case Nos. 2025-0737 and 2025-0818
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Harry Holliman Jr., Case No. 2025-0670
Eighth District Court of Appeals (Cuyahoga County)
Does Commercial Activity Tax Apply to West Virginia Vehicle Sales to Ohio Customers?
Straub Nissan LLC et al. v. Patricia Harris, tax commissioner of Ohio, et al., Case No. 2024-1637
Ohio Board of Tax Appeals
ISSUES:
- For out-of-state vehicle dealers that market and sell vehicles to Ohio residents, for use in Ohio, and destined for Ohio, are those sales subject to the Ohio commercial activity tax?
- Does the recently enacted statute R.C. 5751.033(M) apply retroactively to this case?
BACKGROUND:
Straub Nissan operates car dealerships located near Wheeling, West Virginia. The dealerships sell and lease new and used vehicles, and their customers include people from West Virginia, Pennsylvania, and Ohio.
The Ohio Department of Taxation audited Straub because the company reported substantial Ohio sales on its Ohio tax returns but wasn’t filing returns for the Ohio commercial activity tax (CAT). The audit reviewed Straub’s business activity for tax years 2010 through 2016.
The department found Straub had a tax liability of $249,384, not including interest and penalty. Combined with additional delinquency assessments, Straub’s total CAT liability without interest and penalty was calculated to be $1.278 million. Straub petitioned for a reassessment, arguing the assessments were based on estimates that overstated the company’s actual taxable gross receipts.
The Ohio tax commissioner did a recalculation considering Straub’s receipts. In a final determination, the commissioner stated that Straub must base its gross receipts of vehicle sales for its Ohio taxes on its best available information – which were addresses provided by Ohio customers. Straub’s total CAT liability after the department’s recalculation and before interest and penalty was $362,418.
Tax Board Overturns Commissioner’s Decision
Straub appealed to the Ohio Board of Tax Appeals (BTA). In October 2024, the BTA overturned the tax commissioner’s final determination. The BTA ruled that Straub’s Ohio customers received their vehicles in West Virginia and Straub delivered the vehicles to the Ohio customers in West Virginia. Based on Straub’s receipts, the sales shouldn’t be “sitused” in Ohio, the BTA found. The tax department defines “situs” as “the place where property is physically located, or where a taxable transaction occurs.”
R.C. 5751.033, which addresses the Ohio CAT, states: “Gross receipts from the sale of tangible personal property shall be sitused to this state if the property is received in this state by the purchaser. In the case of delivery of tangible personal property by motor carrier or by other means of transportation, the place at which such property is ultimately received after all transportation has been completed shall be considered the place where the purchaser receives the property.”
The tax commissioner appealed to the Supreme Court of Ohio, which must accept this type of appeal. Tax appeals filed after a certain date are referred to a master commissioner for oral argument. However, the Supreme Court can grant a request, as it did in this case, to hold oral argument before the full court.
Tax Commissioner Argues Vehicles Are ‘Ultimately Received’ in Ohio
The tax commissioner notes that when an Ohio-based customer buys or leases a vehicle from Straub in West Virginia, the dealership takes care of collecting Ohio sales taxes and filling out Ohio vehicle title forms or vehicle registration forms. The tax commissioner maintains that by promoting, selling, and leasing vehicles to Ohio customers, Straub has engaged in substantial commercial activity in Ohio.
This commercial activity is exactly what the CAT is supposed to capture, the tax commissioner argues, quoting a state law that explains that, for CAT purposes, “doing business” means engaging in any activity … that is conducted for, or results in, gain, profit, or income.” The one location associated with the purchases and leases to Ohio customers is each customer’s Ohio address. And the vehicles are “ultimately received after all transportation has been completed” in Ohio, the tax commissioner asserts, making the purchases and leases from Straub subject to the Ohio CAT.
After the commissioner’s appeal was filed, the General Assembly amended R.C. 5751.033, adding division (M), which specifically addresses motor vehicles and states, “Gross receipts from the sale or lease of a motor vehicle … shall only be sitused to this state if the motor vehicle is issued a certificate of title evidencing the owner's or lessee’s address in this state.” The legislature noted that the amendment applies to tax periods before, on, or after the law’s effective date. The tax commissioner contends that the law clearly provides that the Ohio CAT applies to the sales or leases for vehicles titled in Ohio, and that application is retroactive to this case.
Company Contends Sales Are Completed in West Virginia
Straub responds that it does no business in Ohio. Its sales to Ohio customers start and end in West Virginia, Straub maintains. The entire vehicle sales transaction – looking at and test-driving a vehicle, meeting with salespeople, negotiating the terms, filling out paperwork, and driving off the lot – happens in West Virginia. As a result, the sales cannot be sitused in Ohio, the company asserts.
The company contends that for tangible personal property, such as vehicles, sales are sitused where the purchaser receives the goods. If there is no transportation involved to transfer possession of the goods from the seller to the buyer, the sale is sitused where the buyer physically receives the goods from the seller, the company explains. The tax commissioner’s view is that the Ohio purchasers of Straub’s vehicles ultimately receive their vehicles in Ohio when they drive them back to Ohio. Straub disagrees, countering that the delivery of the vehicles by the dealership to the purchaser is completed in West Virginia.
Straub also asserts that the addition of division (M) to R.C. 5751.033 cannot be applied retroactively to overturn a past BTA decision. The new law also can’t be applied retroactively to increase someone’s past tax liability, Straub maintains. To increase a taxpayer’s tax obligations after a tax year closes is a substantive provision and applying it retroactively would be unconstitutional, the company concludes.
Auto Dealer Associations File Additional Briefs on Separate Sides
The Ohio Automobile Dealers Association filed an amicus curiae brief supporting the Ohio tax commissioner.
An amicus brief supporting Straub’s position was submitted jointly by the West Virginia Automobile Dealers Association and the Pennsylvania Automotive Association.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Patricia Harris, tax commissioner of Ohio, from the Ohio Attorney General’s Office: Daniel Kim, daniel.kim@ohioago.gov
Representing Straub Nissan LLC: Rick Ashton, ashton@asnalaw.com
Can Case Be Refiled Third Time for Acts That Occurred a Decade Earlier?
Adam Kohn et al. v. Glenmede Trust Company N.A. et al., Case Nos. 2025-0737 and 2025-0818
Eighth District Court of Appeals (Cuyahoga County)
ISSUE:
- Does the Ohio saving statute apply only to a refiled lawsuit as a whole, or can it apply to refiled claims within a lawsuit while excluding the refiling of some claims?
- When a case has been dismissed by a trial court after the statute of limitations on a claim expires, does the Ohio saving statute allow for the claim to be made in a refiled lawsuit?
BACKGROUND:
Adam Kohn was an employee of CT Partners (CTP), an executive search firm. He owned more than 626,000 shares of the publicly traded company. Kohn created a trust to hold the shares. In 2014, he hired Glenmede Trust Company to advise him on how to manage and sell some of the CTP shares. At the time he engaged the company, the stock was trading at $11 per share. Glenmede prepared an investment plan for Kohn to help him sell some of his shares. In November 2014, Kohn wanted to sell 150,000 shares, as the CTP stock was trading at $24 per share.
Glenmede refused to sell the stocks, warning Kohn that he could be considered a company “insider” and the sale wasn’t permitted. Kohn arranged for CTP’s chief financial officer to verify that Kohn wasn’t an insider, but Glenmede ignored an email from the CTP official, Kohn alleged. A Glenmede advisor continued to provide Kohn with advice on managing the planned sale, and the arrangement continued until May 2015. By then, the stock price had dropped to $2 per share. Kohn maintained that Glenmede’s advice lost him millions of dollars of potential investment income.
In 2016, Kohn sued Glenmede and the Glenmede managing director in Cuyahoga County Common Pleas Court. Kohn alleged several claims, including breach of contract, negligence, and fraud. The parties noted that their agreement stated it would be governed by Pennsylvania law. In 2017, Kohn voluntarily dismissed his lawsuit. Using the Ohio saving statute, R.C. 2305.19(A), he refiled his lawsuit in 2018, making the same claims.
Glenmede asked the trial court to dismiss Kohn’s lawsuit, arguing he failed to secure the required expert testimony to support his claims. After four years, the trial court ruled in Glenmede’s favor in 2022. In August 2023, Kohn refiled his case for the third time, again making the same claims.
Glenmede again asked the trial court to dismiss the case. The company argued that the Ohio saving statute could be used only once and couldn’t be used a second time to ultimately file the same lawsuit three times. The trial court agreed, and Kohn appealed to the Eighth District Court of Appeals.
As the matter was pending in the Eighth District, the Supreme Court of Ohio issued its 2024 McCullough v. Bennett decision, which found there is no limit on how many times the saving statute can be used to refile a case. The Eighth District then applied McCullough and considered Kohn's various claims.
The parties debated which statute of limitations applied to Kohn’s claims: Ohio or Pennsylvania. Depending on the state, some of Kohn’s claims, such as breach of contract, had time limits of four to six years. In a 2-1 decision, the appeals court held that, because the negligence claims had a two-year statute of limitations, they expired when he filed his second lawsuit, and couldn’t be included in his third lawsuit. The Eighth District ruled that Kohn could use the saving statute to pursue only those claims in which the statute of limitations hadn’t expired when his second lawsuit was filed in 2018.
The Eighth District noted that its decision conflicted with a Fifth District Court of Appeals decision.
Glenmede appealed to the Supreme Court, which agreed to hear the case and to consider the conflict among appellate courts.
Lawsuit Can’t Continue, Firm Argues
Glenmede notes that R.C. 2305.19(A) states the saving statute applies to “any action that is commenced or attempted to be commenced,” and repeatedly refers to “actions.” “Actions” are another term for “lawsuit,” the firm argues, and the saving statute pertains to the refiling of the same lawsuit after it is dismissed for reasons other than on the merits. In this case, Kohn’s lawsuit contains claims that have expired. The lawsuit can’t continue by refiling when some of the claims have not been “timely commenced” because they have expired, Glenmede argues. Kohn refiled his third lawsuit in 2023, well after the two-year statute of limitations had expired on the negligence claims, which are based on actions taken by Glenmede in 2014 and 2015.
“Claims” are particular allegations within an “action,” Glenmede argues, and the General Assembly has used the words differently in statutes because they have separate meanings. Glenmede notes that the Fifth District’s 2002 McGowan v. Family Medicine Inc. decision conflicts with the Eighth District’s decision in this case. In McGowan, the Fifth District found a refiled case that alleged medical malpractice and wrongful death couldn’t proceed because at the time the action was refiled, the statute of limitations had expired for the medical malpractice claim. McGowan held that the saving statute doesn’t operate on a claim-by-claim basis, but only allows a lawsuit to be refiled if the entire lawsuit is eligible to be refiled, Glenmede argues. The Eighth District incorrectly allowed Kohn to remove the expired claims and to proceed with the rest of the previously dismissed lawsuit, the firm concludes.
The firm also maintains that the Supreme Court’s McCullough decision doesn’t apply to Kohn’s case. In McCullough, all the claims in the lawsuit were still within the statute of limitations when a second attempt to apply the saving statute occurred. That is different than Kohn’s case in which some of his claims expired. By following the Fifth District’s logic and not applying McCullough, Glenmede argues the trial court’s decision to bar Kohn from refiling against them for a third time should stand.
Appellate Court Misreads Supreme Court Ruling, Investor Argues
Kohn notes the Eighth District didn’t explain why it was allowing the case to be refiled a third time using the saving statute, but excluding the negligence claims. He suggests the decision contradicts the Supreme Court’s decision in McCullough. Kohn argues nothing in the decision states that the second refiling of the claim has to occur within the statute of limitations. The purpose of the saving statute is to allow claims to be refiled within one year after the statute of limitations has expired if the case is decided on a technical reason and not on the merits, he asserts.
Kohn agrees with Glenmede that the saving statute applies to actions but not to independent claims within an action. However, Kohn disagrees with Glenmede about the significance of having claims whose statutes of limitations have expired in the lawsuit. Following McCullough, all he was required to do was refile his claim within one year of the date the case was voluntarily dismissed or within one year of a trial court’s dismissal for a reason other than the merits, Kohn asserts.
In this case, he utilized the saving statute in 2017 by dismissing his case before that statute of limitations ran on any of his claims and refiling within one year in 2018, Kohn notes. The trial court, four years later in 2022, then dismissed the case without prejudice, ruling that Kohn failed to include the required expert testimony. He then filed a third time within one year of the 2022 decision, which, he argues, is allowed under the saving statute. The delay between the time he refiled his case in 2018 and the 2022 trial court decision shouldn’t impact his original claims, he asserts. If the Eighth District decision is upheld, that would allow defendants in civil lawsuits to “sandbag” the cases by filing motions and seeking delays in court decisions until the statute of limitations on the claims run out, he argues. That would eliminate the purpose of the saving statute, which allows claims to be pursued once the statute of limitations expires and extends the time for lawsuits to be decided on the merits, he asserts.
Kohn argues that Glenmede wants the savings statute interpreted to apply the shortest statute of limitations on any claim in a lawsuit. In contrast, the Court should find that a lawsuit can be filed regardless of any statute of limitations in a lawsuit, he maintains. But if the Court agrees that individual statutes of limitations apply, he argues the saving statute should apply to the longest statute of limitations among the claims. In this case, some of the claims have a six-year statute of limitations, meaning the case was refiled in time to be considered on the merits, Kohn concludes.
Attorney General to Participate in Case
An amicus curiae brief supporting Kohn’s position was submitted by the Ohio Attorney General’s Office. The Court has permitted the attorney general to share oral argument time with Kohn.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2025-0737 and 2025-0818).
Contacts
Representing Glenmede Trust Company N.A. et al: Brian Sullivan, bsullivan@reminger.com
Representing Adam Kohn et al.: Louis Grube, leg@pwfco.com
Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov
Who Decides Which Firearm Specification to Impose at Sentencing?
State of Ohio v. Harry Holliman Jr., Case No. 2025-0670
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: When a defendant is convicted of both one-year and three-year firearm specifications for the same criminal offense, does the prosecutor decide which specification should be pursued at sentencing?
BACKGROUND:
In a December 2023 incident, Harry Holliman Jr. went to the house of a former friend, David Wright, and knocked on the door. Wright was at home with his girlfriend and a grandchild. Wright answered the door and told Holliman to leave. While leaving, Holliman fired shots from a revolver – two into the air and one at the house.
Holliman was charged with five criminal offenses, and each offense included a one-year firearm specification and a three-year firearm specification. The one-year specifications alleged he possessed a firearm while committing a crime, and the three-year specifications alleged he displayed or brandished the firearm during an offense. Specifications enhance a penalty for a crime.
Trial Court Sentences on Offense and One-Year Firearm Specification
Following a trial in Cuyahoga County Common Pleas Court, the jury found Holliman guilty of discharging a firearm on or near a prohibited premises. He was also convicted of both the one-year and three-year firearm specifications connected to the firearm discharge offense. In August 2024, the trial court sentenced Holliman to nine months in prison for discharging a firearm on or near a prohibited premises and, because the firearm enhancements were part of the same act, the court had to sentence Holliman for only one. The court imposed the one-year firearm specification, for a total sentence of 21 months.
The Cuyahoga County Prosecutor’s Office appealed to the Eighth District Court of Appeals. The prosecutor objected to the trial court sentencing Holliman on the one-year, rather than the three-year, firearm specification. The prosecutor wanted the three-year specification imposed and argued trial courts don’t have the authority to choose. The Eighth District upheld the trial court decision.
The prosecutor appealed to the Supreme Court of Ohio, which accepted the case.
Prosecutor Argues State, Not Court, Should Select Specification for Sentencing
The Cuyahoga County prosecutor notes that although Holliman could be sentenced for only one of the specifications, state law is “silent” as to who decides which specification should be used for sentencing. Holliman was found guilty of both specifications – the one-year specification because he possessed a firearm and the three-year specification because he used the firearm, the prosecutor notes. State law doesn’t empower a trial court to decide which firearm specification to impose at sentencing, the prosecutor contends. Instead, the prosecutor asserts that decision should be made by prosecutors.
The prosecutor’s brief also asserts that trial courts also can’t choose to impose a one-year specification when the defendant has been convicted of a three-year specification for the same crime. By sentencing Holliman on the one-year specification, the trial court “under-punished him,” the brief argues.
Holliman Responds That Courts Have Discretion Between Specifications
Holliman counters that the prosecutor misreads the statutes , which are not silent on the issue. The relevant statutes provide that the “[i]mposition of a one-year mandatory prison term … is precluded if a court imposes a … three-year … mandatory prison term” and a three-year specification can’t be imposed “if a court imposes” a one-year specification. If the General Assembly were concerned that defendants would be under-punished when convicted of both one-year and three-year firearm specifications, there wouldn’t be a statute preventing a three-year specification from being imposed if a one-year specification is imposed, Holliman maintains.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Chauncey Keller, ckeller@prosecutor.cuyahogacounty.us
Representing Harry Holliman Jr. from the Cuyahoga County Public Defender’s Office: Thomas Lampman, tlampman@cuyahogacounty.us
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