As Passed by the House 1
122nd General Assembly 4
Regular Session Am. Sub. S. B. No. 173 5
1997-1998 6
SENATORS B. JOHNSON-NEIN- REPRESENTATIVES 9
THOMAS-CORBIN-MOTTLEY-JOLIVETTE-SCHULER
_________________________________________________________________ 10
A B I L L
To amend sections 4165.01, 4165.02, 4165.03, 12
4165.04, 5739.01, and 5739.033 of the Revised 13
Code to provide that, on and after January 1, 14
2000, prepaid authorization numbers used to make 15
telephone calls or prepaid telephone calling 16
cards are subject to the state sales tax at the
time of sale, rather than taxing the calls as 17
they are made, to specify that a business person 18
commits a deceptive trade practice under the 19
Deceptive Trade Practices Law if, under specified
circumstances, the person's use of a fictitious 20
business name in a local telephone directory or
directory assistance database misrepresents the 21
person's geographic location to consumers of 22
goods or services, and to make associated changes
in that law. 23
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 24
Section 1. That sections 4165.01, 4165.02, 4165.03, 26
4165.04, 5739.01, and 5739.033 of the Revised Code be amended to 28
read as follows:
Sec. 4165.01. As used in Chapter 4165. of the Revised Code 38
THIS CHAPTER, unless the context otherwise requires:
(A) "Article" means a product as distinguished from its 40
trade mark, label, or distinctive dress in packaging. 41
(B) "Certification mark" means a mark used in connection 43
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with the goods or services of a person other than the certifier 44
to indicate geographic origin, material, mode of manufacture, 45
quality, accuracy, or other characteristics of the goods or 46
services or to indicate that the work or labor on the goods or 47
services was performed by members of a union or other 48
organization. 49
(C)(B) "Collective mark" means a mark used by members of a 51
cooperative, association, or other collective group or 52
organization to identify goods or services and distinguish them 53
from those of others, or to indicate membership in the collective 54
group or organization. 55
(D)(C) "Mark" means a word, name, symbol, device, or any 58
combination of the foregoing A WORD, NAME, SYMBOL, OR DEVICE in 59
any form or arrangement. 60
(E)(D) "Person" means an individual, corporation, 62
government, or governmental subdivision or agency, business 63
trust, estate, trust, partnership, unincorporated association, 64
LIMITED LIABILITY COMPANY, two or more of any of the foregoing 65
having a joint or common interest, or any other legal or 67
commercial entity.
(F)(E) "Service mark" means a mark used by a person to 69
identify services and to distinguish them from the services of 70
others. 71
(G)(F) "Trademark" means a mark used by a person to 73
identify goods and to distinguish them from the goods of others. 74
(H)(G) "Trade name" means a word, name, symbol, device, or 76
any combination of the foregoing A WORD, NAME, SYMBOL, OR DEVICE 78
in any form or arrangement used by a person to identify his THE 80
PERSON'S business, vocation, or occupation and distinguish it 81
from the business, vocation, or occupation of others. 82
(H) "DIRECTORY ASSISTANCE" MEANS THE DISCLOSURE BY AN 85
OPERATOR OR AN AUTOMATED SERVICE, UPON REQUEST BY AN INDIVIDUAL 86
AND THAT INDIVIDUAL'S IDENTIFICATION OF A TELEPHONE SERVICE 87
SUBSCRIBER IN SOME MANNER, OF TELEPHONE NUMBER INFORMATION 88
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PERTAINING TO THE IDENTIFIED TELEPHONE SERVICE SUBSCRIBER. 89
(I) "LOCAL TELEPHONE DIRECTORY" MEANS A TELEPHONE 92
CLASSIFIED ADVERTISING DIRECTORY, OR THE BUSINESS SECTION OF A 93
TELEPHONE DIRECTORY, THAT IS DISTRIBUTED BY A TELEPHONE COMPANY 94
OR A DIRECTORY PUBLISHER TO SUBSCRIBERS WHO ARE LOCATED IN ONE OR 95
MORE LOCAL EXCHANGES COVERED BY THE DIRECTORY. "LOCAL TELEPHONE 96
DIRECTORY" INCLUDES A TELEPHONE CLASSIFIED ADVERTISING DIRECTORY, 97
OR THE BUSINESS SECTION OF A TELEPHONE DIRECTORY, THAT INCLUDES 98
LISTINGS OF MORE THAN ONE TELEPHONE COMPANY. 99
(J) "LOCAL TELEPHONE NUMBER" MEANS A TELEPHONE NUMBER THAT 102
HAS A THREE-NUMBER PREFIX THAT IS USED BY A TELEPHONE COMPANY IN 103
CONNECTION WITH TELEPHONES THAT ARE PHYSICALLY LOCATED WITHIN AN 105
AREA COVERED BY A LOCAL TELEPHONE DIRECTORY IN WHICH THE 106
TELEPHONE NUMBER IS LISTED. "LOCAL TELEPHONE NUMBER" DOES NOT 107
INCLUDE LONG DISTANCE TELEPHONE NUMBERS THAT ARE LISTED AS LONG 108
DISTANCE TELEPHONE NUMBERS IN A LOCAL TELEPHONE DIRECTORY, OR 109
800-, 888-, OR 900- TELEPHONE NUMBERS THAT ARE LISTED IN A LOCAL 111
TELEPHONE DIRECTORY. 112
(K) "TELEPHONE COMPANY" HAS THE SAME MEANING AS IN SECTION 115
4905.402 OF THE REVISED CODE. 117
Sec. 4165.02. (A) A person engages in a deceptive trade 126
practice when, in the course of his THE PERSON'S business, 127
vocation, or occupation, he THE PERSON DOES ANY OF THE FOLLOWING: 129
(A)(1) Passes off goods or services as those of another; 131
(B)(2) Causes likelihood of confusion or misunderstanding 133
as to the source, sponsorship, approval, or certification of 134
goods or services; 135
(C)(3) Causes likelihood of confusion or misunderstanding 137
as to affiliation, connection, or association with, or 138
certification by, another; 139
(D)(4) Uses deceptive representations or designations of 141
geographic origin in connection with goods or services; 142
(E)(5) LISTS A FICTITIOUS BUSINESS NAME IN A LOCAL 144
TELEPHONE DIRECTORY THAT IS PUBLISHED ON OR AFTER THE EFFECTIVE 146
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DATE OF THIS AMENDMENT, IN CIRCUMSTANCES IN WHICH ALL OF THE 147
FOLLOWING APPLY:
(a) THE PERSON'S FICTITIOUS BUSINESS NAME IS NOT 150
REGISTERED AS A TRADE NAME WITH, OR ITS USE AS A FICTITIOUS NAME 151
HAS NOT BEEN REPORTED TO, THE SECRETARY OF STATE UNDER SECTIONS 152
1329.01 TO 1329.10 OF THE REVISED CODE. 154
(b) THE PERSON'S LISTED FICTITIOUS BUSINESS NAME 157
MISREPRESENTS THE GEOGRAPHIC LOCATION OF THE PERSON, BECAUSE THAT 158
NAME INCLUDES A REFERENCE TO A POLITICAL SUBDIVISION OR ANOTHER 159
GEOGRAPHIC AREA OF THIS STATE, THE PERSON DOES NOT HAVE BUSINESS 160
PREMISES IN THAT POLITICAL SUBDIVISION OR OTHER GEOGRAPHIC AREA 161
FROM WHICH THE PERSON SELLS, LEASES, RENTS, OR OTHERWISE PROVIDES 162
PARTICULAR GOODS OR SERVICES IN THIS STATE, AND THE PERSON'S USE 163
OF THAT NAME CAUSES A LIKELIHOOD OF CONFUSION OR MISUNDERSTANDING 164
BY CONSUMERS AS TO THE GEOGRAPHIC LOCATION WITH WHICH THE 165
CONSUMERS ARE DEALING IN THE PURCHASE, LEASE, RENTAL, OR OTHER 166
PROVISION OF, OR WILL BE DEALING IN THE RESOLUTION OF PROBLEMS 167
THAT MAY ARISE IN CONNECTION WITH, PARTICULAR GOODS OR SERVICES. 168
(c) THE LOCAL TELEPHONE DIRECTORY LISTING OF THE PERSON'S 171
FICTITIOUS BUSINESS NAME DOES NOT IDENTIFY THE POLITICAL 172
SUBDIVISION AND, IF THE PERSON IS NOT LOCATED IN THIS STATE, THE 173
STATE IN WHICH ARE LOCATED THE PERSON'S BUSINESS PREMISES WITH 175
WHICH CONSUMERS ARE DEALING IN THE PURCHASE, LEASE, RENTAL, OR 176
OTHER PROVISION OF, OR WILL BE DEALING IN THE RESOLUTION OF 177
PROBLEMS THAT MAY ARISE IN CONNECTION WITH, PARTICULAR GOODS OR 178
SERVICES.
(d) TELEPHONE CALLS TO THE LOCAL TELEPHONE NUMBER LISTED 181
FOR THE PERSON'S FICTITIOUS BUSINESS NAME ROUTINELY ARE FORWARDED 182
OR OTHERWISE TRANSFERRED TO BUSINESS PREMISES OF THE PERSON THAT 183
ARE LOCATED OUTSIDE THE CALLING AREA COVERED BY THE LOCAL 184
TELEPHONE DIRECTORY. 185
(6) LISTS A FICTITIOUS BUSINESS NAME IN A DIRECTORY 187
ASSISTANCE DATABASE ON OR AFTER THE EFFECTIVE DATE OF THIS 188
AMENDMENT, THE CIRCUMSTANCES DESCRIBED IN DIVISIONS (A)(5)(a) AND 191
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(b) OF THIS SECTION APPLY REGARDING THE PERSON'S LISTED 192
FICTITIOUS BUSINESS NAME, AND TELEPHONE CALLS TO THE LOCAL 193
TELEPHONE NUMBER LISTED FOR THE PERSON'S FICTITIOUS BUSINESS NAME
ROUTINELY ARE FORWARDED OR OTHERWISE TRANSFERRED TO BUSINESS 195
PREMISES OF THE PERSON THAT ARE LOCATED OUTSIDE THE LOCAL CALLING 196
AREA;
(7) Represents that goods or services have sponsorship, 198
approval, characteristics, ingredients, uses, benefits, or 199
quantities that they do not have or that a person has a 200
sponsorship, approval, status, affiliation, or connection that he 201
THE PERSON does not have; 203
(F)(8) Represents that goods are original or new if they 205
are deteriorated, altered, reconditioned, reclaimed, used, or 206
secondhand; 207
(G)(9) Represents that goods or services are of a 209
particular standard, quality, or grade, or that goods are of a 210
particular style or model, if they are of another; 211
(H)(10) Disparages the goods, services, or business of 213
another by false representation of fact; 215
(I)(11) Advertises goods or services with intent not to 217
sell them as advertised; 218
(J)(12) Makes false statements of fact concerning the 220
reasons for, existence of, or amounts of price reductions; 221
(K)(13) Advertises goods or services with intent not to 223
supply reasonably expectable public demand, unless the 225
advertisement discloses a limitation of quantity. 226
(B) In order to prevail in an A CIVIL action under Chapter 230
4165. SECTION 4165.03 of the Revised Code THAT SEEKS INJUNCTIVE 231
RELIEF OR AN AWARD OF DAMAGES AND THAT IS BASED ON ONE OR MORE 232
DECEPTIVE TRADE PRACTICES LISTED IN DIVISION (A) OF THIS SECTION, 233
a complainant need not prove competition between the parties TO 235
THE CIVIL ACTION.
(C) This section does not affect unfair trade practices 237
THAT ARE otherwise actionable at common law or under other 238
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sections of the Revised Code. 240
(D) A TELEPHONE COMPANY, PROVIDER OF DIRECTORY ASSISTANCE, 242
PUBLISHER OF A LOCAL TELEPHONE DIRECTORY, OR OFFICER, EMPLOYEE, 243
OR AGENT OF THE COMPANY, PROVIDER, OR PUBLISHER SHALL NOT BE 244
LIABLE IN A CIVIL ACTION UNDER SECTION 4165.03 OF THE REVISED 245
CODE FOR PUBLISHING IN ANY DIRECTORY OR DIRECTORY ASSISTANCE 246
DATABASE THE LISTING OF A FICTITIOUS BUSINESS NAME OF A PERSON 247
WHO COMMITS A DECEPTIVE TRADE PRACTICE THAT IS LISTED IN DIVISION 248
(A) OF THIS SECTION UNLESS THE TELEPHONE COMPANY, PROVIDER OF 249
DIRECTORY ASSISTANCE, PUBLISHER OF A LOCAL TELEPHONE DIRECTORY, 250
OR OFFICER, EMPLOYEE, OR AGENT OF THE COMPANY, PROVIDER, OR 251
PUBLISHER IS THE PERSON WHO COMMITTED THE DECEPTIVE TRADE 252
PRACTICE LISTED IN DIVISION (A) OF THIS SECTION. 253
Sec. 4165.03. (A)(1) A person WHO IS likely to be damaged 262
by a PERSON WHO COMMITS A deceptive trade practice of another 264
THAT IS LISTED IN DIVISION (A) OF SECTION 4165.02 OF THE REVISED 265
CODE may be granted an injunction COMMENCE A CIVIL ACTION FOR 266
INJUNCTIVE RELIEF against it under THE OTHER PERSON, AND THE 267
COURT OF COMMON PLEAS INVOLVED IN THAT ACTION MAY GRANT 268
INJUNCTIVE RELIEF BASED ON the principles of equity and on THE 269
terms that the court considers reasonable. Proof of monetary 270
damage or loss or OF profits is not required IN A CIVIL ACTION 271
COMMENCED UNDER DIVISION (A)(1) OF THIS SECTION. A 272
(2) A person WHO IS injured by a PERSON WHO COMMITS A 275
deceptive trade practice of another THAT IS LISTED IN DIVISION 276
(A) OF SECTION 4165.02 OF THE REVISED CODE may COMMENCE A CIVIL 277
ACTION TO recover actual damages FROM THE PERSON WHO COMMITS THE 278
DECEPTIVE TRADE PRACTICE. 279
(B) The court may award IN ACCORDANCE WITH THIS DIVISION 281
reasonable attorneys' ATTORNEY'S fees to the prevailing party IN 283
EITHER TYPE OF CIVIL ACTION AUTHORIZED BY DIVISION (A) OF THIS 284
SECTION. Costs for attorneys' AN AWARD OF ATTORNEY'S fees may be 285
assessed against a plaintiff if the court finds he THAT THE 286
PLAINTIFF knew the action to be groundless. Costs for attorneys' 288
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AN AWARD OF ATTORNEY'S fees may be assessed against a defendant 290
if the court finds that the defendant has willfully engaged in 291
the A trade practice LISTED IN DIVISION (A) OF SECTION 4165.02 OF 292
THE REVISED CODE knowing it to be deceptive.
(C) The CIVIL relief provided in this section is in 294
addition to CIVIL OR CRIMINAL remedies otherwise available 296
against the same conduct under the common law or other sections 298
of the Revised Code.
Sec. 4165.04. Chapter 4165. of the Revised Code (A) THIS 307
CHAPTER does not apply to EITHER OF THE FOLLOWING: 308
(A)(1) Conduct THAT IS in compliance with the orders or 311
rules of, or a statute administered by, a federal, state, or 312
local governmental agency;
(B)(2) Publishers, broadcasters, printers, or other 314
persons WHO ARE engaged in the dissemination of information or 316
reproduction of printed or pictorial matter AND who publish, 317
broadcast, or reproduce material without knowledge of its 318
deceptive character;
(C) Actions or appeals pending on September 25, 1969. 320
(B) Divisions (B)(A)(2) and (C)(3) of section 4165.02 of 323
the Revised Code do not apply to the use of a service mark, 324
trademark, certification mark, collective mark, trade name, or 325
other trade identification that was used and not abandoned before 326
September 25, 1969, if the use was in good faith and is otherwise 327
IS lawful except for Chapter 4165. of the Revised Code THIS 328
CHAPTER.
Sec. 5739.01. As used in this chapter: 337
(A) "Person" includes individuals, receivers, assignees, 339
trustees in bankruptcy, estates, firms, partnerships, 340
associations, joint-stock companies, joint ventures, clubs, 341
societies, corporations, the state and its political 342
subdivisions, and combinations of individuals of any form. 343
(B) "Sale" and "selling" include all of the following 345
transactions for a consideration in any manner, whether 346
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absolutely or conditionally, whether for a price or rental, in 347
money or by exchange, and by any means whatsoever: 348
(1) All transactions by which title or possession, or 350
both, of tangible personal property, is or is to be transferred, 351
or a license to use or consume tangible personal property is or 352
is to be granted; 353
(2) All transactions by which lodging by a hotel is or is 355
to be furnished to transient guests; 356
(3) All transactions by which: 358
(a) An item of tangible personal property is or is to be 360
repaired, except property, the purchase of which would be exempt 361
from the tax imposed by section 5739.02 of the Revised Code; 362
(b) An item of tangible personal property is or is to be 364
installed, except property, the purchase of which would be exempt 365
from the tax imposed by section 5739.02 of the Revised Code or 366
property that is or is to be incorporated into and will become a 367
part of a production, transmission, transportation, or 368
distribution system for the delivery of a public utility service; 369
(c) The service of washing, cleaning, waxing, polishing, 371
or painting a motor vehicle is or is to be furnished; 372
(d) Industrial laundry cleaning services are or are to be 374
provided; 375
(e) Automatic data processing, computer services, or 377
electronic information services are or are to be provided for use 378
in business when the true object of the transaction is the 379
receipt by the consumer of automatic data processing, computer 380
services, or electronic information services rather than the 381
receipt of personal or professional services to which automatic 382
data processing, computer services, or electronic information 383
services are incidental or supplemental. Notwithstanding any 384
other provision of this chapter, such transactions that occur 385
between members of an affiliated group are not sales. An 386
affiliated group means two or more persons related in such a way 387
that one person owns or controls the business operation of 388
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another member of the group. In the case of corporations with 389
stock, one corporation owns or controls another if it owns more 390
than fifty per cent of the other corporation's common stock with 391
voting rights. 392
(f) Telecommunications service is provided that originates 395
or terminates in this state and is charged in the records of the 396
telecommunications service vendor to the consumer's telephone 397
number or account in this state, or that both originates and 398
terminates in this state; BUT DOES NOT INCLUDE TRANSACTIONS BY 399
WHICH TELECOMMUNICATIONS SERVICE IS PAID FOR BY USING A PREPAID 400
AUTHORIZATION NUMBER OR PREPAID TELEPHONE CALLING CARD; 401
(g) Landscaping and lawn care service is or is to be 403
provided; 404
(h) Private investigation and security service is or is to 406
be provided; 407
(i) Information services or tangible personal property is 409
provided or ordered by means of a nine hundred telephone call; 410
(j) Building maintenance and janitorial service is or is 412
to be provided; 413
(k) Employment service is or is to be provided; 415
(l) Employment placement service is or is to be provided; 417
(m) Exterminating service is or is to be provided; 419
(n) Physical fitness facility service is or is to be 421
provided; 422
(o) Recreation and sports club service is or is to be 424
provided. 425
(4) All transactions by which printed, imprinted, 427
overprinted, lithographic, multilithic, blueprinted, photostatic, 428
or other productions or reproductions of written or graphic 429
matter are or are to be furnished or transferred; 430
(5) The production or fabrication of tangible personal 432
property for a consideration for consumers who furnish either 433
directly or indirectly the materials used in the production of 434
fabrication work; and include the furnishing, preparing, or 435
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serving for a consideration of any tangible personal property 436
consumed on the premises of the person furnishing, preparing, or 437
serving such tangible personal property. Except as provided in 438
section 5739.03 of the Revised Code, a construction contract 439
pursuant to which tangible personal property is or is to be 440
incorporated into a structure or improvement on and becoming a 441
part of real property is not a sale of such tangible personal 442
property. The construction contractor is the consumer of such 443
tangible personal property, provided that the sale and 444
installation of carpeting, the sale and installation of 445
agricultural land tile, the sale and erection or installation of 446
portable grain bins, or the provision of landscaping and lawn 447
care service and the transfer of property as part of such service 448
is never a construction contract. The transfer of copyrighted 449
motion picture films for exhibition purposes is not a sale, 450
except such films as are used solely for advertising purposes. 451
Other than as provided in this section, "sale" and "selling" do 452
not include professional, insurance, or personal service 453
transactions which involve the transfer of tangible personal 454
property as an inconsequential element, for which no separate 455
charges are made. 456
As used in division (B)(5) of this section: 458
(a) "Agricultural land tile" means fired clay or concrete 460
tile, or flexible or rigid perforated plastic pipe or tubing, 461
incorporated or to be incorporated into a subsurface drainage 462
system appurtenant to land used or to be used directly in 463
production by farming, agriculture, horticulture, or 464
floriculture. The term does not include such materials when they 465
are or are to be incorporated into a drainage system appurtenant 466
to a building or structure even if the building or structure is 467
used or to be used in such production. 468
(b) "Portable grain bin" means a structure that is used or 470
to be used by a person engaged in farming or agriculture to 471
shelter the person's grain and that is designed to be 472
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disassembled without significant damage to its component parts. 473
(6) All transactions in which all of the shares of stock 475
of a closely held corporation are transferred, if the corporation 476
is not engaging in business and its entire assets consist of 477
boats, planes, motor vehicles, or other tangible personal 478
property operated primarily for the use and enjoyment of the 479
shareholders; 480
(7) All transactions in which a warranty, maintenance or 482
service contract, or similar agreement by which the vendor of the 483
warranty, contract, or agreement agrees to repair or maintain the 484
tangible personal property of the consumer is or is to be 485
provided; 486
(8) ALL TRANSACTIONS BY WHICH A PREPAID AUTHORIZATION 488
NUMBER OR A PREPAID TELEPHONE CALLING CARD IS OR IS TO BE 489
TRANSFERRED. 490
(C) "Vendor" means the person providing the service or by 492
whom the transfer effected or license given by a sale is or is to 493
be made or given and, for sales described in division (B)(3)(i) 494
of this section, the telecommunications service vendor that 495
provides the nine hundred telephone service; if two or more 496
persons are engaged in business at the same place of business 497
under a single trade name in which all collections on account of 498
sales by each are made, such persons shall constitute a single 499
vendor. 500
Physicians, dentists, hospitals, and veterinarians who are 502
engaged in selling tangible personal property as received from 503
others, such as eyeglasses, mouthwashes, dentifrices, or similar 504
articles, are vendors. Veterinarians who are engaged in 505
transferring to others for a consideration drugs, the dispensing 506
of which does not require an order of a licensed veterinarian or 507
physician under federal law, are vendors. 508
(D)(1) "Consumer" means the person for whom the service is 510
provided, to whom the transfer effected or license given by a 511
sale is or is to be made or given, to whom the service described 512
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in division (B)(3)(f) or (i) of this section is charged, or to 513
whom the admission is granted. 514
(2) Physicians, dentists, hospitals, and blood banks 516
operated by nonprofit institutions and persons licensed to 517
practice veterinary medicine, surgery, and dentistry are 518
consumers of all tangible personal property and services 519
purchased by them in connection with the practice of medicine, 520
dentistry, the rendition of hospital or blood bank service, or 521
the practice of veterinary medicine, surgery, and dentistry. In 522
addition to being consumers of drugs administered by them or by 523
their assistants according to their direction, veterinarians also 524
are consumers of drugs that under federal law may be dispensed 525
only by or upon the order of a licensed veterinarian or 526
physician, when transferred by them to others for a consideration 527
to provide treatment to animals as directed by the veterinarian. 528
(3) A person who performs a facility management, or 530
similar service contract for a contractee is a consumer of all 531
tangible personal property and services purchased for use in 532
connection with the performance of such contract, regardless of 533
whether title to any such property vests in the contractee. The 534
purchase of such property and services is not subject to the 535
exception for resale under division (E)(1) of this section. 536
(4)(a) In the case of a person who purchases printed 538
matter for the purpose of distributing it or having it 539
distributed to the public or to a designated segment of the 540
public, free of charge, that person is the consumer of that 541
printed matter, and the purchase of that printed matter for that 542
purpose is a sale.
(b) In the case of a person who produces, rather than 544
purchases, printed matter for the purpose of distributing it or 545
having it distributed to the public or to a designated segment of 546
the public, free of charge, that person is the consumer of all 547
tangible personal property and services purchased for use or 548
consumption in the production of that printed matter. That 549
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person is not entitled to claim exception under division (E)(8) 550
of this section for any material incorporated into the printed
matter or any equipment, supplies, or services primarily used to 551
produce the printed matter. 552
(c) The distribution of printed matter to the public or to 555
a designated segment of the public, free of charge, is not a sale 556
to the members of the public to whom the printed matter is 557
distributed or to any persons who purchase space in the printed
matter for advertising or other purposes. 558
(5) A person who makes sales of any of the services listed 560
in division (B)(3) of this section is the consumer of any 561
tangible personal property used in performing the service. The 562
purchase of that property is not subject to the resale exception 563
under division (E)(1) of this section. 564
(E) "Retail sale" and "sales at retail" include all sales 566
except those in which the purpose of the consumer is: 567
(1) To resell the thing transferred or benefit of the 569
service provided, by a person engaging in business, in the form 570
in which the same is, or is to be, received by the person; 571
(2) To incorporate the thing transferred as a material or 573
a part, into tangible personal property to be produced for sale 574
by manufacturing, assembling, processing, or refining, or to use 575
or consume the thing transferred directly in producing a product 576
for sale by mining, including without limitation the extraction 578
from the earth of all substances which are classed geologically 579
as minerals, production of crude oil and natural gas, farming, 580
agriculture, horticulture, or floriculture, and persons engaged 581
in rendering farming, agricultural, horticultural, or 582
floricultural services, and services in the exploration for, and 583
production of, crude oil and natural gas, for others are deemed 584
engaged directly in farming, agriculture, horticulture, and 585
floriculture, or exploration for, and production of, crude oil 586
and natural gas; directly in the rendition of a public utility 587
service, except that the sales tax levied by section 5739.02 of 588
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the Revised Code shall be collected upon all meals, drinks, and 589
food for human consumption sold upon Pullman and railroad 590
coaches. This paragraph does not exempt or except from "retail 591
sale" or "sales at retail" the sale of tangible personal property 592
that is to be incorporated into a structure or improvement to 593
real property.
(3) To hold the thing transferred as security for the 595
performance of an obligation of the vendor; 596
(4) To use or consume the thing transferred in the process 598
of reclamation as required by Chapters 1513. and 1514. of the 599
Revised Code; 600
(5) To resell, hold, use, or consume the thing transferred 602
as evidence of a contract of insurance; 603
(6) To use or consume the thing directly in commercial 605
fishing; 606
(7) To incorporate the thing transferred as a material or 608
a part into, or to use or consume the thing transferred directly 609
in the production of, magazines distributed as controlled 610
circulation publications; 611
(8) To use or consume the thing transferred in the 613
production and preparation in suitable condition for market and 614
sale of printed, imprinted, overprinted, lithographic, 615
multilithic, blueprinted, photostatic, or other productions or 616
reproductions of written or graphic matter; 617
(9) To use the thing transferred, as described in section 619
5739.011 of the Revised Code, primarily in a manufacturing 620
operation to produce tangible personal property for sale; 621
(10) To use the benefit of a warranty, maintenance or 623
service contract, or similar agreement, as defined in division 624
(B)(7) of this section, to repair or maintain tangible personal 625
property, if all of the property that is the subject of the 626
warranty, contract, or agreement would be exempt on its purchase 627
from the tax imposed by section 5739.02 of the Revised Code; 628
(11) To use the thing transferred as qualified research 630
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and development equipment; 631
(12) To use or consume the thing transferred primarily in 632
storing, transporting, mailing, or otherwise handling purchased 633
sales inventory in a warehouse, distribution center, or similar 634
facility when the inventory is primarily distributed outside this 635
state to retail stores of the person who owns or controls the 636
warehouse, distribution center, or similar facility, to retail 637
stores of an affiliated group of which that person is a member, 638
or by means of direct marketing. Division (E)(12) of this 639
section does not apply to motor vehicles registered for operation 640
on the public highways. As used in division (E)(12) of this 641
section, "affiliated group" has the same meaning as in division 642
(B)(3)(e) of this section and "direct marketing" has the same 643
meaning as in division (B)(37) of section 5739.02 of the Revised 644
Code. 645
(13) To use or consume the thing transferred to fulfill a 647
contractual obligation incurred by a warrantor pursuant to a 648
warranty provided as a part of the price of the tangible personal 649
property sold or by a vendor of a warranty, maintenance or 650
service contract, or similar agreement the provision of which is 651
defined as a sale under division (B)(7) of this section; 652
(14) To use or consume the thing transferred in the 654
production of a newspaper for distribution to the public; 655
(15) To use tangible personal property to perform a 657
service listed in division (B)(3) of this section, if the 658
property is or is to be permanently transferred to the consumer 659
of the service as an integral part of the performance of the 660
service.
As used in division (E) of this section, "thing" includes 662
all transactions included in divisions (B)(3)(a), (b), and (e) of 664
this section.
Sales conducted through a coin-operated device that 666
activates vacuum equipment or equipment that dispenses water, 667
whether or not in combination with soap or other cleaning agents 668
16
or wax, to the consumer for the consumer's use on the premises in 670
washing, cleaning, or waxing a motor vehicle, provided no other
personal property or personal service is provided as part of the 671
transaction, are not retail sales or sales at retail. 672
(F) "Business" includes any activity engaged in by any 674
person with the object of gain, benefit, or advantage, either 675
direct or indirect. "Business" does not include the activity of 676
a person in managing and investing the person's own funds. 677
(G) "Engaging in business" means commencing, conducting, 679
or continuing in business, and liquidating a business when the 680
liquidator thereof holds self out to the public as conducting 682
such business. Making a casual sale is not engaging in business.
(H)(1) "Price," except as provided in divisions (H)(2) and 684
(3) of this section, means the aggregate value in money of 685
anything paid or delivered, or promised to be paid or delivered, 686
in the complete performance of a retail sale, without any 687
deduction on account of the cost of the property sold, cost of 688
materials used, labor or service cost, interest, discount paid or 689
allowed after the sale is consummated, or any other expense. If 690
the retail sale consists of the rental or lease of tangible 691
personal property, "price" means the aggregate value in money of 692
anything paid or delivered, or promised to be paid or delivered, 693
in the complete performance of the rental or lease, without any 694
deduction for tax, interest, labor or service charge, damage 695
liability waiver, termination or damage charge, discount paid or 696
allowed after the lease is consummated, or any other expense. The 698
sales tax shall be calculated and collected by the lessor on each 699
payment made by the lessee. Price does not include the
consideration received as a deposit refundable to the consumer 700
upon return of a beverage container, the consideration received 701
as a deposit on a carton or case that is used for such returnable 702
containers, or the consideration received as a refundable 703
security deposit for the use of tangible personal property to the 704
extent that it actually is refunded, if the consideration for 705
17
such refundable deposit is separately stated from the 706
consideration received or to be received for the tangible 707
personal property transferred in the retail sale. Such 708
separation must appear in the sales agreement or on the initial 709
invoice or initial billing rendered by the vendor to the 710
consumer. Price is the amount received inclusive of the tax, 711
provided the vendor establishes to the satisfaction of the tax 712
commissioner that the tax was added to the price. When the price 713
includes both a charge for tangible personal property and a 714
charge for providing a service and the sale of the property and 715
the charge for the service are separately taxable, or have a 716
separately determinable tax status, the price shall be separately 717
stated for each such charge so the tax can be correctly computed 718
and charged. 719
The tax collected by the vendor from the consumer under 721
this chapter is not part of the price, but is a tax collection 722
for the benefit of the state and of counties levying an 723
additional sales tax pursuant to section 5739.021 or 5739.026 of 724
the Revised Code and of transit authorities levying an additional 725
sales tax pursuant to section 5739.023 of the Revised Code. 726
Except for the discount authorized in section 5739.12 of the 727
Revised Code, no person other than the state or such a county or 728
transit authority shall derive any benefit from the collection or 729
payment of such tax. 730
(2) In the case of a sale of any new motor vehicle by a 732
new motor vehicle dealer, as defined in section 4517.01 of the 733
Revised Code, in which another motor vehicle is accepted by the 734
dealer as part of the consideration received, "price" has the 735
same meaning as in division (H)(1) of this section, reduced by 736
the credit afforded the consumer by the dealer for the motor 737
vehicle received in trade. 738
(3) In the case of a sale of any watercraft or outboard 740
motor by a watercraft dealer licensed in accordance with section 741
1547.543 of the Revised Code, in which another watercraft, 742
18
watercraft and trailer, or outboard motor is accepted by the 743
dealer as part of the consideration received, "price" has the 744
same meaning as in division (H)(1) of this section, reduced by 745
the credit afforded the consumer by the dealer for the 746
watercraft, watercraft and trailer, or outboard motor received in 747
trade. As used in division (H)(3) of this section, "watercraft" 748
includes an outdrive unit attached to the watercraft. 749
(I) "Receipts" means the total amount of the prices of the 751
sales of vendors, provided that cash discounts allowed and taken 752
on sales at the time they are consummated are not included, minus 753
any amount deducted as a bad debt pursuant to section 5739.121 of 754
the Revised Code. "Receipts" does not include the sale price of 755
property returned or services rejected by consumers when the full 756
sale price and tax are refunded either in cash or by credit. 757
(J) "Place of business" means any location at which a 759
person engages in business. 760
(K) "Premises" includes any real property or portion 762
thereof upon which any person engages in selling tangible 763
personal property at retail or making retail sales and also 764
includes any real property or portion thereof designated for, or 765
devoted to, use in conjunction with the business engaged in by 766
such person. 767
(L) "Casual sale" means a sale of an item of tangible 769
personal property which was obtained by the person making the 770
sale, through purchase or otherwise, for the person's own use in 771
this state and which was previously subject to the state's taxing 772
jurisdiction on its sale or use, and includes such items acquired 773
for the seller's use which are sold by an auctioneer employed 774
directly by the person for such purpose, provided the location of 775
such sales is not the auctioneer's permanent place of business. 776
As used in this division, "permanent place of business" includes 777
any location where such auctioneer has conducted more than two 778
auctions during the year. 779
(M) "Hotel" means every establishment kept, used, 781
19
maintained, advertised or held out to the public to be a place 782
where sleeping accommodations are offered to guests, in which 783
five or more rooms are used for the accommodation of such guests, 784
whether such rooms are in one or several structures. 785
(N) "Transient guests" means persons occupying a room or 787
rooms for sleeping accommodations for less than thirty 788
consecutive days. 789
(O) "Making retail sales" means the effecting of 791
transactions wherein one party is obligated to pay the price and 792
the other party is obligated to provide a service or to transfer 793
title to or possession of the item sold. "Making retail sales" 794
does not include the preliminary acts of promoting or soliciting 795
the retail sales, other than the distribution of printed matter 796
which displays or describes and prices the item offered for sale, 797
nor does it include delivery of a predetermined quantity of 798
tangible personal property or transportation of property or 799
personnel to or from a place where a service is performed, 800
regardless of whether the vendor is a delivery vendor. 801
(P) "Used directly in the rendition of a public utility 803
service" means that property which is to be incorporated into and 804
will become a part of the consumer's production, transmission, 805
transportation, or distribution system and which retains its 806
classification as tangible personal property after such 807
incorporation; fuel or power used in the production, 808
transmission, transportation, or distribution system; and 809
tangible personal property used in the repair and maintenance of 810
the production, transmission, transportation, or distribution 811
system, including only such motor vehicles as are specially 812
designed and equipped for such use. Tangible personal property 813
and services used primarily in providing highway transportation 814
for hire are not used in providing a public utility service as 815
defined in this division. 816
(Q) "Refining" means removing or separating a desirable 818
product from raw or contaminated materials by distillation or 819
20
physical, mechanical, or chemical processes. 820
(R) "Assembly" and "assembling" mean attaching or fitting 822
together parts to form a product, but do not include packaging a 823
product. 824
(S) "Manufacturing operation" means a process in which 826
materials are changed, converted, or transformed into a different 827
state or form from which they previously existed and includes 828
refining materials, assembling parts, and preparing raw materials 829
and parts by mixing, measuring, blending, or otherwise committing 830
such materials or parts to the manufacturing process. 831
"Manufacturing operation" does not include packaging. 832
(T) "Fiscal officer" means, with respect to a regional 834
transit authority, the secretary-treasurer thereof, and with 835
respect to a county which is a transit authority, the fiscal 836
officer of the county transit board if one is appointed pursuant 837
to section 306.03 of the Revised Code or the county auditor if 838
the board of county commissioners operates the county transit 839
system.
(U) "Transit authority" means a regional transit authority 841
created pursuant to section 306.31 of the Revised Code or a 842
county in which a county transit system is created pursuant to 843
section 306.01 of the Revised Code. For the purposes of this 844
chapter, a transit authority must extend to at least the entire 845
area of a single county. A transit authority which includes 846
territory in more than one county must include all the area of 847
the most populous county which is a part of such transit 848
authority. County population shall be measured by the most 849
recent census taken by the United States census bureau. 850
(V) "Legislative authority" means, with respect to a 852
regional transit authority, the board of trustees thereof, and 853
with respect to a county which is a transit authority, the board 854
of county commissioners. 855
(W) "Territory of the transit authority" means all of the 857
area included within the territorial boundaries of a transit 858
21
authority as they from time to time exist. Such territorial 859
boundaries must at all times include all the area of a single 860
county or all the area of the most populous county which is a 861
part of such transit authority. County population shall be 862
measured by the most recent census taken by the United States 863
census bureau. 864
(X) "Providing a service" means providing or furnishing 866
anything described in division (B)(3) of this section for 867
consideration. 868
(Y)(1)(a) "Automatic data processing" means processing of 870
others' data, including keypunching or similar data entry 871
services together with verification thereof, or providing access 872
to computer equipment for the purpose of processing data. 873
(b) "Computer services" means providing services 875
consisting of specifying computer hardware configurations and 876
evaluating technical processing characteristics, computer 877
programming, and training of computer programmers and operators, 878
provided in conjunction with and to support the sale, lease, or 879
operation of taxable computer equipment or systems. 880
(c) "Electronic information services" means providing 882
access to computer equipment by means of telecommunications 883
equipment for the purpose of either of the following: 884
(i) Examining or acquiring data stored in or accessible to 886
the computer equipment; 887
(ii) Placing data into the computer equipment to be 889
retrieved by designated recipients with access to the computer 890
equipment. 891
(d) "Automatic data processing, computer services, or 893
electronic information services" shall not include personal or 894
professional services. 895
(2) As used in divisions (B)(3)(e) and (Y)(1) of this 897
section, "personal and professional services" means all services 898
other than automatic data processing, computer services, or 899
electronic information services, including but not limited to: 900
22
(a) Accounting and legal services such as advice on tax 902
matters, asset management, budgetary matters, quality control, 903
information security, and auditing and any other situation where 904
the service provider receives data or information and studies, 905
alters, analyzes, interprets, or adjusts such material; 906
(b) Analyzing business policies and procedures; 908
(c) Identifying management information needs; 910
(d) Feasibility studies including economic and technical 912
analysis of existing or potential computer hardware or software 913
needs and alternatives; 914
(e) Designing policies, procedures, and custom software 916
for collecting business information, and determining how data 917
should be summarized, sequenced, formatted, processed, controlled 918
and reported so that it will be meaningful to management; 919
(f) Developing policies and procedures that document how 921
business events and transactions are to be authorized, executed, 922
and controlled; 923
(g) Testing of business procedures; 925
(h) Training personnel in business procedure applications; 927
(i) Providing credit information to users of such 929
information by a consumer reporting agency, as defined in the 930
"Fair Credit Reporting Act," 84 Stat. 1114, 1129 (1970), 15 931
U.S.C. 1681a(f), or as hereafter amended, including but not 932
limited to gathering, organizing, analyzing, recording, and 933
furnishing such information by any oral, written, graphic, or 934
electronic medium; 935
(j) Providing debt collection services by any oral, 937
written, graphic, or electronic means. 938
The services listed in divisions (Y)(2)(a) to (j) of this 940
section are not automatic data processing or computer services. 941
(Z) "Highway transportation for hire" means the 943
transportation of personal property belonging to others for 944
consideration by any of the following: 945
(1) The holder of a permit or certificate issued by this 947
23
state or the United States authorizing the holder to engage in 948
transportation of personal property belonging to others for 949
consideration over or on highways, roadways, streets, or any 950
similar public thoroughfare; 951
(2) A person who engages in the transportation of personal 953
property belonging to others for consideration over or on 954
highways, roadways, streets, or any similar public thoroughfare 955
but who could not have engaged in such transportation on December 956
11, 1985, unless the person was the holder of a permit or 957
certificate of the types described in division (Z)(1) of this 958
section;
(3) A person who leases a motor vehicle to and operates it 960
for a person described by division (Z)(1) or (2) of this section. 961
(AA) "Telecommunications service" means the transmission 963
of any interactive, two-way electromagnetic communications, 964
including voice, image, data, and information, through the use of 965
any medium such as wires, cables, microwaves, cellular radio, 966
radio waves, light waves, or any combination of those or similar 967
media. "Telecommunications service" includes message toll 968
service even though the vendor provides the message toll service 969
by means of wide area transmission type service or private 970
communications service purchased from another telecommunications 971
service provider, but does not include any of the following: 972
(1) Sales of incoming or outgoing wide area transmission 974
service or wide area transmission type service, including eight 975
hundred or eight-hundred-type service, to the person contracting 976
for the receipt of that service; 977
(2) Sales of private communications service to the person 979
contracting for the receipt of that service that entitles the 980
purchaser to exclusive or priority use of a communications 981
channel or group of channels between exchanges; 982
(3) Sales of telecommunications service by companies 984
subject to the excise tax imposed by Chapter 5727. of the Revised 985
Code; 986
24
(4) Sales of telecommunications service to a provider of 988
telecommunications service, including access services, for use in 989
providing telecommunications service; 990
(5) Value-added nonvoice services in which computer 992
processing applications are used to act on the form, content, 993
code, or protocol of the information to be transmitted; 994
(6) Transmission of interactive video programming by a 996
cable television system as defined in section 505.90 of the 997
Revised Code. 998
(BB) "Industrial laundry cleaning services" means removing 1,000
soil or dirt from or supplying towels, linens, or articles of 1,001
clothing that belong to others and are used in a trade or 1,002
business. 1,003
(CC) "Magazines distributed as controlled circulation 1,005
publications" means magazines containing at least twenty-four 1,006
pages, at least twenty-five per cent editorial content, issued at 1,007
regular intervals four or more times a year, and circulated 1,008
without charge to the recipient, provided that such magazines are 1,009
not owned or controlled by individuals or business concerns which 1,010
conduct such publications as an auxiliary to, and essentially for 1,011
the advancement of the main business or calling of, those who own 1,012
or control them. 1,013
(DD) "Landscaping and lawn care service" means the 1,015
services of planting, seeding, sodding, removing, cutting, 1,016
trimming, pruning, mulching, aerating, applying chemicals, 1,017
watering, fertilizing, and providing similar services to 1,018
establish, promote, or control the growth of trees, shrubs, 1,019
flowers, grass, ground cover, and other flora, or otherwise 1,020
maintaining a lawn or landscape grown or maintained by the owner 1,021
for ornamentation or other nonagricultural purpose. However, 1,022
"landscaping and lawn care service" does not include the 1,023
providing of such services by a person who has less than five 1,024
thousand dollars in sales of such services during the calendar 1,025
year. 1,026
25
(EE) "Private investigation and security service" means 1,028
the performance of any activity for which the provider of such 1,029
service is required to be licensed pursuant to Chapter 4749. of 1,030
the Revised Code, or would be required to be so licensed in 1,031
performing such services in this state, and also includes the 1,032
services of conducting polygraph examinations and of monitoring 1,033
or overseeing the activities on or in, or the condition of, the 1,034
consumer's home, business, or other facility by means of 1,035
electronic or similar monitoring devices. "Private investigation 1,036
and security service" does not include special duty services 1,037
provided by off-duty police officers, deputy sheriffs, and other 1,038
peace officers regularly employed by the state or a political 1,039
subdivision. 1,040
(FF) "Information services" means providing conversation, 1,042
giving consultation or advice, playing or making a voice or other 1,043
recording, making or keeping a record of the number of callers, 1,044
and any other service provided to a consumer by means of a nine 1,045
hundred telephone call, except when the nine hundred telephone 1,046
call is the means by which the consumer makes a contribution to a 1,047
recognized charity. 1,048
(GG) "Research and development" means designing, creating, 1,050
or formulating new or enhanced products, equipment, or 1,051
manufacturing processes, and conducting scientific or 1,052
technological inquiry and experimentation in the physical 1,053
sciences with the goal of increasing scientific knowledge which 1,054
may reveal the bases for new or enhanced products, equipment, or 1,055
manufacturing processes. 1,056
(HH) "Qualified research and development equipment" means 1,058
capitalized tangible personal property, and leased personal 1,059
property that would be capitalized if purchased, used by a person 1,060
primarily to perform research and development. Tangible personal 1,061
property primarily used in testing, as defined in division (A)(4) 1,062
of section 5739.011 of the Revised Code, or used for recording or 1,063
storing test results, is not qualified research and development 1,064
26
equipment unless such property is primarily used by the consumer 1,065
in testing the product, equipment, or manufacturing process being 1,066
created, designed, or formulated by the consumer in the research 1,067
and development activity or in recording or storing such test 1,068
results. 1,069
(II) "Building maintenance and janitorial service" means 1,071
cleaning the interior or exterior of a building and any tangible 1,072
personal property located therein or thereon, including any 1,073
services incidental to such cleaning for which no separate charge 1,074
is made. However, "building maintenance and janitorial service" 1,075
does not include the providing of such service by a person who 1,076
has less than five thousand dollars in sales of such service 1,077
during the calendar year. 1,078
(JJ) "Employment service" means providing or supplying 1,080
personnel, on a temporary or long-term basis, to perform work or 1,081
labor under the supervision or control of another, when the 1,082
personnel so supplied receive their wages, salary, or other 1,083
compensation from the provider of the service. "Employment 1,084
service" does not include: 1,085
(1) Acting as a contractor or subcontractor, where the 1,087
personnel performing the work are not under the direct control of 1,088
the purchaser. 1,089
(2) Medical and health care services. 1,091
(3) Supplying personnel to a purchaser pursuant to a 1,093
contract of at least one year between the service provider and 1,094
the purchaser that specifies that each employee covered under the 1,095
contract is assigned to the purchaser on a permanent basis. 1,096
(4) Transactions between members of an affiliated group, 1,098
as defined in division (B)(3)(e) of this section. 1,099
(KK) "Employment placement service" means locating or 1,101
finding employment for a person or finding or locating an 1,102
employee to fill an available position. 1,103
(LL) "Exterminating service" means eradicating or 1,105
attempting to eradicate vermin infestations from a building or 1,106
27
structure, or the area surrounding a building or structure, and 1,107
includes activities to inspect, detect, or prevent vermin 1,108
infestation of a building or structure. 1,109
(MM) "Physical fitness facility service" means all 1,111
transactions by which a membership is granted, maintained, or 1,112
renewed, including initiation fees, membership dues, renewal 1,113
fees, monthly minimum fees, and other similar fees and dues, by a 1,114
physical fitness facility such as an athletic club, health spa, 1,115
or gymnasium, which entitles the member to use the facility for 1,116
physical exercise. 1,117
(NN) "Recreation and sports club service" means all 1,119
transactions by which a membership is granted, maintained, or 1,120
renewed, including initiation fees, membership dues, renewal 1,121
fees, monthly minimum fees, and other similar fees and dues, by a 1,122
recreation and sports club, which entitles the member to use the 1,123
facilities of the organization. "Recreation and sports club" 1,124
means an organization that has ownership of, or controls or 1,125
leases on a continuing, long-term basis, the facilities used by 1,126
its members and includes an aviation club, gun or shooting club, 1,127
yacht club, card club, swimming club, tennis club, golf club, 1,128
country club, riding club, amateur sports club, or similar 1,129
organization. 1,130
(OO) "Livestock" means farm animals commonly raised for 1,132
food or food production, and includes but is not limited to 1,133
cattle, sheep, goats, swine, and poultry. "Livestock" does not 1,134
include invertebrates, fish, amphibians, reptiles, horses, 1,135
domestic pets, animals for use in laboratories or for exhibition, 1,136
or other animals not commonly raised for food or food production. 1,137
(PP) "Livestock structure" means a building or structure 1,139
used exclusively for the housing, raising, feeding, or sheltering 1,140
of livestock, and includes feed storage or handling structures 1,141
and structures for livestock waste handling. 1,142
(QQ) "Horticulture" means the growing, cultivation, and 1,144
production of flowers, fruits, herbs, vegetables, sod, mushrooms, 1,145
28
and nursery stock. As used in this division, "nursery stock" has 1,146
the same meaning as in section 927.51 of the Revised Code. 1,147
(RR) "Horticulture structure" means a building or 1,149
structure used exclusively for the commercial growing, raising, 1,150
or overwintering of horticultural products, and includes the area 1,151
used for stocking, storing, and packing horticultural products 1,152
when done in conjunction with the production of those products. 1,153
(SS) "Newspaper" means an unbound publication bearing a 1,155
title or name that is regularly published, at least as frequently 1,156
as biweekly, and distributed from a fixed place of business to 1,157
the public in a specific geographic area, and that contains a 1,158
substantial amount of news matter of international, national, or 1,159
local events of interest to the general public.
(TT) "Professional racing team" means a person that 1,162
employs at least twenty full-time employees for the purpose of 1,163
conducting a motor vehicle racing business for profit. The 1,164
person must conduct the business with the purpose of racing one 1,165
or more motor racing vehicles in at least ten competitive 1,166
professional racing events each year that comprise all or part of 1,167
a motor racing series sanctioned by one or more motor racing 1,168
sanctioning organizations. A "motor racing vehicle" means a 1,169
vehicle for which the chassis, engine, and parts are designed 1,170
exclusively for motor racing, and does not include a stock or 1,172
production model vehicle that may be modified for use in racing. 1,173
For the purposes of this division:
(1) A "competitive professional racing event" is a motor 1,175
vehicle racing event sanctioned by one or more motor racing 1,176
sanctioning organizations, at which aggregate cash prizes in 1,177
excess of eight hundred thousand dollars are awarded to the 1,179
competitors.
(2) "Full-time employee" means an individual who is 1,181
employed for consideration for thirty-five or more hours a week, 1,182
or who renders any other standard of service generally accepted 1,183
by custom or specified by contract as full-time employment. 1,185
29
(UU)(1) "PREPAID AUTHORIZATION NUMBER" MEANS A NUMERIC OR 1,188
ALPHANUMERIC COMBINATION THAT REPRESENTS A PREPAID ACCOUNT THAT 1,189
CAN BE USED BY THE ACCOUNT HOLDER SOLELY TO OBTAIN 1,190
TELECOMMUNICATIONS SERVICE, AND INCLUDES ANY RENEWALS OR 1,191
INCREASES IN THE PREPAID ACCOUNT. 1,192
(2) "PREPAID TELEPHONE CALLING CARD" MEANS A TANGIBLE ITEM 1,195
THAT CONTAINS A PREPAID AUTHORIZATION NUMBER THAT CAN BE USED 1,196
SOLELY TO OBTAIN TELECOMMUNICATIONS SERVICE, AND INCLUDES ANY 1,197
RENEWALS OR INCREASES IN THE PREPAID ACCOUNT.
Sec. 5739.033. The amount of tax due pursuant to sections 1,206
5739.02, 5739.021, 5739.023, and 5739.026 of the Revised Code is 1,207
the sum of the taxes imposed pursuant to those sections at the 1,208
situs of the consummation of the sale as determined under this 1,209
section. 1,210
(A) Except as otherwise provided in this section and 1,212
division (C) of section 5739.031 of the Revised Code, all sales 1,213
are conclusively determined to be consummated at the vendor's 1,214
place of business. 1,215
(1) If the consumer or the consumer's agent takes 1,217
possession of the tangible personal property at a place of 1,218
business of the vendor where the purchase contract or agreement 1,219
was made, the sale is consummated at that place of business. 1,220
(2) If the consumer or the consumer's agent takes 1,222
possession of the tangible personal property other than at a 1,223
place of business of the vendor, or takes possession at a 1,224
warehouse or similar facility of the vendor, the sale is 1,225
consummated at the vendor's place of business where the purchase 1,226
contract or agreement was made or the purchase order was 1,227
received.
(3) If the vendor provides a service specified in division 1,229
(B)(3)(a), (b), (c), (d), (n), or (o) of section 5739.01 of the 1,231
Revised Code, the sale is consummated at the vendor's place of 1,232
business where the service is performed or the contract or 1,233
agreement for the service was made or the purchase order was 1,234
30
received.
(B) If the vendor is a transient vendor as specified in 1,236
division (B) of section 5739.17 of the Revised Code, the sale is 1,237
conclusively determined to be consummated at the vendor's 1,238
temporary place of business or, if the transient vendor is the 1,239
lessor of titled motor vehicles, titled watercraft, or titled 1,240
outboard motors, at the location where the lessee keeps the 1,241
leased property. 1,242
(C) If the vendor is a limited vendor as specified in 1,244
division (B) of section 5739.17 of the Revised Code, the sale is 1,245
conclusively determined to be consummated at the temporary event 1,246
at which the vendor is making sales. 1,247
(D) If the vendor makes sales of tangible personal 1,249
property from a stock of goods carried in a motor vehicle, from 1,250
which the purchaser makes selection and takes possession, or from 1,251
which the vendor sells tangible personal property the quantity of 1,252
which has not been determined prior to the time the purchaser 1,253
takes possession, the sale is conclusively determined to be 1,254
consummated at the location of the motor vehicle when the sale is 1,255
made. 1,256
(E) If the vendor is a delivery vendor as specified in 1,258
division (D) of section 5739.17 of the Revised Code, the sale is 1,259
conclusively determined to be consummated at the place where the 1,260
tangible personal property is delivered, where the leased 1,261
property is used, or where the service is performed or received. 1,262
(F) If the vendor provides a service specified in division 1,264
(B)(3)(e), (g), (h), (j), (k), (l), or (m) of section 5739.01 of 1,266
the Revised Code, the sale is conclusively determined to be 1,267
consummated at the location of the consumer where the service is 1,268
performed or received. 1,269
(G) If EXCEPT AS PROVIDED IN DIVISION (J) OF THIS SECTION, 1,271
IF the vendor provides a service specified in division (B)(3)(f) 1,273
or (i) of section 5739.01 of the Revised Code, the sale is 1,274
conclusively determined to be consummated at the location of the 1,275
31
telephone number or account as reflected in the records of the 1,276
vendor. If, in the case of a telecommunications service, the
telephone number or account is located outside this state, the 1,277
sale is conclusively determined to be consummated at the location 1,278
in this state from which the service originated. 1,279
(H) If the vendor provides lodging to transient guests as 1,281
specified in division (B)(2) of section 5739.01 of the Revised 1,282
Code, the sale is conclusively determined to be consummated at 1,283
the location where the lodging is located. 1,284
(I) If the vendor sells a warranty, maintenance or service 1,286
contract, or similar agreement as specified in division (B)(7) of 1,287
section 5739.01 of the Revised Code and the vendor is a delivery 1,288
vendor, the sale is conclusively determined to be consummated at 1,289
the location of the consumer. If the vendor is not a delivery 1,290
vendor, the sale is conclusively determined to be consummated at 1,291
the vendor's place of business where the contract or agreement 1,292
was made, unless the warranty or contract is a component of the 1,293
sale of a titled motor vehicle, titled watercraft, or titled 1,294
outboard motor, in which case the sale is conclusively determined 1,295
to be consummated in the county of titling. 1,296
(J) EXCEPT AS OTHERWISE PROVIDED IN THIS DIVISION, IF THE 1,298
VENDOR SELLS A PREPAID AUTHORIZATION NUMBER OR A PREPAID 1,299
TELEPHONE CALLING CARD, THE SALE IS CONCLUSIVELY DETERMINED TO BE 1,301
CONSUMMATED AT THE VENDOR'S PLACE OF BUSINESS AND SHALL BE TAXED 1,302
AT THE TIME OF SALE. IF THE VENDOR SELLS A PREPAID AUTHORIZATION 1,303
NUMBER OR PREPAID TELEPHONE CALLING CARD THROUGH A TELEPHONE 1,304
CALL, ELECTRONIC COMMERCE, OR ANY OTHER FORM OF REMOTE COMMERCE, 1,305
THE SALE IS CONCLUSIVELY DETERMINED TO BE MADE AT THE CONSUMER'S 1,306
SHIPPING ADDRESS, OR, IF THERE IS NO ITEM SHIPPED, AT THE 1,307
CONSUMER'S BILLING ADDRESS.
Section 2. That existing sections 4165.01, 4165.02, 1,309
4165.03, 4165.04, 5739.01, and 5739.033 of the Revised Code are 1,310
hereby repealed. 1,311
Section 3. Sections 5739.01 and 5739.033 of the Revised 1,313
32
Code, as amended by this act, shall take effect January 1, 2000. 1,314