As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 612 5
1999-2000 6
REPRESENTATIVES JOLIVETTE-MOTTLEY-SCHURING 8
_________________________________________________________________ 9
A B I L L
To amend sections 3734.904, 3734.907, 3769.088, 11
4301.422, 4303.33, 4305.13, 4305.131, 5703.05, 12
5703.11, 5703.37, 5705.37, 5711.04, 5711.18,
5711.25, 5711.28, 5711.31, 5717.01, 5717.02, 13
5727.11, 5727.26, 5727.47, 5727.89, 5728.01, 14
5728.02, 5728.03, 5728.04, 5728.06, 5728.08, 15
5728.09, 5728.10, 5733.11, 5733.28, 5735.01,
5735.023, 5735.05, 5735.12, 5735.121, 5735.14, 16
5735.141, 5735.142, 5735.145, 5735.18, 5735.23, 17
5739.01, 5739.02, 5739.03, 5739.032, 5739.033,
5739.12, 5739.122, 5739.13, 5739.133, 5739.15, 18
5739.17, 5739.19, 5739.30, 5741.02, 5741.121, 19
5743.03, 5743.081, 5743.082, 5743.52, 5743.56, 20
5747.07, 5747.09, 5747.13, 5747.15, 5749.07,
5749.08, and 5749.15, to enact sections 5703.054, 21
5703.055, 5703.056, and 5735.012, and to repeal 22
sections 5703.141, 5735.17, 5735.32, 5739.161,
and 5747.082 of the Revised Code to authorize the 23
electronic filing of certain documents with the 24
tax commissioner and treasurer of state, extend 25
the time for filing petitions for reassessments,
make various charges and penalties discretionary 26
rather than mandatory, change the method of 27
service of notices by the tax commissioner, 28
authorize the use of delivery services instead of
the postal service for delivery of certain 29
documents to the tax commissioner, board of tax 30
appeals, and treasurer of state, redefine and
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specify certain vehicles for purposes of the 32
highway use and motor fuel taxes, establish 33
procedures for claiming exemptions from the use
tax, and make other changes related to the 34
administration of the tax laws by the department 35
of taxation, and to amend the version of section
5741.02 of the Revised Code that is scheduled to 36
take effect July 1, 2001, to continue the 37
provisions of this act on and after that date. 38
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 40
Section 1. That sections 3734.904, 3734.907, 3769.088, 42
4301.422, 4303.33, 4305.13, 4305.131, 5703.05, 5703.11, 5703.37, 43
5705.37, 5711.04, 5711.18, 5711.25, 5711.28, 5711.31, 5717.01, 44
5717.02, 5727.11, 5727.26, 5727.47, 5727.89, 5728.01, 5728.02, 45
5728.03, 5728.04, 5728.06, 5728.08, 5728.09, 5728.10, 5733.11, 46
5733.28, 5735.01, 5735.023, 5735.05, 5735.12, 5735.121, 5735.14, 47
5735.141, 5735.142, 5735.145, 5735.18, 5735.23, 5739.01, 5739.02, 48
5739.03, 5739.032, 5739.033, 5739.12, 5739.122, 5739.13, 49
5739.133, 5739.15, 5739.17, 5739.19, 5739.30, 5741.02, 5741.121, 50
5743.03, 5743.081, 5743.082, 5743.52, 5743.56, 5747.07, 5747.09, 51
5747.13, 5747.15, 5749.07, 5749.08, and 5749.15 be amended and 52
sections 5703.054, 5703.055, 5703.056, and 5735.012 of the 53
Revised Code be enacted to read as follows:
Sec. 3734.904. (A) By the twentieth day of each month, 62
each person required to pay the fee imposed by section 3734.901 63
of the Revised Code shall file with the treasurer of state a 64
return as prescribed by the tax commissioner and shall make 65
payment of the full amount of the fee due for the preceding month 66
after deduction of any discount provided for under division (E) 67
of this section. The return shall be signed by the person 68
required to file it, or an authorized employee, officer, or 69
agent. The treasurer shall mark on the return the date it was 70
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received and indicate payment or nonpayment of the fee shown to 71
be due on the return. The treasurer immediately shall transmit 72
all returns to the tax commissioner. The return shall be deemed 73
filed when received by the treasurer of state. 74
(B) Any person required by this section to file a return 76
who fails to file such a return within the period prescribed 77
shall MAY BE REQUIRED TO pay an additional charge of fifty 78
dollars or ten per cent of the fee required to be paid for the 80
reporting period, whichever is greater. The commissioner may 81
collect the additional charge by assessment pursuant to section 82
3734.907 of the Revised Code. The commissioner may remit all or 83
a portion of the additional charge and may adopt rules relating 84
thereto.
(C) If any fee due is not paid timely in accordance with 86
this section, the person liable for the fee shall pay interest, 87
calculated at the rate per annum as prescribed by section 5703.47 88
of the Revised Code, from the date the fee payment was due to the 89
date of payment or to the date an assessment is issued, whichever 91
occurs first. Interest shall be paid in the same manner as the
fee, and the commissioner may collect the interest by assessment 93
pursuant to section 3734.907 of the Revised Code.
(D) If, in the estimation of the tax commissioner, the 95
average liability of the person liable for the fee is such as not 96
to merit monthly filing, the commissioner may authorize the 97
person to file and pay at less frequent intervals. Returns are 98
due by the twentieth day of the month following the close of the 99
applicable reporting period authorized under this division. 100
(E) If a return is filed and the amount of the fee shown 102
to be due on the return is paid on or before the date that the 103
return is required to be filed under division (A) of this section 104
or pursuant to division (D) of this section, whichever is 105
applicable, the person liable for the fee is entitled to a 106
discount of four per cent of the amount shown to be due on the 107
return. 108
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Sec. 3734.907. (A) Any person required to pay the fee 117
imposed by section 3734.901 of the Revised Code is personally 118
liable for the fee. The tax commissioner may make an assessment, 119
based upon any information in the commissioner's possession, 120
against any person who fails to file a return or pay any fee, 121
interest, or additional charge as required by sections 3734.90 to 122
3734.9014 of the Revised Code. The commissioner shall give the 123
person assessed written notice of the assessment by personal 124
service or certified mail AS PROVIDED IN SECTION 5703.37 OF THE 125
REVISED CODE.
(B) When the information in the possession of the tax 127
commissioner indicates that a person liable for the fee imposed 128
by section 3734.901 of the Revised Code has not paid the full 129
amount of fee due, the commissioner may audit a representative 130
sample of the person's business and may issue an assessment based 131
on the audit. 132
(C) A penalty of UP TO fifteen per cent shall MAY be added 135
to all amounts assessed under this section. The commissioner may 136
adopt rules providing for the IMPOSITION AND remission of the 137
penalties.
(D) Unless the person assessed files with the tax 139
commissioner within thirty SIXTY days after service of the notice 141
of assessment, either personally or by certified mail AS PROVIDED 143
IN SECTION 5703.056 OF THE REVISED CODE, a petition for 144
reassessment in writing by the person assessed or the person's 145
authorized agent having knowledge of the facts, the assessment
becomes final and the amount of the assessment is due and payable 148
from the person assessed to the treasurer of state. A petition 149
shall indicate the objections to the assessment of the person 150
assessed, but additional objections may be raised in writing 151
prior to the date shown on the final determination of the person 152
assessed, but additional objections may be raised in writing 153
prior to the date shown on the final determination of the tax 154
commissioner. The commissioner shall grant the petitioner a
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hearing on the petition, unless waived by the petitioner. 155
The commissioner may make any correction to the assessment 157
that the commissioner finds proper and shall issue a final 159
determination thereon. The commissioner shall serve a copy of
the final determination on the petitioner either by personal 160
service or by certified mail, and the commissioner's decision in 162
the matter is final, subject to appeal under section 5717.02 of 163
the Revised Code.
(E) After an assessment becomes final, if any portion of 165
the assessment, including accrued interest, remains unpaid, a 166
certified copy of the commissioner's entry making the assessment 167
final may be filed in the office of the clerk of the court of 168
common pleas in the county in which the person assessed resides 169
or in which the person's business is conducted. If the person 171
assessed maintains no place of business in this state and is not 172
a resident of this state, the certified copy of the entry may be 173
filed in the office of the clerk of the court of common pleas of 174
Franklin county. 175
The clerk, immediately upon the filing of the entry, shall 177
enter a judgment for the state against the person assessed in the 178
amount shown to be due. The judgment may be filed by the clerk 179
in a loose-leaf book entitled "special judgments for state tire 180
fee," and shall have the same effect as other judgments. 182
Execution shall issue upon the judgment upon the request of the 183
tax commissioner, and all laws applicable to sales on execution 184
shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 186
days after the day the assessment was issued shall bear interest 188
at the rate per annum prescribed by section 5703.47 of the 189
Revised Code from the day the tax commissioner issues the 192
assessment until the day the assessment is paid. Interest shall 193
be paid in the same manner as the fee and may be collected by the 194
issuance of an assessment under this section. 195
(F) If the commissioner believes that collection of the 197
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fee will be jeopardized unless proceedings to collect or secure 198
collection of the fee are instituted without delay, the 199
commissioner may issue a jeopardy assessment against the person 200
liable for the fee. Upon issuance of the jeopardy assessment, 201
the commissioner immediately shall file an entry with the clerk 202
of the court of common pleas in the manner prescribed by division 203
(E) of this section. Notice of the jeopardy assessment shall be 204
served on the person assessed or the person's legal 205
representative, AS PROVIDED IN SECTION 5703.37 OF THE REVISED 206
CODE, within five days of the filing of the entry with the clerk. 207
The total amount assessed is immediately due and payable, unless 208
the person assessed files a petition for reassessment in 209
accordance with division (D) of this section and provides 210
security in a form satisfactory to the commissioner and in an 211
amount sufficient to satisfy the unpaid balance of the 212
assessment. Full or partial payment of the assessment does not 213
prejudice the commissioner's consideration of the petition for 214
reassessment.
(G) All money collected by the commissioner under this 216
section shall be paid to the treasurer of state as revenue 217
arising from the fee imposed by section 3734.901 of the Revised 218
Code. 219
Sec. 3769.088. (A) If any permit holder required by this 226
chapter to pay the taxes levied by sections 3769.08, 3769.087, 227
3769.26, and 3769.28 of the Revised Code fails to pay the taxes, 229
the tax commissioner may make an assessment against the permit 230
holder based upon any information in the commissioner's
possession. 231
A penalty of UP TO fifteen per cent shall MAY be added to 233
the amount of every assessment made under this section. The 235
commissioner may adopt rules providing for the IMPOSITION AND 236
remission of penalties added to assessments made under this 238
section.
The commissioner shall give the party assessed written 240
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notice of the assessment by personal service or certified mail AS 241
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 242
(B) Unless the party to whom the notice of assessment is 244
directed files with the commissioner within thirty SIXTY days 245
after service of the notice of assessment, either personally or 247
by certified mail, a petition for reassessment in writing, signed 248
by the party assessed, or by the party's authorized agent having 250
knowledge of the facts, the assessment shall become final and the 252
amount of the assessment shall be due and payable from the party 253
assessed to the tax commissioner. The petition shall indicate 254
the objections of the party assessed, but additional objections 255
may be raised in writing if received prior to the date shown on 256
the final determination by the commissioner. 257
Unless the petitioner waives a hearing, the commissioner 259
shall assign a time and place for the hearing on the petition and 260
notify the petitioner of the time and place of the hearing by 261
personal service or certified mail, but the commissioner may 262
continue the hearing from time to time if necessary. 263
The commissioner may make such correction to the assessment 265
as the commissioner finds proper. The commissioner shall serve a 267
copy of the commissioner's final determination on the petitioner 268
by personal service or certified mail, and the commissioner's 269
decision in the matter shall be final, subject to appeal as 271
provided in section 5717.02 of the Revised Code. Only objections 272
decided on the merits by the board of tax appeals or a court 273
shall be given collateral estoppel or res judicata effect in 274
considering an application for refund of amounts paid pursuant to 275
the assessment.
(C) After an assessment becomes final, if any portion of 277
the assessment remains unpaid, including accrued interest, a 278
certified copy of the commissioner's entry making the assessment 280
final may be filed in the office of the clerk of the court of 281
common pleas in the county in which the place, track, or 282
enclosure for which the permit was issued is located or the 283
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county in which the party assessed resides or has its principal 284
place of business. If the party assessed maintains no place of 285
business in this state and is not a resident of this state, the 286
certified copy of the entry may be filed in the office of the 287
clerk of the court of common pleas of Franklin county. 288
The clerk, immediately upon the filing of such entry, shall 290
enter a judgment for the state against the party assessed in the 291
amount shown on the entry. The judgment may be filed by the 292
clerk in a loose-leaf book entitled "special judgments for state 293
horse racing tax," and shall have the same effect as other 295
judgments. Execution shall issue upon the judgment upon the 296
request of the tax commissioner, and all laws applicable to sales 297
on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 300
days after the day the assessment was issued shall bear interest 301
at the rate per annum prescribed by section 5703.47 of the 302
Revised Code from the day the tax commissioner issues the 304
assessment until the day the assessment is paid. Interest shall 305
be paid in the same manner as the tax and may be collected by the 306
issuance of an assessment under this section. 307
(D) All money collected by the commissioner under this 309
section shall be treated as revenue arising from the taxes 310
imposed by sections 3769.08, 3769.087, 3769.26, and 3769.28 of 312
the Revised Code.
Sec. 4301.422. (A) Any person who makes sales of beer, 323
cider, wine, or mixed beverages to persons for resale at retail 324
in a county in which a tax has been enacted pursuant to section 326
4301.421 or 4301.424 of the Revised Code, and any manufacturer, 327
bottler, importer, or other person who makes sales at retail in 328
the a county upon which the tax has not been paid, is liable for 329
the tax. Each person liable for the tax shall register with the 330
tax commissioner on a form prescribed by the commissioner and 331
provide whatever information the commissioner considers 332
necessary.
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(B) Each person liable for the tax shall file a return and 334
pay the tax to the treasurer of state by the last day of the 335
month following the month in which the sale occurred. The return 336
is considered to be filed when received by the treasurer of 337
state. The return shall be prescribed by the commissioner, and 338
no person filing such a return shall fail to provide the 339
information specified on the return. If the return is filed and 340
the amount of tax shown on the return to be due is paid on or 341
before the date the return is required to be filed, the person 342
required to file the return shall receive an administrative fee 343
of two and one-half per cent of that person's total tax liability 344
under section 4301.421 of the Revised Code for the purpose of 345
offsetting additional costs incurred in collecting and remitting 346
the tax. Any person required to file a return who fails to file 347
timely shall MAY BE REQUIRED TO forfeit and pay into the state 348
treasury AN AMOUNT NOT EXCEEDING fifty dollars or ten per cent of 350
the tax due, whichever is greater, as revenue arising from the 351
tax. That amount may be collected by assessment in the manner 352
specified in sections 4305.13 and 4305.131 of the Revised Code. 353
(C) A tax levied pursuant to section 4301.421 or 4301.424 355
of the Revised Code shall be administered by the tax 357
commissioner. The commissioner shall have all powers and 358
authority incident to such administration, including examination 359
of records, audit, refund, assessment, and seizure and forfeiture 360
of untaxed beverages. The procedures, rights, privileges, 361
limitations, prohibitions, responsibilities, and duties specified 362
in sections 4301.48 to 4301.52, 4305.13, 4305.131, and 4307.01 to 363
4307.12 of the Revised Code apply in the administration of the 364
tax.
(D) Each person required to pay the tax levied pursuant to 366
section 4301.421 or 4301.424 of the Revised Code who sells beer, 367
cider, wine, or mixed beverages for resale at retail within a 368
county in which the tax is levied shall clearly mark on all 369
invoices, billings, and similar documents the amount of tax and 370
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the name of the county in which the tax is levied. 371
(E) Each person required to pay the tax levied by section 373
4301.421 or 4301.424 of the Revised Code shall maintain complete 374
records of all sales for at least three years. The records shall 376
be open to inspection by the tax commissioner. 377
Sec. 4303.33. (A) Every A-1 permit holder in this state, 386
every bottler, importer, wholesale dealer, broker, producer, or 388
manufacturer of beer outside this state and within the United 389
States, and every B-1 permit holder and importer importing beer 390
from any manufacturer, bottler, person, or group of persons 391
however organized outside the United States for sale or 392
distribution for sale in this state, on or before the eighteenth 393
day of each month, shall make and file with the treasurer of 394
state upon a form prescribed by the tax commissioner an advance 395
tax payment in an amount estimated to equal the taxpayer's tax 396
liability for the month in which the advance tax payment is made. 397
If the advance tax payment credits claimed on the report are for 399
advance tax payments received by the treasurer of state on or 400
before the eighteenth day of the month covered by the report, the 401
taxpayer is entitled to an additional credit of three per cent of 402
the advance tax payment and a discount of three per cent shall be 403
allowed the taxpayer at the time of filing the report if filed as 404
provided in division (B) of this section on any amount by which 405
the tax liability reflected in the report exceeds the advance tax 406
payment estimate by not more than ten per cent. The additional 407
three per cent credit and three per cent discount shall be in 408
consideration for advancing the payment of the tax and other 409
services performed by the permit holder and other taxpayers in 410
the collection of the tax. The treasurer of state shall stamp or 411
otherwise mark thereon the date the advance tax payment was 412
received by the treasurer and the amount of the advance tax 414
payment, and shall transmit that information to the tax 415
commissioner.
"Advance tax payment credit" means credit for payments made 418
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by an A-1 or B-1 permit holder and any other persons during the 419
period covered by a report which was made in anticipation of the 420
tax liability required to be reported on that report. 421
"Tax liability" as used in division (A) of this section 424
means the total gross tax liability of an A-1 or B-1 permit 425
holder and any other persons for the period covered by a report 426
before any allowance for credits and discount. 427
(B) Every A-1 permit holder in this state, every bottler, 430
importer, wholesale dealer, broker, producer, or manufacturer of 431
beer outside this state and within the United States, and every 432
B-1 permit holder importing beer from any manufacturer, bottler, 433
person, or group of persons however organized outside the United 434
States, on or before the tenth day of each month, shall make and 435
file a report for the preceding month upon a form prescribed by 436
the tax commissioner which report shall show the amount of beer 437
produced, sold, and distributed for sale in this state by the A-1 438
permit holder, sold and distributed for sale in this state by 439
each manufacturer, bottler, importer, wholesale dealer, or broker 440
outside this state and within the United States, and the amount 441
of beer imported into this state from outside the United States 442
and sold and distributed for sale in this state by the B-1 permit 443
holder or importer. 444
The report shall be filed by mailing it to the treasurer of 447
state, together with payment of the tax levied by sections 448
4301.42 and 4305.01 of the Revised Code shown to be due on the 449
report after deduction of advance payment credits and any 451
additional credits or discounts provided for under this section. 452
The treasurer of state shall stamp or otherwise mark on each 453
report the date it was received by the treasurer, the amount of 454
the tax payment accompanying the report, and shall transmit the 456
report to the tax commissioner.
(C) Every A-2 and A-4, B-2, B-3, B-4, and B-5 permit 459
holder in this state, on or before the eighteenth day of each 460
month, shall make and file a report with the treasurer of state 461
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upon a form prescribed by the tax commissioner which report shall 462
show, on the report of each A-2 and A-4 permit holder the amount 463
of wine, cider, and mixed beverages produced and sold, or sold in 464
this state by each such A-2 and A-4 permit holder for the next 465
preceding calendar month and such other information as the tax 466
commissioner requires, and on the report of each such B-2, B-3, 467
B-4, and B-5 permit holder the amount of wine, cider, and mixed 468
beverages purchased from an importer, broker, wholesale dealer, 469
producer, or manufacturer located outside this state and sold and 470
distributed in this state by such B-2, B-3, B-4, and B-5 permit 471
holder, for the next preceding calendar month and such other 472
information as the tax commissioner requires. 473
Every such A-2, A-4, B-2, B-3, B-4, and B-5 permit holder 476
in this state shall remit with the report the tax levied by 477
sections 4301.43 and, if applicable, 4301.432 of the Revised Code 479
less a discount thereon of three per cent of the total tax so 480
levied and paid, provided the return is filed together with 481
remittance of the amount of tax shown to be due thereon, within 482
the time prescribed. The treasurer of state shall stamp or 483
otherwise mark on all reports the date it was received by the 484
treasurer and the amount of tax payment accompanying all reports 486
and shall transmit the return to the commissioner. Any permit 487
holder or other persons who fail to file a report under this 488
section, for each day the person so fails, shall MAY BE REQUIRED 489
TO forfeit and pay into the state treasury the sum of one dollar 490
as revenue arising from the tax imposed by sections 4301.42, 491
4301.43, 4301.432, and 4305.01 of the Revised Code, and that sum 492
may be collected by assessment in the manner provided in section 493
4305.13 of the Revised Code. 494
(D) Every B-1 permit holder and importer in this state 497
importing beer from any manufacturer, bottler, person, or group 498
of persons however organized, outside the United States, if 499
required by the tax commissioner shall post a bond payable to the 500
state in such form and amount as the commissioner prescribes with 501
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surety to the satisfaction of the tax commissioner, conditioned 502
upon the payment to the treasurer of state of taxes levied by 503
sections 4301.42 and 4305.01 of the Revised Code. 504
(E) No such wine, beer, cider, or mixed beverages sold or 506
distributed in this state shall be taxed more than once under 508
sections 4301.42, 4301.43, and 4305.01 of the Revised Code. 509
(F) As used in this section: 511
(1) "Cider" has the same meaning as in section 4301.01 of 513
the Revised Code.
(2) "Wine" has the same meaning as in section 4301.01 of 516
the Revised Code, except that "wine" does not include cider. 517
Sec. 4305.13. (A) If the tax commissioner finds that any 526
permit holder, liable for tax under Chapter 4301., 4305., or 527
4307. of the Revised Code, is about to depart from the state, 528
remove the permit holder's property from the state, conceal the 530
permit holder's self or property, or do any other act tending to 531
prejudice, obstruct, or render wholly or partially ineffectual 532
proceedings to collect the tax, unless the proceedings are 533
commenced without delay, or if the commissioner believes that the 534
collection of the amount due from any permit holder will be 535
jeopardized by delay, the commissioner may issue a jeopardy 536
assessment against the permit holder for the amount of the tax, 537
plus a penalty of UP TO thirty per cent. Upon issuance of a 538
jeopardy assessment under this division, the total amount 539
assessed shall immediately be due and payable unless security is 540
provided pursuant to division (C) of this section. Any 541
assessment issued under this section shall bear interest as 542
prescribed by section 4305.131 of the Revised Code. 544
(B) The commissioner immediately shall file an entry with 546
the clerk of the court of common pleas in the same manner and 547
with the same effect as provided in section 4305.131 of the 548
Revised Code. Notice of the jeopardy assessment shall be served 549
on the permit holder assessed or the permit holder's legal 550
representative, AS PROVIDED IN SECTION 5703.37 OF THE REVISED 551
14
CODE, within five days of the filing of the entry. The permit 553
holder assessed may petition for reassessment within thirty SIXTY 554
days of receipt of the notice of jeopardy assessment in the same 556
manner as provided in section 4305.131 of the Revised Code. Full 557
or partial payment of the assessment shall not prejudice the 558
commissioner's consideration of the merits of the assessment as 559
contested by the petition for reassessment. Upon notification of 560
the existence of the judgment filed pursuant to this division, 561
any public official having control or custody of any funds or 562
property of the person assessed immediately shall pay or deliver 563
the funds or property to the commissioner as full or partial 564
satisfaction of the jeopardy assessment. However, funds or 565
property needed as evidence in criminal proceedings or that is 566
expected to be forfeited pursuant to section 2923.35, 2933.41, or 567
2933.43 of the Revised Code need not be relinquished by the 568
public official. Upon disposition of criminal and forfeiture 569
proceedings, funds and property not needed as evidence and not 570
forfeited shall be delivered to the commissioner. 571
(C) If the permit holder subject to a jeopardy assessment 573
files a petition for reassessment and posts security satisfactory 574
to the commissioner in an amount sufficient to satisfy the unpaid 575
balance of the assessment, execution on the judgment shall be 576
stayed pending disposition of the petition for reassessment and 577
all appeals resulting from the petition. If the security is 578
sufficient to satisfy the full amount of the assessment, the 579
commissioner shall return any funds or property of the permit 580
holder previously seized. Upon satisfaction of the assessment 581
the commissioner shall order the security released and the 582
judgment vacated. 583
(D) THE COMMISSIONER MAY ADOPT RULES PROVIDING FOR THE 585
IMPOSITION AND REMISSION OF PENALTIES ADDED TO ASSESSMENTS UNDER 586
THIS SECTION.
Sec. 4305.131. (A) If any permit holder fails to pay the 595
taxes levied in section 4301.42, 4301.43, 4301.432, or 4305.01 of 596
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the Revised Code in the manner prescribed by section 4303.33 of 597
the Revised Code, or in section 4301.421 or 4301.424 of the 598
Revised Code in the manner prescribed in section 4301.422 of the 599
Revised Code, and by the rules of the tax commissioner, the 600
commissioner may make an assessment against the permit holder 601
based upon any information in the commissioner's possession. 602
No assessment shall be made against any permit holder for 604
any taxes imposed by section 4301.42, 4301.421, 4301.424, 605
4301.43, 4301.432, or 4305.01 of the Revised Code more than three 606
years after the last day of the calendar month in which the sale 607
was made or more than three years after the return for that 608
period is filed, whichever is later. This section does not bar 609
an assessment against any permit holder or registrant as provided 610
in section 4303.331 of the Revised Code who fails to file a 611
return as required by section 4301.422 or 4303.33 of the Revised 612
Code, or who files a fraudulent return. 613
A penalty of UP TO thirty per cent shall MAY be added to 615
the amount of every assessment made under this section. The 617
commissioner may adopt rules providing for the IMPOSITION AND 618
remission of penalties added to assessments made under this 620
section.
The commissioner shall give the party assessed written 622
notice of the assessment by personal service or certified mail AS 623
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 624
(B) Unless the party to whom the notice of assessment is 626
directed files with the commissioner within thirty SIXTY days 627
after service of the notice of assessment, either personally or 629
by certified mail AS PROVIDED IN SECTION 5703.056 OF THE REVISED 631
CODE, a petition for reassessment in writing, signed by the party 633
assessed, or by that party's authorized agent having knowledge of 635
the facts, the assessment shall become final and the amount of 637
the assessment shall be due and payable from the party assessed 638
to the treasurer of state. The petition shall indicate the 639
objections of the party assessed, but additional objections may 640
16
be raised in writing if received prior to the date shown on the 641
final determination by the commissioner.
Unless the petitioner waives a hearing, the commissioner 643
shall assign a time and place for the hearing on the petition and 644
notify the petitioner of the time and place of the hearing by 645
personal service or certified mail, but the commissioner may 646
continue the hearing from time to time if necessary. 647
The commissioner may make such correction to the assessment 649
as the commissioner finds proper. The commissioner shall serve a 651
copy of the final determination on the petitioner by personal 652
service or certified mail, and the commissioner's decision in the 653
matter shall be final, subject to appeal as provided in section 654
5717.02 of the Revised Code. Only objections decided on the
merits by the board of tax appeals or a court shall be given 655
collateral estoppel or res judicata effect in considering an 656
application for refund of amounts paid pursuant to the 657
assessment.
(C) After an assessment becomes final, if any portion of 659
the assessment remains unpaid, including accrued interest, a 660
certified copy of the commissioner's entry making the assessment 662
final may be filed in the office of the clerk of the court of
common pleas in the county in which the permit holder's place of 663
business is located or the county in which the party assessed 664
resides. If the party assessed maintains no place of business in 665
this state and is not a resident of this state, the certified 666
copy of the entry may be filed in the office of the clerk of the 667
court of common pleas of Franklin county. 668
The clerk, immediately upon the filing of the entry, shall 670
enter a judgment for the state against the party assessed in the 671
amount shown on the entry. The judgment may be filed by the 672
clerk in a loose-leaf book entitled "special judgments for state 673
beer and liquor sales taxes," and shall have the same effect as 675
other judgments. Execution shall issue upon the judgment upon 676
the request of the tax commissioner, and all laws applicable to 677
17
sales on execution shall apply to sales made under the judgment 678
except as otherwise provided in this chapter and Chapters 4301. 680
and 4307. of the Revised Code. 681
The portion of the assessment not paid within thirty SIXTY 684
days after the day the assessment was issued shall bear interest 686
at the rate per annum prescribed by section 5703.47 of the 687
Revised Code from the day the tax commissioner issues the 690
assessment until it is paid. Interest shall be paid in the same 691
manner as the tax and may be collected by the issuance of an 692
assessment under this section. 693
(D) All money collected under this section shall be 695
considered as revenue arising from the taxes imposed by sections 696
4301.42, 4301.421, 4301.424, 4301.43, 4301.432, and 4305.01 of 697
the Revised Code. 698
Sec. 5703.05. All powers, duties, and functions of the 707
department of taxation are vested in and shall be performed by 708
the tax commissioner, which powers, duties, and functions shall 709
include, but shall not be limited to, the following: 710
(A) Prescribing all blank forms which the department is 712
authorized to prescribe, and to provide such forms and distribute 713
the same as required by law and the rules of the department. The 714
tax commissioner shall include a mail-in registration form 715
prescribed in section 3503.14 of the Revised Code within the 716
return and instructions for the tax levied in odd-numbered years 717
under section 5747.02 of the Revised Code, beginning with the tax 718
levied for 1995. The secretary of state shall bear all costs for 720
the inclusion of the mail-in registration form. That form shall 721
be addressed for return to the office of the secretary of state.
(B) Exercising the authority provided by law, including 723
orders from bankruptcy courts, relative to remitting or refunding 725
taxes or assessments, including penalties and interest thereon, 726
illegally or erroneously assessed or collected, or for any other 727
reason overpaid, and in addition, the commissioner may on written 728
application of any person, firm, or corporation claiming to have 729
18
overpaid to the treasurer of state at any time within five years 730
prior to the making of such application any tax payable under any 731
law which the department of taxation is required to administer 732
which does not contain any provision for refund, or on the 733
commissioner's own motion investigate the facts and make in 734
triplicate a written statement of the commissioner's findings, 735
and, if the commissioner finds that there has been an 736
overpayment, issue in triplicate a certificate of abatement 737
payable to the taxpayer, the taxpayer's assigns, or legal 738
representative which shows the amount of the overpayment and the 739
kind of tax overpaid. One copy of such statement shall be 740
entered on the journal of the commissioner, one shall be
certified to the attorney general, and one certified copy shall 742
be delivered to the taxpayer. All copies of the certificate of 743
abatement shall be transmitted to the attorney general, and if 744
the attorney general finds it to be correct the attorney general 745
shall so certify on each copy, and deliver one copy to the 746
taxpayer, one copy to the commissioner, and the third copy to the 747
treasurer of state. Except as provided in sections 5725.08 and
5725.16 of the Revised Code the taxpayer's copy of any 749
certificates of abatement may be tendered by the payee or 750
transferee thereof to the treasurer of state as payment, to the 751
extent of the amount thereof, of any tax payable to the treasurer 752
of state.
(C) Exercising the authority provided by law relative to 754
consenting to the compromise and settlement of tax claims; 755
(D) Exercising the authority provided by law relative to 757
the use of alternative tax bases by taxpayers in the making of 758
personal property tax returns; 759
(E) Exercising the authority provided by law relative to 761
authorizing the prepayment of taxes on retail sales of tangible 762
personal property or on the storage, use, or consumption of 763
personal property, and waiving the collection of such taxes from 764
the consumers; 765
19
(F) Exercising the authority provided by law to revoke 767
licenses; 768
(G) Maintaining a continuous study of the practical 770
operation of all taxation and revenue laws of the state, the 771
manner in which and extent to which such laws provide revenues 772
for the support of the state and its political subdivisions, the 773
probable effect upon such revenue of possible changes in existing 774
laws, and the possible enactment of measures providing for other 775
forms of taxation. For this purpose the commissioner may 776
establish and maintain a division of research and statistics, and 777
may appoint necessary employees who shall be in the unclassified 778
civil service; the results of such study shall be available to 779
the members of the general assembly and the public. 780
(H) Making all tax assessments, valuations, findings, 782
determinations, computations, and orders the department of 783
taxation is by law authorized and required to make and, pursuant 784
to time limitations provided by law, on the commissioner's own 786
motion, reviewing, redetermining, or correcting any tax
assessments, valuations, findings, determinations, computations, 787
or orders the commissioner has made, but the commissioner shall 788
not review, redetermine, or correct any tax assessment, 789
valuation, finding, determination, computation, or order which 790
the commissioner has made as to which an appeal or application 791
for rehearing, review, redetermination, or correction has been 792
filed with the board of tax appeals, unless such appeal or 793
application is withdrawn by the appellant or applicant or 794
dismissed; 795
(I) Appointing not more than five deputy tax 797
commissioners, who, under such regulations as the rules of the 798
department of taxation prescribe, may act for the commissioner in 799
the performance of such duties as the commissioner prescribes in 801
the administration of the laws which the commissioner is
authorized and required to administer, and who shall serve in the 802
unclassified civil service at the pleasure of the commissioner, 803
20
but if a person who holds a position in the classified service is 804
appointed, it shall not affect the civil service status of such 805
person;. THE COMMISSIONER MAY DESIGNATE NOT MORE THAN TWO OF THE 806
DEPUTY COMMISSIONERS TO ACT AS COMMISSIONER IN CASE OF THE 807
ABSENCE, DISABILITY, OR RECUSAL OF THE COMMISSIONER OR VACANCY IN 808
THE OFFICE OF COMMISSIONER. THE COMMISSIONER MAY ADOPT RULES 809
RELATING TO THE ORDER OF PRECEDENCE OF SUCH DESIGNATED DEPUTY 810
COMMISSIONERS AND TO THEIR ASSUMPTION AND ADMINISTRATION OF THE 811
OFFICE OF COMMISSIONER.
(J) Appointing and prescribing the duties of all other 813
employees of the department of taxation necessary in the 814
performance of the work of the department which the tax 815
commissioner is by law authorized and required to perform, and 816
creating such divisions or sections of employees as, in the 817
commissioner's judgment, is proper; 818
(K) Organizing the work of the department, which the 820
commissioner is by law authorized and required to perform, so 821
that, in the commissioner's judgment, an efficient and economical 822
administration of the laws will result; 823
(L) Maintaining a journal, which is open to public 825
inspection, in which the commissioner shall keep a record of all 827
actions taken by the commissioner relating to assessments and the 828
reasons therefor;
(M) Adopting and promulgating, in the manner provided by 830
section 5703.14 of the Revised Code, all rules of the department, 831
including rules for the administration of sections 3517.16, 832
3517.17, and 5747.081 of the Revised Code; 833
(N) Destroying any or all returns or assessment 835
certificates in the manner authorized by law; 836
(O) Adopting rules, in accordance with division (B) of 838
section 325.31 of the Revised Code, governing the expenditure of 839
moneys from the real estate assessment fund under that division. 840
Sec. 5703.054. THE TAX COMMISSIONER SHALL PRESCRIBE THE 842
FORM THAT THE SIGNATURE AND DECLARATION, IF ANY, SHALL TAKE ON 843
21
ANY DOCUMENT REQUIRED TO BE FILED WITH THE COMMISSIONER AND ON 844
ANY DOCUMENT REQUIRED UNDER CHAPTER 3734., 3769., 4303., OR 4305. 845
OR TITLE LVII OF THE REVISED CODE TO BE FILED WITH THE TREASURER 848
OF STATE. THE COMMISSIONER MAY AUTHORIZE AN ELECTRONIC OR OTHER
ALTERNATIVE FORM OF FILING OF ANY DOCUMENT REQUIRED TO BE FILED 850
WITH THE COMMISSIONER OR THE TREASURER OF STATE UNDER CHAPTER 851
3734., 3769., 4303., OR 4305. OR TITLE LVII OF THE REVISED CODE. 853
Sec. 5703.055. A PERSON MAY, AND IF REQUIRED BY THE TAX 855
COMMISSIONER SHALL, ROUND TO THE NEAREST WHOLE DOLLAR ALL AMOUNTS 856
THE PERSON IS REQUIRED TO ENTER ON ANY RETURN, REPORT, VOUCHER, 857
OR OTHER DOCUMENT. ANY FRACTIONAL PART OF A DOLLAR THAT EQUALS 858
OR EXCEEDS FIFTY CENTS SHALL BE ROUNDED TO THE NEXT WHOLE DOLLAR, 859
AND ANY FRACTIONAL PART OF A DOLLAR THAT IS LESS THAN FIFTY CENTS 860
SHALL BE DROPPED. IF A PERSON CHOOSES OR IS REQUIRED TO ROUND 861
AMOUNTS ENTERED ON THE DOCUMENT, THE PERSON SHALL ROUND ALL 862
AMOUNTS ENTERED. 863
Sec. 5703.056. (A) AS USED IN ANY SECTION OF THE REVISED 866
CODE THAT REQUIRES OR PERMITS A PAYMENT TO BE MADE OR DOCUMENT TO 868
BE SUBMITTED TO THE TAX COMMISSIONER OR THE BOARD OF TAX APPEALS 869
BY MAIL AND AS USED IN ANY SECTION OF CHAPTER 3734., 3769., 870
4303., OR 4305. OR TITLE LVII OF THE REVISED CODE THAT REQUIRES 872
OR PERMITS A PAYMENT TO BE MADE OR DOCUMENT TO BE SUBMITTED TO 873
THE TREASURER OF STATE BY MAIL: 874
(1) "CERTIFIED MAIL," "EXPRESS MAIL," "UNITED STATES 876
MAIL," "UNITED STATES POSTAL SERVICE," AND SIMILAR TERMS INCLUDE 879
ANY DELIVERY SERVICE AUTHORIZED PURSUANT TO DIVISION (B) OF THIS 880
SECTION.
(2) "POSTMARK DATE," "DATE OF POSTMARK," AND SIMILAR TERMS 882
INCLUDE THE DATE RECORDED AND MARKED IN THE MANNER DESCRIBED IN 883
DIVISION (B)(3) OF THIS SECTION. 884
(B) THE TAX COMMISSIONER MAY AUTHORIZE THE USE OF A 886
DELIVERY SERVICE FOR THE DELIVERY OF ANY PAYMENT OR DOCUMENT 887
DESCRIBED IN DIVISION (A) OF THIS SECTION IF THE COMMISSIONER 888
FINDS THAT THE DELIVERY SERVICE: 889
22
(1) IS AVAILABLE TO THE GENERAL PUBLIC; 891
(2) IS AT LEAST AS TIMELY AND RELIABLE ON A REGULAR BASIS 893
AS THE UNITED STATES POSTAL SERVICE; 895
(3) RECORDS ELECTRONICALLY TO A DATABASE KEPT IN THE 897
REGULAR COURSE OF ITS BUSINESS, AND MARKS ON THE COVER IN WHICH 898
THE PAYMENT OR DOCUMENT IS ENCLOSED, THE DATE ON WHICH THE 899
PAYMENT OR DOCUMENT WAS GIVEN TO THE DELIVERY SERVICE FOR 900
DELIVERY;
(4) RECORDS ELECTRONICALLY TO A DATABASE KEPT IN THE 902
REGULAR COURSE OF ITS BUSINESS THE DATE ON WHICH THE PAYMENT OR 903
DOCUMENT WAS GIVEN BY THE DELIVERY SERVICE TO THE PERSON WHO 904
SIGNED THE RECEIPT OF DELIVERY AND THE NAME OF THE PERSON WHO 905
SIGNED THE RECEIPT; AND
(5) MEETS ANY OTHER CRITERIA THAT THE TAX COMMISSIONER MAY 907
BY RULE PRESCRIBE. 908
Sec. 5703.11. The department of taxation shall be in 917
continuous session and open for the transaction of business 919
during the business hours of every day, except SATURDAYS, 920
Sundays, and legal holidays. All sessions shall be open to the 921
public, and sessions of the department shall stand and be 922
adjourned without further notice thereof on its records. 923
All of the proceedings of the department shall be shown on 925
its record of proceedings, which shall be a public record, and 926
all voting shall be by calling each member's name by the 927
secretary, and each member's vote shall be recorded on the record 928
of proceedings as cast.
Sec. 5703.37. Every EXCEPT AS OTHERWISE PROVIDED BY 937
SECTION 5711.28, 5711.31, 5727.47, OR 5731.27 OF THE REVISED 938
CODE, A CERTIFIED COPY OF EVERY order or notice, service of which 940
is required, shall be served upon the person or corporation 941
affected thereby either by personal delivery of a certified copy 943
or by mailing a certified copy by registered mail to the person 945
affected thereby, or in case of a corporation, to any officer or 946
agent upon whom a summons may be served. Within the time 947
23
specified in the order of the department of taxation every person 948
or corporation upon whom it is served, if required by the order, 950
shall notify the department, in like manner, whether the terms of 951
the order are accepted and will be obeyed.
Sec. 5705.37. The taxing authority of any subdivision that 960
is dissatisfied with any action of the county budget commission 961
may, through its fiscal officer, appeal to the board of tax 962
appeals within thirty days after the receipt by the subdivision 963
of the official certificate or notice of the commission's action. 964
In like manner, but through its clerk, the board of trustees of 965
any public library, nonprofit corporation, or library association 966
maintaining a free public library that has adopted and certified 967
rules under section 5705.28 of the Revised Code, or any park 968
district may appeal to the board of tax appeals. An appeal under 969
this section shall be taken by the filing of a notice of appeal, 970
either in person or by certified mail, EXPRESS MAIL, OR 971
AUTHORIZED DELIVERY SERVICE AS PROVIDED IN SECTION 5703.056 OF 972
THE REVISED CODE, with the board and with the commission. If 974
notice of appeal is filed by certified mail, EXPRESS MAIL, OR 975
AUTHORIZED DELIVERY SERVICE, date of the United States postmark 976
placed on the sender's receipt by the postal employee to whom the 977
notice of appeal is presented SERVICE OR THE DATE OF RECEIPT 978
RECORDED BY THE AUTHORIZED DELIVERY SERVICE shall be treated as 979
the date of filing. Upon receipt of the notice of appeal, the 980
commission, by certified mail, shall notify all persons who were 981
parties to the proceeding before the commission of the filing of 982
the notice of appeal and shall file proof of notice with the 983
board of tax appeals. The secretary of the commission shall 984
forthwith certify to the board a transcript of the full and 985
accurate record of all proceedings before the commission, 986
together with all evidence presented in the proceedings or 987
considered by the commission, pertaining to the action from which 988
the appeal is taken. The secretary of the commission also shall 989
certify to the board any additional information that the board 990
24
may request.
The board of tax appeals, in a de novo proceeding, shall 992
forthwith consider the matter presented to the commission, and 993
may modify any action of the commission with reference to the 994
budget, the estimate of revenues and balances, the allocation of 995
the library and local government support fund, or the fixing of 996
tax rates. The finding of the board of tax appeals shall be 997
substituted for the findings of the commission, and shall be 998
certified to the tax commissioner, the county auditor, and the 999
taxing authority of the subdivision affected, or to the board of 1,000
public library trustees affected, as the action of the commission 1,001
under sections 5705.01 to 5705.47 of the Revised Code. 1,002
This section does not give the board of tax appeals any 1,004
authority to place any tax levy authorized by law within the 1,005
ten-mill limitation outside of that limitation, or to reduce any 1,006
levy below any minimum fixed by law. 1,007
Sec. 5711.04. Returns (A) EXCEPT AS OTHERWISE PROVIDED IN 1,016
DIVISION (B) OF THE SECTION, RETURNS shall be made, annually, 1,017
between the fifteenth day of February and the thirtieth day of 1,019
April; but when a person or taxpayer engages in business in this 1,020
state after the first day of January in any year he shall make a 1,021
return within ninety days of commencing such business. Upon 1,022
verified application of any taxpayer, and for good cause shown, 1,023
the county auditor may extend the time within which such taxpayer 1,024
may make his A return for a further specified period, not 1,025
exceeding forty-five days TO THE FIFTEENTH DAY OF JUNE. If the 1,026
county auditor fails to allow, in whole, a timely application of 1,028
the taxpayer for an extension of time for filing his A return, 1,029
the taxpayer, upon payment on or before the thirtieth day of 1,030
April of an amount equal to one-half of his THE TAXPAYER'S tax 1,031
for the next preceding year, shall make his A return on or before 1,033
the fifteenth day of June. The 1,034
(B) WHEN A TAXPAYER FIRST ENGAGES IN BUSINESS IN THIS 1,036
STATE AFTER THE FIRST DAY OF JANUARY IN ANY YEAR, THE TAXPAYER 1,037
25
SHALL MAKE A RETURN WITHIN NINETY DAYS OF COMMENCING SUCH 1,038
BUSINESS. UPON VERIFIED APPLICATION OF THE TAXPAYER, AND FOR 1,039
GOOD CAUSE SHOWN, THE COUNTY AUDITOR MAY EXTEND THE TIME WITHIN 1,040
WHICH THE TAXPAYER MAY MAKE THE RETURN FOR A FURTHER SPECIFIED 1,041
PERIOD NOT EXCEEDING FORTY-FIVE DAYS.
(C) THE county auditor shall certify any extension of time 1,044
acquired by the taxpayer to the tax commissioner, and the 1,045
commissioner shall have the same power as to a taxpayer who is 1,046
required to make return to him THE COMMISSIONER. 1,047
Sec. 5711.18. In the case of accounts receivable, the book 1,056
value thereof less book reserves shall be listed and shall be 1,057
taken as the true value thereof unless the assessor finds that 1,058
such net book value is greater or less than the then true value 1,059
of such accounts receivable in money. In the case of personal 1,060
property used in business, the book value thereof less book 1,061
depreciation at such time shall be listed, and such depreciated 1,062
book value shall be taken as the true value of such property, 1,063
unless the assessor finds that such depreciated book value is 1,064
greater or less than the then true value of such property in 1,065
money. Claim for any deduction from net book value of accounts 1,066
receivable or depreciated book value of personal property must be 1,067
made in writing by the taxpayer at the time of making his THE 1,068
TAXPAYER'S return; and when such return is made to the county 1,070
auditor who is required by sections 5711.01 to 5711.36, 1,071
inclusive, of the Revised Code, to transmit it to the tax 1,072
commissioner for assessment, the auditor shall, as deputy of the 1,073
commissioner, investigate such claim and shall enter thereon, or 1,074
attach thereto, in such form as the commissioner prescribes, his 1,075
THE AUDITOR'S findings and recommendations with respect thereto; 1,077
when such return is made to the commissioner, such claim for 1,078
deduction from depreciated book value of personal property shall 1,079
be referred to the auditor, as such deputy, of each county in 1,080
which the property affected thereby is listed for investigation 1,081
and report.
26
ANY CHANGE IN THE METHOD OF DETERMINING TRUE VALUE, AS 1,083
PRESCRIBED BY THE TAX COMMISSIONER ON A PROSPECTIVE BASIS, SHALL 1,085
NOT BE ADMISSIBLE IN ANY JUDICIAL OR ADMINISTRATIVE ACTION OR 1,086
PROCEEDING AS EVIDENCE OF VALUE WITH REGARD TO PRIOR YEARS' 1,087
TAXES. INFORMATION ABOUT THE BUSINESS, PROPERTY, OR TRANSACTIONS
OF ANY TAXPAYER OBTAINED BY THE COMMISSIONER FOR THE PURPOSE OF 1,089
ADOPTING OR MODIFYING ANY SUCH METHOD SHALL NOT BE SUBJECT TO 1,090
DISCOVERY OR DISCLOSURE.
Sec. 5711.25. On or before the second Monday of August, 1,099
annually, the tax commissioner shall transmit to the county 1,100
auditor of each county the preliminary assessment certificates 1,101
pertaining to his THE AUDITOR'S county of taxpayers having 1,102
taxable property in more than one county. The commissioner shall 1,104
transmit to the auditor any amended assessment certificate issued 1,105
by him THE COMMISSIONER, and the auditor shall transmit to the 1,107
commissioner copies of all amended assessment certificates made 1,108
and issued by him THE AUDITOR. Each preliminary assessment 1,110
certificate, and if amended such preliminary assessment 1,111
certificate as last amended, shall become final on the second 1,112
Monday of August of the second year after the filing of a return 1,113
with the county auditor or after the certification of the
preliminary assessment certificate, or thirty SIXTY days after 1,114
the certification of an amended assessment certificate which has 1,116
been issued less than thirty SIXTY days prior to such second 1,117
Monday of August; unless prior to the expiration of said period 1,119
or extended period one of the following occurred: 1,120
(A) A final assessment certificate as to the taxpayer 1,122
represented thereby has been issued pursuant to section 5711.26 1,123
of the Revised Code; 1,124
(B) Such taxpayer in writing has waived such time 1,126
limitation and consented to the issuance of his THE TAXPAYER'S 1,127
assessment certificate after the expiration of such time 1,129
limitation, in which case the assessment certificate issued after 1,130
the expiration of such time limitation, if an amended preliminary 1,131
27
assessment certificate, shall become final thirty SIXTY days 1,132
after the mailing of the notice of such assessment if no petition 1,134
for reassessment of the assessment has been filed pursuant to 1,135
section 5711.31 of the Revised Code; 1,136
(C) A petition for reassessment of the assessment 1,138
represented thereby has been filed pursuant to section 5711.31 of 1,139
the Revised Code, in which event the filing of such petition 1,140
shall waive such time limitation and be a consent to the issuance 1,141
of the petitioner's final assessment certificate at the time, 1,142
under the circumstances, and by the authority provided by any law 1,143
relating to further administrative or judicial review of the 1,144
assessment represented thereby; provided that in the event of the 1,145
dismissal of such petition by the petitioner, the assessment 1,146
shall become final as provided in this section as though no 1,147
petition for reassessment had been filed. This section does not 1,148
deprive any taxpayer who has not received the notice prescribed 1,149
by section 5711.31 of the Revised Code at least thirty SIXTY days 1,151
prior to the expiration of such period of limitation of the right 1,152
to file such petition for reassessment. This section shall apply 1,153
to all assessments made and certified under sections 5711.01 to 1,154
5711.36, 5725.08, and 5725.16 of the Revised Code. 1,155
The assessment certificates and copies thereof mentioned in 1,157
this section shall not be open to public inspection. 1,158
Sec. 5711.28. Whenever the assessor imposes a penalty 1,167
prescribed by section 5711.27 of the Revised Code, he THE 1,168
ASSESSOR shall send notice of such penalty assessment to the 1,170
taxpayer by mail. If the notice also reflects the assessment of 1,171
any property not listed in or omitted from a return, or the 1,172
assessment of any item or class of taxable property listed in a 1,173
return by the taxpayer in excess of the value or amount thereof 1,174
as so listed, or without allowing a claim duly made for deduction 1,175
from the net book value of accounts receivable, or depreciated 1,176
book value of personal property used in business, so listed, and 1,177
the taxpayer objects to one or more of such corrections in 1,178
28
addition to the penalty, he THE TAXPAYER shall proceed as 1,180
prescribed by section 5711.31 of the Revised Code, but if no such 1,181
correction is reflected in the notice, or if the taxpayer does 1,182
not object to any such correction made, he shall proceed as 1,183
prescribed herein.
Within thirty SIXTY days after the mailing of the notice of 1,185
a penalty assessment prescribed by this section, the taxpayer may 1,186
file with the tax commissioner, in person or by certified mail, a 1,187
petition for abatement of such penalty assessment. If the 1,188
petition is filed by certified mail, the date of the United 1,189
States postmark placed on the sender's receipt by the postal 1,190
employee to whom the petition is presented shall be treated as 1,191
the date of filing. The petition shall have attached thereto and 1,192
incorporated therein by reference a true copy of the notice of 1,193
assessment complained of, BUT THE FAILURE TO ATTACH A copy of 1,194
such notice and incorporate it by reference does not invalidate 1,195
the petition. The petition shall also indicate that the 1,196
taxpayer's only objection is to the assessed penalty and the 1,197
reason for such objection. 1,198
Upon the filing of a petition for abatement of penalty, the 1,200
commissioner shall notify the treasurer of state or the auditor 1,201
and treasurer of each county having any part of the penalty 1,202
assessment entered on the tax list or duplicate. The 1,203
commissioner shall review the petition without the need for 1,204
hearing. If it appears that the failure of the taxpayer to 1,205
timely return or list was due to reasonable cause and not willful 1,206
neglect, the commissioner may abate in whole or in part the 1,207
penalty assessment. The commissioner shall transmit a 1,208
certificate of his THE COMMISSIONER'S determination to the 1,209
taxpayer, and if no appeal is taken therefrom as provided by law, 1,211
or upon the final determination of an appeal which may be taken, 1,212
he THE COMMISSIONER shall notify the treasurer of state or the 1,214
proper county auditor of such final determination. If the final 1,215
determination orders abatement of the penalty assessment, the 1,216
29
notification may be in the form of an amended assessment 1,217
certificate. Upon receipt of the notification, the treasurer of 1,218
state or county auditor shall make any corrections to his THE 1,219
TREASURER'S OR AUDITOR'S records and tax lists and duplicates 1,220
required in accordance therewith and proceed as prescribed by 1,221
section 5711.32 or 5725.22 of the Revised Code. 1,222
The decision of the commissioner shall be final with 1,224
respect to the percentage of penalty, if any, he THE COMMISSIONER 1,226
finds appropriate for the failure to return timely or list the 1,228
property, but neither his THE COMMISSIONER'S decision nor a final 1,230
judgment of the board of tax appeals or any court to which such 1,231
final determination may be appealed shall finalize the assessment 1,232
of such property. 1,233
Sec. 5711.31. Whenever the assessor assesses any property 1,242
not listed in or omitted from a return, or whenever the assessor 1,243
assesses any item or class of taxable property listed in a return 1,244
by the taxpayer in excess of the value or amount thereof as so 1,245
listed, or without allowing a claim duly made for deduction from 1,246
the net book value of accounts receivable, or depreciated book 1,247
value of personal property used in business, so listed, the 1,248
assessor shall give notice of such assessment to the taxpayer by 1,249
mail. The mailing of such notice of assessment shall be 1,250
prima-facie evidence of the receipt of the same by the person to 1,251
whom such notice is addressed. 1,252
Within thirty SIXTY days after the mailing of the notice of 1,254
assessment prescribed in this section, the party assessed may 1,255
file with the tax commissioner, in person or by certified mail, a 1,256
petition for reassessment in writing, signed by the party 1,257
assessed, or by his THE PARTY'S authorized agent having knowledge 1,259
of the facts. If the petition is filed by certified mail, the 1,260
date of the United States postmark placed on the sender's receipt 1,261
by the postal employee to whom the petition is presented shall be 1,262
treated as the date of filing. The petition shall have attached 1,263
thereto and incorporated therein by reference a true copy of the 1,264
30
notice of assessment complained of, but the failure to attach a 1,265
copy of such notice and incorporate it by reference does not 1,266
invalidate the petition. The petition also shall indicate the 1,267
objections of the party assessed, but additional objections may 1,268
be raised in writing if received prior to the date shown on the 1,269
final determination by the commissioner. 1,270
Upon receipt of a properly filed petition, the commissioner 1,272
shall notify the treasurer of state or the auditor and treasurer 1,273
of each county having any part of the assessment entered on the 1,274
tax list or duplicate. 1,275
Unless the petitioner waives a hearing, the commissioner 1,277
shall assign a time and place for the hearing on the petition and 1,278
notify the petitioner of the time and place of the hearing by 1,279
personal service or certified mail, but the commissioner may 1,280
continue the hearing from time to time if necessary. 1,281
The commissioner may make such correction to the 1,283
assessment, as he THE COMMISSIONER finds proper. The 1,284
commissioner shall serve a copy of his THE COMMISSIONER'S final 1,286
determination on the petitioner by personal service or by 1,288
certified mail, and his THE COMMISSIONER'S decision in the matter 1,289
shall be final, subject to appeal as provided in section 5717.02 1,290
of the Revised Code. The commissioner also shall transmit a copy 1,291
of his THE COMMISSIONER'S final determination to the treasurer of 1,293
state or applicable county auditor. In the absence of any 1,294
further appeal, or when a decision of the board of tax appeals or 1,295
of any court to which the decision has been appealed becomes 1,296
final, the commissioner shall notify the treasurer of state or 1,297
the proper county auditor of such final determination. If the 1,298
final determination orders correction of the assessment, the 1,299
notification may be in the form of a corrected assessment 1,300
certificate. Upon receipt of the notification, the treasurer of 1,301
state or the proper county auditor shall make any corrections to 1,302
his THE TREASURER'S OR AUDITOR'S records and tax lists and 1,303
duplicates required in accordance therewith and proceed as 1,305
31
prescribed by section 5711.32 or 5725.22 of the Revised Code. 1,306
The decision of the commissioner upon such petition for 1,308
reassessment shall be final with respect to the assessment of all 1,309
taxable property listed in the return of the taxpayer and shall 1,310
constitute to that extent the final determination of the 1,311
commissioner with respect to such assessment. Neither this 1,312
section nor a final judgment of the board of tax appeals or any 1,313
court to which such final determination may be appealed shall 1,314
preclude the subsequent assessment in the manner authorized by 1,315
law of any taxable property which such taxpayer failed to list in 1,316
such return, or which the assessor has not theretofore assessed. 1,317
As used in this section, "taxpayer" includes financial 1,319
institutions, dealers in intangibles, and domestic insurance 1,320
companies as defined in section 5725.01 of the Revised Code. 1,321
Sec. 5717.01. An appeal from a decision of a county board 1,330
of revision may be taken to the board of tax appeals within 1,331
thirty days after notice of the decision of the county board of 1,332
revision is mailed as provided in section 5715.20 of the Revised 1,333
Code. Such an appeal may be taken by the county auditor, the tax 1,334
commissioner, or any board, legislative authority, public 1,335
official, or taxpayer authorized by section 5715.19 of the 1,336
Revised Code to file complaints against valuations or assessments 1,337
with the auditor. Such appeal shall be taken by the filing of a 1,338
notice of appeal, either in person or by certified mail, EXPRESS 1,339
MAIL, OR AUTHORIZED DELIVERY SERVICE, with the board of tax 1,341
appeals and with the county board of revision. If notice of 1,342
appeal is filed by certified mail, EXPRESS MAIL, OR AUTHORIZED
DELIVERY SERVICE AS PROVIDED IN SECTION 5703.056 OF THE REVISED 1,344
CODE, the date of the United States postmark placed on the 1,345
sender's receipt by the postal employee to whom the notice of 1,346
appeal is presented SERVICE OR THE DATE OF RECEIPT RECORDED BY 1,347
THE AUTHORIZED DELIVERY SERVICE shall be treated as the date of 1,348
filing. Upon receipt of such notice of appeal such county board 1,349
of revision shall by certified mail notify all persons thereof 1,350
32
who were parties to the proceeding before such county board of 1,351
revision, and shall file proof of such notice with the board of 1,352
tax appeals. The county board of revision shall thereupon 1,353
certify to the board of tax appeals a transcript of the record of 1,354
the proceedings of the county board of revision pertaining to the 1,355
original complaint, and all evidence offered in connection 1,356
therewith. Such appeal may be heard by the board of tax appeals 1,357
at its offices in Columbus or in the county where the property is 1,358
listed for taxation, or the board of tax appeals may cause its 1,359
examiners to conduct such hearing and to report to it their 1,360
findings for affirmation or rejection. 1,361
The board of tax appeals may order the appeal to be heard 1,363
on the record and the evidence certified to it by the county 1,364
board of revision, or it may order the hearing of additional 1,365
evidence, and it may make such investigation concerning the 1,366
appeal as it deems proper. 1,367
Sec. 5717.02. Except as otherwise provided by law, appeals 1,376
from final determinations by the tax commissioner of any 1,377
preliminary, amended, or final tax assessments, reassessments, 1,378
valuations, determinations, findings, computations, or orders 1,379
made by the commissioner may be taken to the board of tax appeals 1,380
by the taxpayer, by the person to whom notice of the tax 1,381
assessment, reassessment, valuation, determination, finding, 1,382
computation, or order by the commissioner is required by law to 1,383
be given, by the director of budget and management if the 1,384
revenues affected by such decision would accrue primarily to the 1,385
state treasury, or by the county auditors of the counties to the 1,386
undivided general tax funds of which the revenues affected by 1,387
such decision would primarily accrue. Appeals from the 1,388
redetermination by the director of development under division (B) 1,389
of section 5709.64 or division (A) of section 5709.66 of the 1,390
Revised Code may be taken to the board of tax appeals by the 1,392
enterprise to which notice of the redetermination is required by 1,393
law to be given. Appeals from a decision of the tax commissioner 1,394
33
concerning an application for a property tax exemption may be 1,395
taken to the board of tax appeals by a school district that filed 1,396
a statement concerning such application under division (C) of 1,397
section 5715.27 of the Revised Code. 1,398
Such appeals shall be taken by the filing of a notice of 1,400
appeal with the board, and with the tax commissioner if his THE 1,401
TAX COMMISSIONER'S action is the subject of the appeal or with 1,402
the director of development if his THE DIRECTOR'S action is the 1,403
subject of the appeal, within thirty SIXTY days after SERVICE OF 1,404
THE notice of the tax assessment, reassessment, valuation, 1,407
determination, finding, computation, or order by the commissioner 1,408
or redetermination by the director has been given or otherwise 1,409
evidenced as required by law AS PROVIDED IN SECTION 5703.37 OF 1,410
THE REVISED CODE. The notice of such appeal may be filed in 1,411
person or by certified mail, EXPRESS MAIL, OR AUTHORIZED DELIVERY 1,412
SERVICE. If the notice of such appeal is filed by certified 1,413
mail, EXPRESS MAIL, OR AUTHORIZED DELIVERY SERVICE AS PROVIDED IN 1,415
SECTION 5703.056 OF THE REVISED CODE, the date of the United 1,416
States postmark placed on the sender's receipt by the postal 1,417
employee to whom the notice of appeal is presented SERVICE OF THE 1,418
DATE OF RECEIPT RECORDED BY THE AUTHORIZED DELIVERY SERVICE shall
be treated as the date of filing. The notice of appeal shall 1,419
have attached thereto and incorporated therein by reference a 1,420
true copy of the notice sent by the commissioner or director to 1,421
the taxpayer or enterprise of the final determination or 1,422
redetermination complained of, and shall also specify the errors 1,423
therein complained of, but failure to attach a copy of such 1,424
notice and incorporate it by reference in the notice of appeal 1,425
does not invalidate the appeal. 1,426
Upon the filing of a notice of appeal, the tax commissioner 1,428
or the director, as appropriate, shall certify to the board a 1,429
transcript of the record of the proceedings before him THE 1,430
COMMISSIONER OR DIRECTOR, together with all evidence considered 1,431
by him THE COMMISSIONER OR DIRECTOR in connection therewith. 1,432
34
Such appeals or applications may be heard by the board at its 1,433
office in Columbus or in the county where the appellant resides, 1,434
or it may cause its examiners to conduct such hearings and to 1,435
report to it their findings for affirmation or rejection. The 1,436
board may order the appeal to be heard upon the record and the 1,437
evidence certified to it by the commissioner or director, but 1,438
upon the application of any interested party the board shall 1,439
order the hearing of additional evidence, and it may make such 1,440
investigation concerning the appeal as it considers proper. 1,441
Sec. 5727.11. (A) Except as otherwise provided in this 1,450
section, the true value of all taxable property required by 1,452
division (A)(2) or (3) of section 5727.06 of the Revised Code to
be assessed by the tax commissioner shall be determined by a 1,453
method of valuation using cost as capitalized on the public 1,454
utility's books and records less composite annual allowances as 1,455
prescribed by the commissioner. If the commissioner finds that 1,456
application of this method will not result in the determination 1,457
of true value of the public utility's taxable property, the 1,458
commissioner may use another method of valuation. 1,459
(B) The true value of current gas stored underground is 1,461
the cost of that gas shown on the books and records of the public 1,462
utility on the thirty-first day of December of the preceding 1,463
year. 1,464
(C) The true value of noncurrent gas stored underground is 1,466
thirty-five per cent of the cost of that gas shown on the books 1,467
and records of the public utility on the thirty-first day of 1,468
December of the preceding year. 1,469
(D)(1) Except as provided in division (D)(2) of this 1,472
section, the true value of the production equipment of an 1,473
electric company and the true value of all taxable property of a 1,474
rural electric company is the equipment's or property's cost as 1,475
capitalized on the company's books and records less fifty per 1,476
cent of that cost as an allowance for depreciation and 1,477
obsolescence. 1,478
35
(2) The true value of the production equipment of an 1,480
electric company or rural electric company purchased, 1,481
transferred, or placed into service after the effective date of 1,483
this amendment is the purchase price of the equipment as 1,484
capitalized on the company's books and records less composite 1,485
annual allowances as prescribed by the tax commissioner. 1,486
(E) The true value of taxable property described in 1,488
division (A)(2) or (3) of section 5727.06 of the Revised Code 1,489
shall not include the allowance for funds used during 1,490
construction or interest during construction that has been 1,491
capitalized on the public utility's books and records as part of 1,493
the total cost of the taxable property. This division shall not 1,494
apply to the taxable property of an electric company or a rural 1,495
electric company, excluding transmission and distribution 1,496
property, first placed into service after December 31, 2000, or 1,497
to the taxable property a person purchases, which includes 1,498
transfers, if that property was used in business by the seller
prior to the purchase. 1,499
(F) The true value of watercraft owned or operated by a 1,501
water transportation company shall be determined by multiplying 1,503
the true value of the watercraft as determined under division (A) 1,504
of this section by a fraction, the numerator of which is the 1,506
number of revenue-earning miles traveled by the watercraft in the
waters of this state and the denominator of which is the number 1,507
of revenue-earning miles traveled by the watercraft in all 1,508
waters.
(G) The cost of property subject to a sale and leaseback 1,510
transaction is the cost of the property as capitalized on the 1,511
books and records of the public utility owning the property 1,513
immediately prior to the sale and leaseback transaction.
(H) The cost as capitalized on the books and records of a 1,515
public utility includes amounts capitalized that represent 1,516
regulatory assets, if such amounts previously were included on 1,517
the company's books and records as capitalized costs of taxable 1,518
36
personal property.
(I) ANY CHANGE IN THE COMPOSITE ANNUAL ALLOWANCES AS 1,520
PRESCRIBED BY THE COMMISSIONER ON A PROSPECTIVE BASIS SHALL NOT 1,521
BE ADMISSIBLE IN ANY JUDICIAL OR ADMINISTRATIVE ACTION OR 1,522
PROCEEDING AS EVIDENCE OF VALUE WITH REGARD TO PRIOR YEARS' 1,523
TAXES. INFORMATION ABOUT THE BUSINESS, PROPERTY, OR TRANSACTIONS 1,524
OF ANY TAXPAYER OBTAINED BY THE COMMISSIONER FOR THE PURPOSE OF
ADOPTING OR MODIFYING THE COMPOSITE ANNUAL ALLOWANCES SHALL NOT 1,525
BE SUBJECT TO DISCOVERY OR DISCLOSURE. 1,526
Sec. 5727.26. (A) The tax commissioner may make an 1,535
assessment, based on any information in the commissioner's 1,536
possession, against any natural gas company or combined electric 1,537
and gas company that fails to file a return or pay any tax, 1,538
interest, or additional charge as required by sections 5727.24 to 1,539
5727.29 of the Revised Code. The commissioner shall give the 1,540
company assessed written notice of the assessment by personal 1,541
service or certified mail AS PROVIDED IN SECTION 5703.37 OF THE 1,542
REVISED CODE. A penalty of up to fifteen per cent may be added 1,543
to all amounts assessed under this section. The tax commissioner 1,544
may adopt rules providing for the IMPOSITION AND remission of the 1,545
penalty.
(B) If a party to whom the notice of assessment is 1,547
directed objects to the assessment, the party may file a petition 1,548
for reassessment with the tax commissioner. The petition must be 1,549
made in writing, signed by the party or the party's authorized 1,550
agent having knowledge of the facts, and filed with the 1,551
commissioner, either personally or by certified mail, within 1,552
thirty SIXTY days after service of the notice of assessment. The 1,554
petition shall indicate the objections of the company assessed, 1,555
but additional objections may be raised in writing if received 1,556
prior to the date shown on the final determination of the 1,557
commissioner. Upon receipt of a properly filed petition, the 1,558
commissioner shall notify the treasurer of state. 1,559
Unless the petitioner waives a hearing, the commissioner 1,561
37
shall grant the petitioner a hearing on the petition, assign a 1,562
time and place for the hearing, and notify the petitioner of the 1,563
time and place of the hearing, by personal service or certified 1,564
mail AS PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. The 1,565
commissioner may continue the hearing from time to time, if 1,566
necessary.
If the party to whom the notice of assessment is directed 1,568
does not file a petition for reassessment, the assessment is 1,569
final and the amount of the assessment is due and payable from 1,570
the company assessed to the treasurer of state. 1,571
(C) The tax commissioner may make any correction to the 1,573
assessment that the commissioner finds proper and shall issue a 1,574
final determination thereon. The commissioner shall serve a copy 1,575
of the final determination on the petitioner either by personal 1,576
service or certified mail AS PROVIDED IN SECTION 5703.37 OF THE 1,577
REVISED CODE, and the commissioner's decision in the matter is 1,579
final, subject to appeal under section 5717.02 of the Revised 1,580
Code. The commissioner also shall transmit a copy of the final 1,581
determination to the treasurer of state. Only objections decided 1,583
on the merits by the board of tax appeals or a court shall be
given collateral estoppel or res judicata effect in considering 1,585
an application for refund of an amount paid pursuant to the 1,586
assessment.
(D) After an assessment becomes final, if any portion of 1,588
the assessment, including accrued interest, remains unpaid, a 1,589
certified copy of the tax commissioner's entry making the 1,590
assessment final may be filed in the office of the clerk of the 1,591
court of common pleas in the county in which the natural gas 1,592
company's or combined electric and gas company's principal place 1,593
of business is located, or in the office of the clerk of court of 1,594
common pleas of Franklin county. 1,595
The clerk, immediately on the filing of the entry, must 1,597
enter judgment for the state against the company assessed in the 1,598
amount shown on the entry. The judgment may be filed by the 1,599
38
clerk in a loose-leaf book entitled, "special judgments for the 1,600
public utility excise tax on natural gas and combined electric 1,601
and gas companies," and shall have the same effect as other 1,602
judgments. Execution shall issue upon the judgment at the 1,603
request of the tax commissioner, and all laws applicable to sales 1,604
on execution shall apply to sales made under the judgment. 1,605
The portion of the assessment not paid within thirty SIXTY 1,607
days after the day the assessment was issued shall bear interest 1,608
at the rate per annum prescribed by section 5703.47 of the 1,609
Revised Code from the day the tax commissioner issues the 1,610
assessment until it is paid. Interest shall be paid in the same 1,611
manner as the tax and may be collected by the issuance of an 1,613
assessment under this section.
(E) If the tax commissioner believes that collection of 1,615
the tax will be jeopardized unless proceedings to collect or 1,616
secure collection of the tax are instituted without delay, the 1,617
commissioner may issue a jeopardy assessment against the person 1,618
liable for the tax. On issuance of the jeopardy assessment, the 1,619
commissioner immediately shall file an entry with the clerk of 1,620
the court of common pleas in the manner prescribed by division 1,621
(D) of this section. Notice of the jeopardy assessment shall be 1,622
served on the party assessed or the party's legal representative 1,624
AS PROVIDED IN SECTION 5703.37 OF THE REVISED CODE within five 1,625
days of the filing of the entry with the clerk. The total amount 1,626
assessed is immediately due and payable, unless the person
assessed files a petition for reassessment in accordance with 1,627
division (B) of this section and provides security in a form 1,628
satisfactory to the commissioner and in an amount sufficient to 1,629
satisfy the unpaid balance of the assessment. Full or partial 1,631
payment of the assessment does not prejudice the commissioner's 1,632
consideration of the petition for reassessment. 1,633
(F) All interest collected by the tax commissioner under 1,635
this section shall be paid to the treasurer of state, and when 1,636
paid shall be considered revenue arising from the tax imposed by 1,637
39
section 5727.24 of the Revised Code. 1,638
(G) No assessment shall be made or issued against a 1,640
natural gas company or combined electric and gas company for the 1,641
tax imposed by section 5727.24 of the Revised Code more than four 1,642
years after the return date for the period in which the tax was 1,643
reported, or more than four years after the return for the period 1,644
was filed, whichever is later. 1,645
Sec. 5727.47. A copy of each assessment certified pursuant 1,654
to section 5727.23 or 5727.38 of the Revised Code shall be mailed 1,656
to the public utility, and its mailing shall be prima-facie 1,657
evidence of its receipt by the public utility to which it is 1,658
addressed. If a public utility objects to any assessment 1,659
certified to it pursuant to such sections, it may file a petition 1,660
for reassessment with the tax commissioner. The petition must be 1,661
made in writing, signed by the authorized agent of the utility 1,662
having knowledge of the facts, and filed with the commissioner, 1,663
in person or by certified mail, within thirty SIXTY days from the 1,665
date that the assessment was mailed. If the petition is filed by 1,666
certified mail, the date of the United States postmark placed on 1,667
the sender's receipt by the postal employee to whom the petition 1,668
is presented shall be treated as the date of filing. A true copy 1,669
of the assessment objected to shall be attached to the petition 1,670
and shall be incorporated by reference into the petition, but the 1,671
failure to attach a copy of the assessment and incorporate it by 1,672
reference does not invalidate the petition. The petition also 1,673
shall indicate the utility's objections, but additional 1,674
objections may be raised in writing if received prior to the date 1,675
shown on the final determination by the commissioner.
Notwithstanding the fact that a petition has been filed, 1,677
the tax with respect to the assessment objected to shall be paid 1,678
as required by law. The acceptance of the tax payment by the 1,679
treasurer of state or any county treasurer shall not prejudice 1,680
any claim for taxes on final determination by the commissioner or 1,681
final decision by the board of tax appeals or any court. 1,682
40
Upon receipt of a properly filed petition, the commissioner 1,684
shall notify the treasurer of state or the auditor of each county 1,685
to which the assessment objected to has been certified. 1,686
Unless the petitioner waives a hearing, the commissioner 1,688
shall assign a time and place for the hearing on the petition and 1,689
notify the petitioner of the time and place of the hearing by 1,690
personal service or certified mail, but the commissioner may 1,691
continue the hearing from time to time if necessary. 1,692
The commissioner may make such correction to the assessment 1,694
as the commissioner finds proper. The commissioner shall serve a 1,696
copy of the commissioner's final determination on the petitioner 1,697
by personal service or certified mail, and the commissioner's 1,698
decision in the matter shall be final, subject to appeal as 1,700
provided in section 5717.02 of the Revised Code. The 1,701
commissioner also shall transmit a copy of the final 1,702
determination to the treasurer of state or applicable county 1,703
auditor. In the absence of any further appeal, or when a 1,704
decision of the board of tax appeals or of any court to which the 1,705
decision has been appealed becomes final, the commissioner shall 1,706
notify the public utility and, as appropriate, the treasurer of 1,707
state who shall proceed under section 5727.42 of the Revised 1,708
Code, or the applicable county auditor who shall proceed under 1,709
section 5727.471 of the Revised Code. The notification is not 1,710
subject to further appeal. 1,711
Sec. 5727.89. (A) The tax commissioner may make an 1,721
assessment, based on any information in the commissioner's
possession, against any electric distribution company, 1,722
self-assessing purchaser, or qualified end user that fails to 1,725
file a return or pay any tax, interest, or additional charge as 1,726
required by sections 5727.80 to 5727.95 of the Revised Code. 1,727
When information in the possession of the tax commissioner 1,729
indicates that a person liable for the tax imposed by section 1,731
5727.81 of the Revised Code has not paid the full amount of tax 1,734
due, the commissioner may audit a representative sample of the 1,735
41
person's business and may issue an assessment based on the audit. 1,736
The commissioner shall give the person assessed written notice of 1,737
the assessment by personal service or certified mail. 1,738
The tax commissioner may issue an assessment for which the 1,740
tax imposed by section 5727.81 of the Revised Code was due and 1,741
unpaid on the date the person was informed by an agent of the tax 1,743
commissioner of an investigation or audit of the person. Any 1,744
payment of the tax for the period covered by the assessment, 1,745
after the person is so informed, shall be credited against the 1,746
assessment. 1,747
A penalty of fifteen per cent shall MAY be added to all 1,749
amounts assessed under this section. The commissioner may adopt 1,750
rules providing for the IMPOSITION AND remission of penalties. 1,751
(B) Unless the party assessed files with the tax 1,754
commissioner within thirty SIXTY days after service of the notice 1,756
of assessment, either personally or by certified mail, a written 1,757
petition for reassessment signed by the party assessed or the 1,758
party's authorized agent having knowledge of the facts, the 1,759
assessment is final and the amount of the assessment is due and 1,760
payable from the party assessed to the treasurer of state. The 1,761
petition shall indicate the objections of the party assessed, but 1,762
additional objections may be raised in writing prior to the date 1,763
shown on the final determination of the tax commissioner. The 1,764
commissioner shall grant the petitioner a hearing on the 1,765
petition, unless waived by the petitioner. 1,766
(C) The commissioner may make any correction to the 1,769
assessment that the commissioner finds proper and shall issue a 1,770
final determination thereon. The commissioner shall serve a copy 1,771
of the final determination on the petitioner either by personal 1,772
service or by certified mail AS PROVIDED IN SECTION 5703.37 OF 1,773
THE REVISED CODE, and the commissioner's decision in the matter 1,774
is final, subject to appeal under section 5717.02 of the Revised 1,776
Code.
(D) After an assessment becomes final, if any portion of 1,779
42
the assessment, including accrued interest, remains unpaid, a 1,780
certified copy of the commissioner's entry making the assessment 1,781
final may be filed in the office of the clerk of the court of 1,782
common pleas in the county in which the party assessed resides or 1,783
in which the party's business is conducted. If the party 1,784
assessed maintains no place of business in this state and is not 1,785
a resident of this state, the certified copy of the entry may be 1,787
filed in the office of the clerk of the court of common pleas of 1,788
Franklin county. 1,789
The clerk, immediately upon the filing of the entry, shall 1,791
enter a judgment for the state against the person assessed in the 1,793
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for the 1,794
kilowatt-hour tax," and shall have the same effect as other 1,795
judgments. Execution shall issue upon the judgment at the 1,796
request of the tax commissioner, and all laws applicable to sales 1,797
on execution shall apply to sales made under the judgment. 1,798
The portion of the assessment not paid within thirty SIXTY 1,800
days after the day the assessment was issued shall bear interest 1,801
at the rate per annum prescribed by section 5703.47 of the 1,802
Revised Code from the day the tax commissioner issues the 1,805
assessment until the day the assessment is paid. Interest shall 1,806
be paid in the same manner as the tax and may be collected by the 1,807
issuance of an assessment under this section. 1,808
(E) If the tax commissioner believes that collection of 1,811
the tax imposed by section 5727.81 of the Revised Code will be 1,813
jeopardized unless proceedings to collect or secure collection of 1,814
the tax are instituted without delay, the commissioner may issue 1,815
a jeopardy assessment against the electric distribution company, 1,816
self-assessing purchaser, or qualified end user liable for the 1,819
tax. Upon issuance of the jeopardy assessment, the commissioner 1,820
immediately shall file an entry with the clerk of the court of 1,821
common pleas in the manner prescribed by division (D) of this 1,822
section. Notice of the jeopardy assessment shall be served on 1,823
43
the party assessed or the party's legal representative within 1,824
five days of the filing of the entry with the clerk. The total 1,825
amount assessed is immediately due and payable, unless the party 1,826
assessed files a petition for reassessment in accordance with 1,827
division (B) of this section and provides security in a form 1,829
satisfactory to the commissioner and in an amount sufficient to 1,830
satisfy the unpaid balance of the assessment. Full or partial 1,831
payment of the assessment does not prejudice the commissioner's 1,832
consideration of the petition for reassessment. 1,833
(F) All money collected by the tax commissioner under this 1,836
section shall be paid to the treasurer of state, and when paid 1,837
shall be considered as revenue arising from the tax imposed by 1,838
section 5727.81 of the Revised Code. 1,839
Sec. 5728.01. As used in sections 5728.02 to 5728.14, 1,848
inclusive, of the Revised Code: 1,849
(A) "Motor vehicle" means everything on wheels which THAT 1,851
is self-propelled, other than by muscular power or power 1,852
collected from electric trolley wires and other than vehicles or 1,853
machinery not designed for or employed in general highway 1,854
transportation, used to transport or propel property over a 1,855
public highway.
(B) "Commercial car" means any motor vehicle used for 1,857
transporting property, wholly on its own structure on a public 1,858
highway. 1,859
(C) "Commercial tractor" means any motor vehicle designed 1,861
and used to propel or draw a trailer or semi-trailer or both on a 1,862
public highway without having any provision for carrying loads 1,863
independently of such trailer or semi-trailer. 1,864
(D) "Trailer" means everything on wheels which THAT is not 1,866
self-propelled, except vehicles or machinery not designed for or 1,867
employed in general highway transportation and except vehicles 1,868
whose total weight excluding load is less than three thousand 1,869
pounds, used for carrying property wholly on its own structure 1,870
and for being drawn by a motor vehicle on a public highway, 1,871
44
including any such vehicle when formed by or operated as a 1,872
combination of a semi-trailer and a vehicle of the dolly type 1,873
such as that commonly known as a trailer dolly. "Trailer" does 1,874
not include manufactured homes as defined in division (C)(4) of 1,876
section 3781.06 of the Revised Code or mobile homes as defined in 1,878
division (O) of section 4501.01 of the Revised Code.
(E) "Semi-trailer" means everything on wheels which THAT 1,880
is not self-propelled, except vehicles or machinery not designed 1,881
for or employed in general highway transportation and except 1,882
vehicles whose total weight excluding load is less than three 1,883
thousand pounds, designed and used for carrying property on a 1,884
public highway when being propelled or drawn by a commercial 1,885
tractor when part of its own weight or the weight of its load, or 1,886
both, rest upon and is carried by a commercial tractor. 1,887
(F) "Commercial tandem" means any commercial car and 1,889
trailer or any commercial tractor, semi-trailer, and trailer when 1,890
fastened together and used as one unit. 1,891
(G) "Commercial tractor combination" means any commercial 1,893
tractor and semi-trailer when fastened together and used as one 1,894
unit. 1,895
(H) "Axle" means two or more load carrying wheels mounted 1,897
in a single transverse vertical plane. 1,898
(I) "Public highway" means any highway, road, or street 1,900
dedicated to public use except a highway under the control and 1,901
jurisdiction of the Ohio turnpike commission created by the 1,902
provisions of section 5537.02 of the Revised Code. 1,903
Sec. 5728.02. (A) Except as provided in section 5728.03 1,912
of the Revised Code, every person who is liable for the tax 1,913
imposed by section 5728.06 of the Revised Code on the operation 1,914
of a commercial car with three or more axles WHEN OPERATED ALONE 1,915
OR AS PART OF A COMMERCIAL TANDEM, a commercial car WITH TWO 1,916
AXLES that is to be operated as part of a commercial tandem WITH 1,917
A GROSS VEHICLE WEIGHT OR A REGISTERED GROSS VEHICLE WEIGHT 1,918
EXCEEDING TWENTY-SIX THOUSAND POUNDS, or a commercial tractor 1,920
45
that is, or is to be, operated or driven upon a public highway 1,921
shall cause to be filed annually with the tax commissioner a 1,922
written application for a highway use permit on blank forms to be 1,923
furnished by the commissioner for that purpose.
Each application for a highway use permit for a commercial 1,925
car or a commercial tractor shall contain any information the tax 1,926
commissioner prescribes. 1,927
The application shall be accompanied by a fee of two 1,929
dollars. 1,930
(B) Upon receipt of the application and fee, the 1,932
commissioner shall issue to the person making the application a 1,933
highway use permit and any identification device that he THE 1,934
COMMISSIONER considers necessary for the proper administration of 1,935
this chapter. The permit and the identification device shall be 1,936
of a design and contain any information the commissioner 1,937
considers necessary. The identification device shall be 1,938
displayed on the commercial car or commercial tractor for which 1,939
it was issued at all times in the manner the commissioner 1,940
prescribes. The highway use permits and the identification 1,941
device shall not be transferable. In case of the loss of a 1,942
highway use permit or identification device, the commissioner 1,943
shall issue a duplicate of the permit or device upon payment of a 1,944
fee of one dollar.
The highway use permit shall be valid until it expires or 1,946
is suspended or surrendered. All moneys collected pursuant to 1,947
the provisions of this section shall be deposited in the state 1,948
treasury in accordance with the provisions of section 5728.08 of 1,949
the Revised Code. 1,950
Sec. 5728.03. (A) In lieu of filing an application for a 1,960
AN annual highway use permit under section 5728.02 of the Revised 1,961
Code and in lieu of filing returns under section 5728.08 of the 1,962
Revised Code, a person who is the owner of a commercial car with 1,963
three or more axles WHEN OPERATED ALONE OR AS PART OF A 1,964
COMMERCIAL TANDEM, a commercial car WITH TWO AXLES that is to be 1,965
46
operated as part of a commercial tandem WITH A GROSS VEHICLE 1,966
WEIGHT OR A REGISTERED GROSS VEHICLE WEIGHT EXCEEDING TWENTY-SIX 1,967
THOUSAND POUNDS, or a commercial tractor that is, or is to be, 1,969
operated or driven upon a public highway, may file an application 1,970
with the tax commissioner for a single-trip highway use permit. 1,971
The application shall be accompanied by a fee of two dollars and, 1,972
based on rules adopted by the tax commissioner, AND SHALL INCLUDE 1,973
an amount estimated to be substantially equivalent to the highway 1,974
use and motor vehicle fuel use tax liability that the applicant 1,975
will incur by driving on the highways of this state during the 1,976
period covered by the single-trip permit. The amount so 1,977
estimated shall be considered to be the highway use tax and motor 1,978
vehicle fuel use tax liability so incurred. 1,979
The commissioner may authorize independent permit services 1,981
or other persons to issue single-trip highway use permits. 1,982
(B) The commissioner shall adopt rules establishing all of 1,984
the following: 1,985
(1) Procedures for the issuance of single-trip permits; 1,987
(2) The length of time the permits are effective; 1,989
(3) Requirements that independent permit services or other 1,991
persons must meet to be authorized to issue single-trip highway 1,992
use permits and procedures for obtaining that authorization; 1,993
(4) Estimates of the amount substantially equivalent to 1,995
the highway use and motor vehicle fuel use tax liability that an 1,996
applicant will incur by driving on the highways of this state 1,997
during the period covered by the permit. 1,998
(C) No person whose highway use permit issued under 2,000
section 5728.02 of the Revised Code is currently under suspension 2,001
in accordance with section 5728.11 of the Revised Code shall be 2,002
issued a single-trip highway use permit under this section. 2,003
(D) All moneys collected pursuant to this section shall be 2,005
deposited in the state treasury in accordance with section 2,006
5728.08 of the Revised Code. 2,007
Sec. 5728.04. It shall be unlawful, on and after September 2,016
47
30, 1955, for any person to operate a commercial car with three 2,018
or more axles WHEN OPERATED ALONE OR AS PART OF A COMMERCIAL 2,019
TANDEM, a commercial car WITH TWO AXLES THAT IS TO BE OPERATED as 2,020
part of a commercial tandem WITH A GROSS VEHICLE WEIGHT OR A 2,021
REGISTERED GROSS VEHICLE WEIGHT EXCEEDING TWENTY-SIX THOUSAND 2,022
POUNDS, or a commercial tractor WHEN OPERATED ALONE OR as part of 2,023
a commercial tractor combination or commercial tandem on a public 2,025
highway without a valid highway use permit for such commercial 2,026
car or commercial tractor.
The judge or magistrate of any court finding any person 2,028
guilty of unlawfully operating a commercial car or commercial 2,029
tractor as provided for in this section shall immediately notify 2,030
the tax commissioner of such violation and shall transmit to the 2,031
commissioner the name and the permanent address of the owner of 2,032
the commercial car or commercial tractor operated in violation of
this section, the registration number, the state of registration, 2,034
and the certificate of title number of the commercial car or 2,035
commercial tractor.
Sec. 5728.06. For the purpose of providing revenues to pay 2,044
the cost of administering and enforcing the laws pertaining to 2,045
the levy and collection of the tax imposed by this section, to 2,046
provide funds to pay the state's share of the cost of 2,047
constructing or reconstructing highways and eliminating railway 2,048
grade crossings on the major thoroughfares of the state highway 2,049
system and urban extensions thereof, and to pay the interest, 2,050
principal, and charges on highway obligations issued pursuant to 2,051
Section 2i of Article VIII, Ohio Constitution, and sections 2,052
5528.30 and 5528.31 of the Revised Code, there is hereby levied a 2,053
highway use tax upon each commercial car with three or more axles 2,055
WHEN OPERATED ALONE OR AS PART OF A COMMERCIAL TANDEM, each
commercial car WITH TWO AXLES used as a part of a commercial 2,056
tandem WITH A GROSS VEHICLE WEIGHT OR A REGISTERED GROSS VEHICLE 2,057
WEIGHT EXCEEDING TWENTY-SIX THOUSAND POUNDS, and each commercial 2,059
tractor OPERATED ALONE OR used as part of a commercial tractor 2,060
48
combination or commercial tandem. Except as provided in section 2,061
5728.05 of the Revised Code, the rates shall be as follows: 2,062
(A) One-half cent for each mile traveled on a public 2,064
highway in Ohio by each commercial car with three or more axles; 2,065
(B) One cent for each mile traveled on a public highway in 2,067
Ohio by a commercial tandem with three axles or a commercial 2,068
tractor operated ALONE OR as part of a commercial tractor 2,069
combination with three axles; 2,071
(C) One and one-half cents for each mile traveled on a 2,073
public highway in Ohio by a commercial tractor operated as a part 2,074
of a commercial tractor combination with four axles; 2,075
(D) Two cents for each mile traveled on a public highway 2,077
in Ohio by a commercial tractor operated as part of a commercial 2,078
tractor combination with a total of five or more axles; 2,079
(E) Two and one-half cents for each mile traveled on a 2,081
public highway in Ohio by each commercial car or commercial 2,082
tractor operated as part of a commercial tandem with four or more 2,083
axles. 2,084
The owner of each commercial car and commercial tractor 2,086
subject to sections 5728.01 to 5728.14 of the Revised Code shall 2,087
be liable for the payment of the full amount of the taxes levied 2,088
herein. 2,089
An owner who is a person regularly engaged, for 2,091
compensation, in the business of leasing or renting motor 2,092
vehicles without furnishing drivers may designate that the lessee 2,093
of a motor vehicle leased for a period of thirty days or more 2,094
shall report and pay the tax incurred during the duration of the 2,095
lease. An owner who is an independent contractor that furnishes 2,096
both the driver and motor vehicle, may designate that the person 2,097
so furnished with the driver and motor vehicle for a period of 2,098
thirty days or more shall report and pay the tax incurred during 2,099
that period. An independent contractor that is not an owner, but 2,100
that furnishes both the driver and motor vehicle and that has 2,101
been designated by the owner of the motor vehicle to report and 2,102
49
pay the tax, may designate that the person so furnished with 2,103
driver and motor vehicle for a period of thirty days or more 2,104
shall report and pay the tax incurred during that period. 2,105
Sec. 5728.08. Except as provided in section 5728.03 of the 2,114
Revised Code and except as otherwise provided in this section, 2,115
whoever is liable for the payment of the tax levied by section 2,117
5728.06 of the Revised Code, on or before the last day of each 2,118
January, April, July, and October, shall file with the treasurer 2,119
of state, on forms prescribed by the tax commissioner, a highway 2,120
use tax return and make payment of the full amount of the tax due 2,121
for the operation of each commercial car and commercial tractor 2,122
for the next preceding three calendar months. If the commercial 2,123
cars or commercial tractors are farm trucks and the amount of 2,124
motor fuel used to operate the trucks during the next preceding
twelve calendar months was less than fifteen thousand gallons, 2,125
the highway use tax return shall be filed and the full amount of 2,126
tax due paid on or before the last day of each July for the next 2,128
preceding twelve calendar months. If the commercial cars or 2,129
commercial tractors are farm trucks and the amount of motor fuel 2,130
used to operate the trucks during the next preceding twelve
calendar months was fifteen thousand gallons or more, the highway 2,131
use tax return shall be filed and the full amount of the tax due 2,132
paid either on or before the last day of each July for the next 2,133
preceding twelve calendar months, or on or before the last day of 2,134
each January, April, July, and October for the next preceding 2,135
three calendar months, at the option of the person liable for 2,136
payment of the tax. IF THE COMMERCIAL CARS OR COMMERCIAL 2,137
TRACTORS ARE NOT FARM TRUCKS, AND IF, IN THE ESTIMATION OF THE 2,138
TAX COMMISSIONER, THE AMOUNT OF THE TAX DUE DOES NOT WARRANT
QUARTERLY FILING, THE COMMISSIONER MAY AUTHORIZE THE FILING OF 2,139
THE HIGHWAY USE TAX RETURN AND PAYMENT OF THE FULL AMOUNT DUE ON 2,140
OR BEFORE THE LAST DAY OF EACH JULY FOR THE NEXT PRECEDING TWELVE 2,141
MONTHS.
Immediately upon the receipt of a highway use tax return, 2,143
50
the treasurer of state shall mark on the return the date it was 2,144
received by the treasurer of state and the amount of tax payment 2,146
accompanying the return and shall transmit the return to the tax 2,147
commissioner.
The treasurer of state shall place to the credit of the tax 2,149
refund fund created by section 5703.052 of the Revised Code, out 2,150
of receipts from the taxes levied by section 5728.06 of the 2,151
Revised Code, amounts equal to the refund certified by the tax 2,152
commissioner pursuant to section 5728.061 of the Revised Code. 2,153
Receipts from the tax shall be used by the tax commissioner to 2,154
defray expenses incurred by the department of taxation in 2,155
administering sections 5728.01 to 5728.14 of the Revised Code. 2,156
All moneys received in the state treasury from taxes levied 2,158
by section 5728.06 of the Revised Code and fees assessed under 2,159
sections 5728.02 and 5728.03 of the Revised Code which are not 2,160
required to be placed to the credit of the tax refund fund as 2,161
provided by this section shall, during each calendar year, be 2,162
credited to the highway improvement bond retirement fund created 2,163
by section 5528.12 of the Revised Code until the commissioners of 2,164
the sinking fund certify to the treasurer of state, as required 2,165
by section 5528.17 of the Revised Code, that there are sufficient 2,166
moneys to the credit of the highway improvement bond retirement 2,167
fund to meet in full all payments of interest, principal, and 2,168
charges for the retirement of bonds and other obligations issued 2,169
pursuant to Section 2g of Article VIII, Ohio Constitution, and 2,170
sections 5528.10 and 5528.11 of the Revised Code due and payable 2,171
during the current calendar year and during the next succeeding 2,172
calendar year. From the date of the receipt of the certification 2,173
required by section 5528.17 of the Revised Code by the treasurer 2,174
of state until the thirty-first day of December of the calendar 2,175
year in which the certification is made, all moneys received in 2,176
the state treasury from taxes levied under section 5728.06 of the 2,177
Revised Code and fees assessed under sections 5728.02 and 5728.03 2,178
of the Revised Code which are not required to be placed to the 2,179
51
credit of the tax refund fund as provided by this section shall 2,180
be credited to the highway obligations bond retirement fund 2,181
created by section 5528.32 of the Revised Code until the 2,182
commissioners of the sinking fund certify to the treasurer of 2,183
state, as required by section 5528.38 of the Revised Code, that 2,184
there are sufficient moneys to the credit of the highway 2,185
obligations bond retirement fund to meet in full all payments of 2,186
interest, principal, and charges for the retirement of bonds and 2,187
other obligations issued pursuant to Section 2i of Article VIII, 2,188
Ohio Constitution, and sections 5528.30 and 5528.31 of the 2,189
Revised Code due and payable during the current calendar year and 2,190
during the next succeeding calendar year. From the date of the 2,191
receipt of the certification required by section 5528.38 of the 2,192
Revised Code by the treasurer of state until the thirty-first day 2,193
of December of the calendar year in which the certification is 2,194
made, all moneys received in the state treasury from taxes levied 2,195
under section 5728.06 of the Revised Code and fees assessed under 2,196
sections 5728.02 and 5728.03 of the Revised Code which are not 2,197
required to be placed to the credit of the tax refund fund as 2,198
provided by this section shall be credited to the highway 2,199
operating fund created by section 5735.291 of the Revised Code, 2,200
except as provided by the next succeeding paragraph of this 2,201
section. 2,202
From the date of the receipt by the treasurer of state of 2,204
certifications from the commissioners of the sinking fund, as 2,205
required by sections 5528.18 and 5528.39 of the Revised Code, 2,206
certifying that the moneys to the credit of the highway 2,207
improvement bond retirement fund are sufficient to meet in full 2,208
all payments of interest, principal, and charges for the 2,209
retirement of all bonds and other obligations which may be issued 2,210
pursuant to Section 2g of Article VIII, Ohio Constitution, and 2,211
sections 5528.10 and 5528.11 of the Revised Code, and to the 2,212
credit of the highway obligations bond retirement fund are 2,213
sufficient to meet in full all payments of interest, principal, 2,214
52
and charges for the retirement of all obligations issued pursuant 2,215
to Section 2i of Article VIII, Ohio Constitution, and sections 2,216
5528.30 and 5528.31 of the Revised Code, all moneys received in 2,217
the state treasury from the taxes levied under section 5728.06 2,218
and fees assessed under sections 5728.02 and 5728.03 of the 2,219
Revised Code, which are not required to be placed to the credit 2,220
of the tax refund fund as provided by this section, shall be 2,221
deposited to the credit of the highway operating fund. 2,222
As used in this section, "farm truck" means any commercial 2,224
car or commercial tractor that is registered as a farm truck 2,225
under Chapter 4503. of the Revised Code. 2,226
Sec. 5728.09. (A) Any person who fails to file timely the 2,235
return required by section 5728.08 of the Revised Code shall MAY 2,236
BE REQUIRED TO pay an additional charge equal to the greater of 2,238
fifty dollars or ten per cent of the tax due. THE COMMISSIONER 2,239
MAY ADOPT RULES PROVIDING FOR THE IMPOSITION AND REMISSION OF THE 2,241
ADDITIONAL CHARGES. Any additional charge imposed under this 2,243
section may be collected through an assessment as provided in 2,244
section 5728.10 of the Revised Code.
(B) If the tax imposed by this chapter or section 5735.31 2,246
of the Revised Code, or any portion of that tax, whether 2,247
determined by the tax commissioner or the taxpayer, is not paid 2,248
on or before the date prescribed in section 5728.08 of the 2,249
Revised Code, interest shall be collected and paid in the same 2,250
manner as the tax, upon that unpaid amount at the rate per annum 2,251
prescribed by section 5703.47 of the Revised Code from the date 2,252
prescribed for payment of the tax until it is paid or until the 2,253
day an assessment is issued under section 5728.10 of the Revised 2,254
Code, whichever occurs first. Any interest imposed under this 2,257
chapter may be collected through an assessment as provided in 2,259
section 5728.10 of the Revised Code.
Sec. 5728.10. (A) If any person required to file a 2,268
highway use tax return by sections 5728.01 to 5728.14 of the 2,269
Revised Code, fails to file the return within the time prescribed 2,270
53
by those sections, files an incomplete return, files an incorrect 2,271
return, or fails to remit the full amount of the tax due for the 2,272
period covered by the return, the tax commissioner may make an 2,273
assessment against the person, based upon any information in the 2,274
commissioner's possession, for the period for which the tax was 2,275
due. 2,276
No assessment shall be made against any person for any tax 2,278
imposed by this chapter more than four years after the last day 2,279
of the calendar year during which the tax was due. This section 2,280
does not bar an assessment against any person who fails to file a 2,281
highway use tax return as required by this chapter, or who files 2,282
a fraudulent highway use tax return. 2,283
A penalty of UP TO fifteen per cent shall MAY be added to 2,285
the amount of every assessment made pursuant to this section. 2,287
The commissioner may adopt rules providing for the IMPOSITION AND 2,288
remission of penalties added to assessments made under this 2,290
section.
The commissioner shall give the party assessed written 2,292
notice of the assessment by personal service or certified mail AS 2,293
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 2,294
(B) Unless the party to whom the notice of assessment is 2,296
directed files with the commissioner within thirty SIXTY days 2,297
after service of the notice of assessment, either personally or 2,299
by certified mail, a petition for reassessment in writing, signed 2,300
by the party assessed, or by the party's authorized agent having 2,302
knowledge of the facts, the assessment shall become final and the 2,304
amount of the assessment shall be due and payable from the party 2,305
assessed to the treasurer of state. The petition shall indicate 2,306
the objections of the party assessed, but additional objections 2,307
may be raised in writing if received prior to the date shown on 2,308
the final determination by the commissioner. 2,309
Unless the petitioner waives a hearing, the commissioner 2,311
shall assign a time and place for the hearing on the petition and 2,312
notify the petitioner of the time and place of the hearing by 2,313
54
personal service or certified mail, but the commissioner may 2,314
continue the hearing from time to time if necessary. 2,315
The commissioner may make such correction to the assessment 2,317
as the commissioner finds proper. The commissioner shall serve a 2,319
copy of the commissioner's final determination on the petitioner 2,320
by personal service or certified mail, and the commissioner's 2,321
decision in the matter shall be final, subject to appeal as 2,323
provided in section 5717.02 of the Revised Code. Only objections 2,324
decided on the merits by the board of tax appeals or a court 2,325
shall be given collateral estoppel or res judicata effect in 2,326
considering an application for refund of amounts paid pursuant to 2,327
the assessment.
(C) After an assessment becomes final, if any portion of 2,329
the assessment remains unpaid, including accrued interest, a 2,330
certified copy of the commissioner's entry making the assessment 2,332
final may be filed in the office of the clerk of the court of 2,333
common pleas in the county in which the party's place of business 2,334
is located or the county in which the party assessed resides. If 2,335
the party maintains no office in this state and is not a resident 2,336
of this state, the certified copy of the entry may be filed in 2,337
the office of the clerk of the court of common pleas of Franklin 2,338
county.
The clerk, immediately upon the filing of the entry, shall 2,340
enter a judgment for the state of Ohio against the party assessed 2,341
in the amount shown on the entry. The judgment may be filed by 2,342
the clerk in a loose-leaf book entitled "special judgments for 2,343
state highway use tax," and shall have the same effect as other 2,345
judgments. Execution shall issue upon the judgment upon the 2,346
request of the tax commissioner, and all laws applicable to sales 2,347
on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 2,350
days after the day the assessment was issued shall bear interest 2,352
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax commissioner issues the 2,354
55
assessment until it is paid. Interest shall be paid in the same 2,355
manner as the tax and may be collected by the issuance of an 2,356
assessment under this section. 2,357
(D) All money collected by the commissioner under this 2,359
section shall be paid into the state treasury in the same manner 2,360
as the revenues deriving from the taxes imposed by section 2,361
5728.06 of the Revised Code. 2,362
Sec. 5733.11. (A) If any corporation required to file a 2,371
report under this chapter fails to file the report within the 2,372
time prescribed, files an incorrect report, or fails to remit the 2,373
full amount of the tax due for the period covered by the report, 2,374
the tax commissioner may make an assessment against the 2,375
corporation for any deficiency for the period for which the 2,376
report or tax is due, based upon any information in the 2,377
commissioner's possession. 2,378
No assessment shall be made or issued against a corporation 2,380
more than three years after the later of the final date the 2,381
report subject to assessment was required to be filed or the date 2,382
the report was filed. Such time limit may be extended if both 2,383
the corporation and the commissioner consent in writing to the 2,384
extension. Any such extension shall extend the three-year time 2,385
limit in division (B) of section 5733.12 of the Revised Code for 2,386
the same period of time. There shall be no bar or limit to an 2,387
assessment against a corporation that fails to file a report 2,388
subject to assessment as required by this chapter, or that files 2,389
a fraudulent report. 2,390
The commissioner shall give the corporation assessed 2,392
written notice of the assessment by personal service or certified 2,393
mail AS PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 2,394
(B) Unless the corporation to which the notice of 2,396
assessment is directed files with the commissioner within thirty 2,397
SIXTY days after service thereof, either personally or by 2,399
certified mail AS PROVIDED IN SECTION 5703.056 OF THE REVISED 2,401
CODE, a petition for reassessment in writing, signed by the 2,402
56
authorized agent of the corporation assessed having knowledge of 2,403
the facts, and makes payment of the portion of the assessment 2,404
required by division (E) of this section, the assessment shall 2,405
become final, and the amount of the assessment shall be due and 2,408
payable from the corporation assessed to the treasurer of state. 2,409
The petition shall indicate the corporation's objections, but 2,410
additional objections may be raised in writing if received prior 2,411
to the date shown on the final determination by the commissioner. 2,412
Unless the petitioner waives a hearing, the commissioner 2,414
shall assign a time and place for the hearing on the petition and 2,415
notify the petitioner of the time and place of the hearing by 2,416
personal service or certified mail, but the commissioner may 2,417
continue the hearing from time to time if necessary. 2,418
The commissioner may make such correction to the assessment 2,420
as the commissioner finds proper. The commissioner shall serve a 2,422
copy of the final determination on the petitioner by personal 2,423
service or by certified mail, and the commissioner's decision in 2,424
the matter shall be final, subject to appeal as provided in 2,426
section 5717.02 of the Revised Code. Only objections decided on 2,427
the merits by the board of tax appeals or a court shall be given 2,428
collateral estoppel or res judicata effect in considering an 2,429
application for refund of amounts paid pursuant to the 2,430
assessment.
(C) After an assessment becomes final, if any portion of 2,432
the assessment remains unpaid, including accrued interest, a 2,433
certified copy of the commissioner's entry making the assessment 2,435
final may be filed in the office of the clerk of the court of 2,436
common pleas in the county in which the corporation has an office 2,437
or place of business in this state, the county in which the 2,438
corporation's statutory agent is located, or Franklin county. 2,439
Immediately upon the filing of the entry, the clerk shall 2,441
enter a judgment against the corporation assessed in the amount 2,442
shown on the entry. The judgment may be filed by the clerk in a 2,443
loose-leaf book entitled "special judgments for state corporate 2,444
57
franchise and litter taxes," and shall have the same effect as 2,446
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to 2,447
sales on execution shall apply to sales made under the judgment. 2,448
The portion of an assessment not paid within thirty SIXTY 2,451
days after the day the assessment was issued shall bear interest 2,452
at the rate per annum prescribed by section 5703.47 of the 2,453
Revised Code from the day the tax commissioner issues the 2,455
assessment until the assessment is paid. Interest shall be paid 2,456
in the same manner as the tax and may be collected by issuing an 2,457
assessment under this section. 2,458
(D) All money collected under this section shall be 2,460
considered as revenue arising from the taxes imposed by this 2,461
chapter. 2,462
(E) The portion of an assessment which must be paid upon 2,464
the filing of a petition for reassessment shall be as follows: 2,465
(1) If the sole item objected to is the assessed penalty 2,467
or interest, full payment of the assessment, including INTEREST 2,469
BUT NOT penalty and interest, is required; 2,471
(2) If the corporation assessed failed to file, prior to 2,473
the date of issuance of the assessment, the annual report 2,474
required by section 5733.02 of the Revised Code, any amended 2,475
report required by division (C) of section 5733.031 of the 2,476
Revised Code for the tax year at issue, or any amended report 2,477
required by division (D) of section 5733.067 of the Revised Code 2,478
to indicate a reduction in the amount of the credit provided 2,479
under that section, full payment of the assessment, including 2,480
INTEREST BUT NOT penalty and interest, is required; 2,481
(3) If the corporation assessed filed, prior to the date 2,483
of issuance of the assessment, the annual report required by 2,484
section 5733.02 of the Revised Code, all amended reports required 2,485
by division (C) of section 5733.031 of the Revised Code for the 2,486
tax year at issue, and all amended reports required by division 2,487
(D) of section 5733.067 of the Revised Code to indicate a 2,488
58
reduction in the amount of the credit provided under that 2,489
section, and a balance of the taxes shown due on the reports as 2,490
computed on the reports remains unpaid, payment of only that 2,491
portion of the assessment representing the unpaid balance OF TAX 2,492
AND INTEREST is required; 2,493
(4) If the corporation assessed does not dispute that it 2,495
is a taxpayer but claims the protections of section 101 of Public 2,496
Law 86-272, 73 Stat. 555, 15 U.S.C.A. 381, as amended, payment of 2,497
only that portion of the assessment representing any balance of 2,498
taxes shown due on the corporation's annual report required by 2,499
section 5733.02 of the Revised Code, as computed on the report, 2,500
that remains unpaid, and that represents taxes imposed by 2,501
division (C) of section 5733.06, division (C)(2) of section 2,502
5733.065, and division (C) of section 5733.066 of the Revised 2,503
Code, TOGETHER WITH ALL RELATED INTEREST, is required; 2,504
(5) If none of the conditions specified in divisions 2,506
(E)(1) to (4) of this section apply, or if the corporation 2,507
assessed disputes that it is a taxpayer, no payment is required. 2,508
(F) Notwithstanding the fact that a petition for 2,510
reassessment is pending, the corporation may pay all or a portion 2,511
of the assessment that is the subject of the petition. The 2,512
acceptance of a payment by the treasurer of state does not 2,513
prejudice any claim for refund upon final determination of the 2,514
petition. 2,515
If upon final determination of the petition an error in the 2,517
assessment is corrected by the commissioner, upon petition so 2,518
filed or pursuant to a decision of the board of tax appeals or 2,519
any court to which the determination or decision has been 2,520
appealed, so that the amount due from the corporation under the 2,521
corrected assessment is less than the portion paid, there shall 2,522
be issued to the corporation, its assigns, or legal 2,523
representative a refund in the amount of the overpayment as 2,524
provided by section 5733.12 of the Revised Code, with interest on 2,525
that amount as provided by section 5733.26 of the Revised Code, 2,526
59
subject to section 5733.121 of the Revised Code. 2,527
Sec. 5733.28. (A) In addition to any other penalty 2,536
imposed by this chapter or Chapter 5703. of the Revised Code, the 2,537
following penalties shall apply: 2,538
(1) If a taxpayer required to file any report, including 2,540
an informational notice or report, under this chapter fails to 2,541
make and file the report within the time prescribed, including 2,542
any extensions of time granted by the tax commissioner, a penalty 2,543
shall MAY be imposed equal to NOT EXCEEDING the greater of fifty 2,545
dollars per month or fraction of a month, not to exceed five 2,546
hundred dollars, or five per cent per month or fraction of a 2,547
month, not to exceed fifty per cent, of the tax required to be 2,548
shown on the report, for each month or fraction of a month 2,549
elapsing between the due date, including extensions of the due 2,550
date, and the date on which filed. 2,551
(2) If a taxpayer fails to pay any amount of tax required 2,553
to be paid under this chapter, except estimated tax under section 2,554
5733.021 of the Revised Code, by the dates prescribed for 2,555
payment, a penalty shall MAY be imposed equal to NOT EXCEEDING 2,557
twice the interest charged under division (A) of section 5733.26 2,558
of the Revised Code for the delinquent payment. 2,559
(3) If a taxpayer fails to pay any amount of estimated tax 2,561
required to be paid under section 5733.021 of the Revised Code by 2,562
the dates prescribed for payment, a penalty shall MAY be imposed 2,563
equal to NOT EXCEEDING twice the interest charged under division 2,564
(A) of section 5733.29 of the Revised Code for the delinquent 2,566
payment.
(4) If a taxpayer files what purports to be a report 2,568
required by this chapter that does not contain information upon 2,569
which the substantial correctness of the report may be judged or 2,570
contains information that on its face indicates that the report 2,571
is substantially incorrect, and the filing of the report in that 2,572
manner is due to a position that is frivolous or a desire that is 2,573
apparent from the report to delay or impede the administration of 2,574
60
the tax levied by this chapter, a penalty of UP TO five hundred 2,575
dollars shall MAY be imposed. 2,576
(5) If a taxpayer makes a fraudulent attempt to evade the 2,578
reporting or payment of the tax required to be shown on any 2,579
report required under this chapter, a penalty shall MAY be 2,580
imposed equal to NOT EXCEEDING the greater of one thousand 2,582
dollars or one hundred per cent of the tax required to be shown 2,584
on the report.
(6) If any person makes a false or fraudulent claim for a 2,586
refund under this chapter, a penalty shall MAY be imposed equal 2,588
to NOT EXCEEDING the greater of one thousand dollars or one 2,589
hundred per cent of the claim. The penalty imposed under 2,590
division (A)(6) of this section, any refund issued on the claim, 2,591
and interest on any refund from the date of the refund, may be 2,592
assessed under section 5733.11 of the Revised Code as tax, 2,593
penalty, or interest imposed under this chapter without regard to 2,594
whether the person making the claim is otherwise subject to the 2,595
provisions of this chapter, and without regard to any time 2,596
limitation for the assessment imposed by division (A) of section 2,597
5733.11 of the Revised Code.
(B) For purposes of this section, the tax required to be 2,599
shown on the report shall be reduced by the amount of any part of 2,600
the tax paid on or before the date, including extensions of the 2,601
date, prescribed for filing the report. 2,602
(C) Each penalty imposed under this section shall be in 2,604
addition to any other penalty provided in this section. All or 2,605
part of any penalty imposed under this section shall be abated by 2,606
the commissioner if the taxpayer shows that the failure to comply 2,607
with the provisions of this chapter is due to reasonable cause 2,608
and not willful neglect. 2,609
Sec. 5735.01. As used in this chapter: 2,618
(A) "Motor vehicles" includes all vehicles, vessels, 2,620
watercraft, engines, machines, or mechanical contrivances which 2,621
are powered by internal combustion engines or motors. 2,622
61
(B) "Motor fuel" means gasoline, diesel fuel, K-1 (water 2,624
clear) kerosene, or any other liquid motor fuel, including, but 2,625
not limited to, liquid petroleum gas or liquid natural gas, but 2,626
excluding substances prepackaged and sold in containers of five 2,627
gallons or less.
(C) "K-1 Kerosene (waterclear)" means fuel that conforms 2,629
to the chemical and physical standards for kerosene no. 1-K as 2,631
set forth in the american society for testing and materials 2,633
(ASTM) designated D-3699 "standard for specification for 2,634
kerosene," as that standard may be modified from time to time. 2,635
For purposes of inspection and testing, laboratory analysis shall 2,637
be conducted using methods recognized by the ASTM designation 2,638
D-3699.
(D) "Diesel fuel" means any liquid fuel capable of use in 2,641
discrete form or as a blend component in the operation of engines 2,642
of the diesel type, INCLUDING TRANSMIX WHEN MIXED WITH DIESEL 2,643
FUEL.
(E) "Gasoline" means any of the following: 2,646
(1) All products, commonly or commercially known or sold 2,648
as gasoline; 2,649
(2) Any blend stocks or additives, other than INCLUDING 2,651
alcohol, that are sold for blending with gasoline, other than 2,653
products typically sold in containers of five gallons or less; 2,654
(3) Transmix WHEN MIXED WITH GASOLINE, unless certified, 2,656
as required by the tax commissioner, for withdrawal from 2,658
terminals for reprocessing at refineries; 2,659
(4) Alcohol that is offered for sale or sold for use as, 2,661
or commonly and commercially used as, a fuel for internal 2,662
combustion engines. 2,663
Gasoline does not include diesel fuel, commercial or 2,665
industrial napthas or solvents manufactured, imported, received, 2,666
stored, distributed, sold, or used exclusively for purposes other 2,668
than as a motor fuel for a motor vehicle or vessel. The blending 2,669
of any of the products listed in the preceding sentence, 2,670
62
regardless of name or characteristics, is conclusively presumed
to have been done to produce gasoline, unless the product 2,672
obtained by the blending is entirely incapable for use as fuel to 2,673
operate a motor vehicle. An additive, blend stock, or alcohol is 2,674
presumed to be sold for blending unless a certification is 2,675
obtained as required by the tax commissioner. 2,676
(F) "Public highways" means lands and lots over which the 2,678
public, either as user or owner, generally has a right to pass, 2,679
even though the same are closed temporarily by the authorities 2,680
for the purpose of construction, reconstruction, maintenance, or 2,681
repair. 2,682
(G) "Waters within the boundaries of this state" means all 2,684
streams, lakes, ponds, marshes, water courses, and all other 2,685
bodies of surface water, natural or artificial, which are 2,686
situated wholly or partially within this state or within its 2,687
jurisdiction, except private impounded bodies of water. 2,688
(H) "Person" includes individuals, partnerships, firms, 2,692
associations, corporations, receivers, trustees in bankruptcy, 2,693
estates, joint-stock companies, joint ventures, the state and its
political subdivisions, and any combination of persons of any 2,694
form.
(I)(1) "Motor fuel dealer" means any person who satisfies 2,697
any of the following:
(a) The person imports from another state or foreign 2,699
country or acquires motor fuel by any means into a terminal in 2,700
this state;
(b) The person imports motor fuel from another state or 2,702
foreign country in bulk lot vehicles for subsequent sale and 2,703
distribution in this state from bulk lot vehicles; 2,704
(c) The person refines motor fuel in this state; 2,706
(d) The person acquires motor fuel from a motor fuel 2,708
dealer for subsequent sale and distribution by that person in 2,709
this state from bulk lot vehicles; 2,710
(e) The person possesses an unrevoked permissive motor 2,712
63
fuel dealer's license. 2,713
(2) Any person who obtains dyed diesel fuel for use other 2,715
than the operation of motor vehicles upon the public highways or 2,716
upon waters within the boundaries of this state, but later uses 2,717
that motor fuel for the operation of motor vehicles upon the 2,718
public highways or upon waters within the boundaries of this 2,719
state, is deemed a motor fuel dealer as regards any unpaid motor 2,720
fuel taxes levied on the motor fuel so used. 2,721
(J) As used in sections 5735.05, 5735.25, 5735.29, and 2,724
5735.30 of the Revised Code only: 2,726
(1) With respect to gasoline, "received" or "receipt" 2,728
shall be construed as follows: 2,729
(a) Gasoline produced at a refinery in this state or 2,731
delivered to a terminal in this state is deemed received when it 2,732
is disbursed through a loading rack at that refinery or terminal; 2,733
(b) Except as provided in division (J)(1)(a) of this 2,736
section, gasoline imported into this state or purchased or 2,737
otherwise acquired in this state by any person is deemed received 2,739
within this state by that person when the gasoline is withdrawn 2,740
from the container in which it was transported;
(c) Gasoline delivered or disbursed by any means from a 2,742
terminal directly to another terminal is not deemed received. 2,743
(2) With respect to motor fuel other than gasoline, 2,745
"received" or "receipt" means distributed or sold for use or used 2,746
to generate power for the operation of motor vehicles upon the 2,747
public highways or upon waters within the boundaries of this 2,748
state. All diesel fuel that is not dyed diesel fuel, regardless 2,749
of its use, shall be considered as used to generate power for the 2,750
operation of motor vehicles upon the public highways or upon
waters within the boundaries of this state when the fuel is sold 2,751
or distributed to a person other than a licensed motor fuel 2,752
dealer or to a person licensed under section 5735.026 of the 2,753
Revised Code.
(K) Motor fuel used for the operation of licensed motor 2,757
64
vehicles employed in the maintenance, construction, or repair of 2,758
public highways is deemed to be used for the operation of motor 2,759
vehicles upon the public highways.
(L) "Licensed motor fuel dealer" means any dealer 2,762
possessing an unrevoked motor fuel dealer's license issued by the 2,763
tax commissioner as provided in section 5735.02 of the Revised 2,765
Code.
(M) "Licensed retail dealer" means any retail dealer 2,768
possessing an unrevoked retail dealer's license issued by the tax 2,769
commissioner as provided in section 5735.022 of the Revised Code. 2,770
(N) "Cents per gallon rate" means the amount computed by 2,773
the tax commissioner under section 5735.011 of the Revised Code 2,774
that is used to determine that portion of the tax levied by 2,775
section 5735.05 of the Revised Code that is computed in the 2,776
manner prescribed by division (B)(2) of section 5735.06 of the 2,777
Revised Code and that is applicable for the period that begins on 2,778
the first day of July following the date on which the 2,779
commissioner makes the computation. 2,780
(O) "Retail dealer" means any person that sells or 2,783
distributes motor fuel at a retail service station located in 2,784
this state. 2,785
(P) "Retail service station" means a location from which 2,788
motor fuel is sold to the general public and is dispensed or
pumped directly into motor vehicle fuel tanks for consumption. 2,789
(Q) "Transit bus" means a motor vehicle having a seating 2,791
capacity of more than ten persons which is operated for public 2,792
transit or paratransit service on a regular and continuing basis 2,793
within the state by or for a county, a municipal corporation, a 2,794
county transit board pursuant to sections 306.01 to 306.13 of the 2,795
Revised Code, a regional transit authority pursuant to sections 2,796
306.30 to 306.54 of the Revised Code, or a regional transit 2,797
commission pursuant to sections 306.80 to 306.90 of the Revised 2,798
Code. Public transit or paratransit service may include fixed 2,799
route, demand-responsive, or subscription bus service 2,800
65
transportation, but does not include shared-ride taxi service, 2,801
carpools, vanpools, jitney service, school bus transportation, or 2,802
charter or sightseeing services. 2,803
(R) "Export" means motor fuel delivered outside this 2,806
state. Motor fuel delivered outside this state by or for the 2,807
seller constitutes an export by the seller. Motor fuel delivered 2,808
outside this state by or for the purchaser constitutes an export 2,809
by the purchaser.
(S) "Import" means motor fuel delivered into this state 2,812
from outside this state. Motor fuel delivered into this state 2,813
from outside this state by or for the seller constitutes an 2,814
import by the seller. Motor fuel delivered into this state from 2,815
outside this state by or for the purchaser constitutes an import 2,816
by the purchaser.
(T) "Terminal" means a motor fuel storage or distribution 2,819
facility that is supplied by pipeline or marine vessel. 2,820
(U) "Consumer" means a buyer of motor fuel for purposes 2,823
other than resale in any form.
(V) "Bulk lot vehicle" means railroad tank cars, transport 2,826
tank trucks and tank wagons with a capacity of at least 1,400 2,827
gallons.
(W) "Licensed permissive motor fuel dealer" means any 2,830
person possessing an unrevoked permissive motor fuel dealer's 2,831
license issued by the tax commissioner under section 5735.021 of 2,832
the Revised Code. 2,833
(X) "Licensed terminal operator" means any person 2,836
possessing an unrevoked terminal operator's license issued by the 2,837
tax commissioner under section 5735.026 of the Revised Code. 2,838
(Y) "Licensed exporter" means any person possessing an 2,841
unrevoked exporter's license issued by the tax commissioner under 2,842
section 5735.026 of the Revised Code. 2,843
(Z) "Dyed diesel fuel" means any diesel fuel dyed pursuant 2,846
to regulations issued by the internal revenue service or a rule 2,847
promulgated by the tax commissioner.
66
(AA) "GROSS GALLONS" MEANS U.S. GALLONS WITHOUT 2,849
TEMPERATURE OR BAROMETRIC ADJUSTMENTS. 2,850
(BB) "NET GALLONS" MEANS U.S. GALLONS WITH A TEMPERATURE 2,853
ADJUSTMENT TO SIXTY DEGREES FAHRENHEIT.
Sec. 5735.012. AMOUNTS OF MOTOR FUEL REPORTED UNDER THIS 2,855
CHAPTER SHALL BE MEASURED IN GROSS GALLONS, EXCEPT THAT AMOUNTS 2,856
REPORTED FOR TERMINAL TO TERMINAL TRANSACTIONS SHALL BE MEASURED 2,857
IN NET GALLONS AND AMOUNTS REPORTED FOR TERMINAL TO OHIO LICENSED 2,858
DEALER TRANSACTIONS SHALL BE MEASURED IN BOTH NET GALLONS AND 2,859
GROSS GALLONS.
Sec. 5735.023. (A) No person operating a retail service 2,869
station shall store, sell, or attempt to sell or distribute any 2,870
untaxed motor fuel, except K-1 (water clear) kerosene, at a 2,871
retail service station.
(B) A licensed motor fuel dealer that operates a bulk 2,874
storage plant and also maintains at the same location a retail 2,875
pump that is connected to a bulk storage tank is not subject to 2,876
division (A) of this section, except that the licensed motor fuel 2,877
dealer shall pay the tax on all motor fuel dispensed through the 2,878
retail pump.
(C) Each day, or part thereof, that a person is in 2,880
violation of division (A) or (B) of this section constitutes a 2,881
separate offense for purposes of section 5735.99 of the Revised 2,882
Code. 2,883
Sec. 5735.05. (A) To provide revenue for maintaining the 2,892
state highway system; to widen existing surfaces on such 2,893
highways; to resurface such highways; to pay that portion of the 2,894
construction cost of a highway project which a county, township, 2,895
or municipal corporation normally would be required to pay, but 2,896
which the director of transportation, pursuant to division (B) of 2,897
section 5531.08 of the Revised Code, determines instead will be 2,898
paid from moneys in the highway operating fund; to enable the 2,899
counties of the state properly to plan, maintain, and repair 2,900
their roads and to pay principal, interest, and charges on bonds 2,901
67
and other obligations issued pursuant to Chapter 133. of the 2,902
Revised Code for highway improvements; to enable the municipal 2,903
corporations to plan, construct, reconstruct, repave, widen, 2,904
maintain, repair, clear, and clean public highways, roads, and 2,905
streets, and to pay the principal, interest, and charges on bonds 2,906
and other obligations issued pursuant to Chapter 133. of the 2,907
Revised Code for highway improvements; to enable the Ohio 2,908
turnpike commission to construct, reconstruct, maintain, and 2,909
repair turnpike projects; to maintain and repair bridges and 2,910
viaducts; to purchase, erect, and maintain street and traffic 2,911
signs and markers; to purchase, erect, and maintain traffic 2,912
lights and signals; to pay the costs apportioned to the public 2,913
under sections 4907.47 and 4907.471 of the Revised Code and to 2,914
supplement revenue already available for such purposes; to pay 2,915
the costs incurred by the public utilities commission in 2,916
administering sections 4907.47 to 4907.476 of the Revised Code; 2,917
to distribute equitably among those persons using the privilege 2,918
of driving motor vehicles upon such highways and streets the cost 2,919
of maintaining and repairing them; to pay the interest, 2,920
principal, and charges on highway capital improvements bonds and 2,921
other obligations issued pursuant to Section 2m of Article VIII, 2,923
Ohio Constitution, and sections 5528.51 to 5528.56 of the Revised 2,926
Code; to pay the interest, principal, and charges on highway 2,927
obligations issued pursuant to Section 2i of Article VIII, Ohio 2,928
Constitution, and sections 5528.30 and 5528.31 of the Revised 2,929
Code; and to provide revenue for the purposes of sections 1547.71 2,930
to 1547.78 of the Revised Code, a motor fuel excise tax is hereby 2,931
imposed on all motor fuel dealers upon receipt of motor fuel 2,932
within this state at the rate of two cents plus the cents per 2,934
gallon rate on each gallon so received, to be computed in the 2,935
manner set forth in section 5735.06 of the Revised Code; provided 2,937
that no tax is hereby imposed upon the following transactions: 2,938
(1) The sale of dyed diesel fuel by a licensed motor fuel 2,941
dealer from a location other than a retail service station 2,942
68
provided the licensed motor fuel dealer places on the face of the 2,943
delivery document or invoice, or both if both are used, a 2,944
conspicuous notice stating that the fuel is dyed and is not for 2,945
taxable use, and that taxable use of that fuel is subject to a 2,946
penalty. The tax commissioner, by rule, may provide that any 2,947
notice conforming to rules or regulations issued by the United 2,948
States department of the treasury or the Internal Revenue Service 2,949
is sufficient notice for the purposes of division (A)(1) of this 2,950
section;.
(2) The sale of K-1 (water clear) kerosene to a retail 2,952
service station, except when placed directly in the fuel supply 2,953
tank of a motor vehicle. Such sale shall be rebuttably presumed 2,954
to not be distributed or sold for use or used to generate power 2,955
for the operation of motor vehicles upon the public highways or 2,956
upon the waters within the boundaries of this state. 2,957
(3) The sale of motor fuel by a licensed motor fuel dealer 2,960
to another licensed motor fuel dealer;
(4) The exportation of motor fuel by a licensed motor fuel 2,964
dealer from this state to any other state or foreign country; 2,966
(5) The sale of motor fuel to the United States government 2,970
or any of its agencies, except such tax as is permitted by it, 2,971
where such sale is evidenced by an exemption certificate, in form 2,972
approved by the tax commissioner, executed by the United States 2,973
government or an agency thereof certifying that the motor fuel 2,974
therein identified has been purchased for the exclusive use of 2,975
the United States government or its agency; 2,976
(6) The sale of motor fuel which is in the process of 2,980
transportation in foreign or interstate commerce, except in so
far as it may be taxable under the Constitution and statutes of 2,982
the United States, and except as may be agreed upon in writing by 2,983
the dealer and the commissioner; 2,984
(7) The sale of motor fuel when sold exclusively for use 2,988
in the operation of aircraft, where such sale is evidenced by an 2,990
exemption certificate prescribed by the commissioner and executed 2,991
69
by the purchaser certifying that the motor fuel purchased has 2,992
been purchased for exclusive use in the operation of aircraft; 2,993
(8) The sale for exportation of motor fuel by a licensed 2,995
motor fuel dealer to a licensed exporter type A; 2,996
(9) The sale for exportation of motor fuel by a licensed 2,998
motor fuel dealer to a licensed exporter type B, provided that 2,999
the destination state motor fuel tax has been paid or will be 3,000
accrued and paid by the licensed motor fuel dealer. 3,001
(10) THE SALE TO A CONSUMER OF DIESEL FUEL, BY A MOTOR 3,003
FUEL DEALER FOR DELIVERY FROM A BULK LOT VEHICLE, FOR CONSUMPTION 3,004
IN OPERATING A VESSEL WHEN THE USE OF SUCH FUEL IN A VESSEL WOULD 3,005
OTHERWISE QUALIFY FOR A REFUND UNDER SECTION 5735.14 OF THE 3,006
REVISED CODE.
Division (A)(1) of this section does not apply to the sale 3,009
or distribution of dyed diesel fuel used to operate a motor
vehicle on the public highways or upon water within the 3,010
boundaries of this state by persons permitted under regulations 3,011
of the United States department of the treasury or of the 3,013
Internal Revenue Service to so use dyed diesel fuel.
(B) The two cent motor fuel tax levied by this section is 3,016
also for the purpose of paying the expenses of administering and 3,017
enforcing the state law relating to the registration and 3,018
operation of motor vehicles. 3,019
After the tax provided for by this section on the receipt 3,021
of any motor fuel has been paid by the motor fuel dealer, the 3,024
motor fuel may thereafter be used, sold, or resold by any person 3,026
having lawful title to it, without incurring liability for such 3,027
tax.
If a licensed motor fuel dealer sells motor fuel received 3,030
by the licensed motor fuel dealer to another licensed motor fuel 3,033
dealer, the seller may deduct on the report required by section 3,035
5735.06 of the Revised Code the number of gallons so sold for the 3,036
month within which the motor fuel was sold or delivered. In this 3,037
event the number of gallons is deemed to have been received by 3,038
70
the purchaser, who shall report and pay the tax imposed thereon. 3,039
Sec. 5735.12. (A) Any motor fuel dealer or qualified 3,048
interstate bus operator required by this chapter to file reports 3,049
and pay the tax levied by this chapter who fails to file the 3,052
report within the time prescribed, shall MAY be liable for an 3,054
additional charge equal to NOT EXCEEDING the greater of ten per 3,055
cent of the motor fuel dealer's or qualified interstate bus 3,056
operator's tax liability for that month or fifty dollars. The 3,058
tax commissioner may remit all or a portion of the additional 3,059
charge and may adopt rules relating to the remission of all or a 3,060
portion of the charge. 3,061
If any person required by this chapter to file reports and 3,063
pay the taxes, interest, or additional charge levied by this 3,065
chapter fails to file the report, files an incomplete or 3,066
incorrect report, or fails to remit the full amount of the tax, 3,067
interest, or additional charge due for the period covered by the 3,069
report, the commissioner may make an assessment against the 3,070
person based upon any information in the commissioner's 3,071
possession.
No assessment shall be made against any motor fuel dealer 3,073
or interstate bus operator for taxes imposed by this chapter more 3,074
than four years after the date on which the report on which the 3,075
assessment was based was due or was filed, whichever is later. 3,076
This section does not bar an assessment against any motor fuel 3,077
dealer or qualified interstate bus operator who fails to file a 3,078
report required by either section 5735.06 or 5735.32 of the 3,079
Revised Code, or who files a fraudulent motor fuel tax report. 3,080
A penalty of UP TO fifteen per cent shall MAY be added to 3,082
the amount of every assessment made under this section. The 3,085
commissioner may adopt rules providing for the IMPOSITION AND 3,086
remission of penalties added to assessments made under this 3,088
section.
The commissioner shall give the party assessed written 3,090
notice of the assessment by personal service or certified mail AS 3,091
71
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 3,092
(B) Unless the party to whom the notice of assessment is 3,094
directed files with the commissioner within thirty SIXTY days 3,095
after service of the notice of assessment, either personally or 3,097
by certified mail, a petition for reassessment in writing, signed 3,098
by the party assessed, or by the authorized agent of the party 3,100
assessed having knowledge of the facts, the assessment shall
become final and the amount of the assessment shall be due and 3,102
payable from the party assessed to the treasurer of state. The 3,103
petition shall indicate the objections of the party assessed, but 3,104
additional objections may be raised in writing if received prior 3,105
to the date shown on the final determination by the commissioner. 3,106
Unless the petitioner waives a hearing, the commissioner 3,108
shall assign a time and place for the hearing on the petition and 3,109
notify the petitioner of the time and place of the hearing by 3,110
personal service or certified mail, but the commissioner may 3,111
continue the hearing from time to time if necessary. 3,112
The commissioner may make such correction to the 3,114
commissioner's assessment as the commissioner finds proper. The 3,116
commissioner shall serve a copy of the commissioner's final 3,118
determination on the petitioner by personal service or certified 3,119
mail, and the commissioner's decision in the matter shall be 3,120
final, subject to appeal as provided in section 5717.02 of the 3,121
Revised Code. 3,122
(C) After an assessment becomes final, if any portion of 3,124
the assessment remains unpaid, including accrued interest, a 3,125
certified copy of the commissioner's entry making the assessment 3,126
final may be filed in the office of the clerk of the court of 3,127
common pleas in the county in which the party assessed resides or 3,128
in which the business of the party assessed is conducted. If the 3,129
party assessed maintains no place of business in this state and 3,130
is not a resident of this state, the certified copy of the entry 3,131
may be filed in the office of the clerk of the court of common 3,132
pleas of Franklin county.
72
The clerk, immediately upon the filing of the entry, shall 3,134
enter a judgment for the state against the party assessed in the 3,135
amount shown on the entry. The judgment may be filed by the 3,136
clerk in a loose-leaf book entitled "special judgments for state 3,137
motor fuel tax," and shall have the same effect as other 3,139
judgments. Execution shall issue upon the judgment upon the 3,140
request of the tax commissioner, and all laws applicable to sales 3,141
on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 3,143
days after the day the assessment was issued shall bear interest 3,145
at the rate per annum prescribed by section 5703.47 of the 3,146
Revised Code from the day the tax commissioner issues the 3,147
assessment until it is paid. Interest shall be paid in the same 3,148
manner as the tax and may be collected by the issuance of an
assessment under this section. 3,149
(D) All money collected by the commissioner under this 3,151
section shall be paid to the treasurer of state, and when paid 3,152
shall be considered as revenue arising from the tax imposed by 3,153
this chapter. 3,154
(E) If the tax commissioner determines that the 3,156
commissioner has erroneously refunded motor fuel tax to any 3,157
person, the commissioner may make an assessment against the 3,158
person for recovery of the erroneously refunded tax. 3,159
Sec. 5735.121. (A) If the tax commissioner finds that any 3,168
person liable for tax under this chapter is about to depart from 3,169
the state, remove property from the state, conceal self, or 3,171
conceal the person's property, or do any other act tending to 3,172
prejudice, obstruct, or render wholly or partly ineffectual 3,173
proceedings to collect the tax, unless proceedings are commenced 3,174
without delay, or if the commissioner believes that the 3,175
collection of the amount due from any person will be jeopardized 3,176
by delay, the commissioner may issue a jeopardy assessment 3,177
against the person for the amount of the tax, plus a penalty of 3,178
UP TO fifteen per cent. Upon issuance of a jeopardy assessment 3,179
73
under this division, the total amount assessed shall immediately 3,180
be due and payable unless security is provided pursuant to 3,181
division (C) of this section. Any assessment issued under this
section shall bear interest in the manner prescribed in section 3,184
5735.12 of the Revised Code.
(B) The commissioner immediately shall file an entry with 3,186
the clerk of the court of common pleas in the same manner and 3,187
with the same effect as provided in section 5735.12 of the 3,188
Revised Code. Notice of the jeopardy assessment shall be served 3,189
on the person assessed or the legal representative of the person 3,191
assessed, AS PROVIDED IN SECTION 5703.37 OF THE REVISED CODE,
within five days of the filing of the entry. The person assessed 3,193
may petition for reassessment within thirty SIXTY days of receipt 3,194
of the notice of jeopardy assessment in the same manner as 3,195
provided in section 5735.12 of the Revised Code. Full or partial 3,196
payment of the assessment shall not prejudice the commissioner's 3,197
consideration of the merits of the assessment as contested by the 3,198
petition for reassessment. Upon notification of the existence of 3,199
the judgment filed pursuant to this division, any public official 3,200
having control or custody of any funds or property of the person 3,201
assessed immediately shall pay or deliver the funds or property 3,202
to the commissioner as full or partial satisfaction of the 3,203
jeopardy assessment. However, funds or property needed as 3,204
evidence in criminal proceedings or that is expected to be 3,205
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the 3,206
Revised Code, need not be relinquished by the public official. 3,207
Upon disposition of criminal and forfeiture proceedings, funds 3,208
and property not needed as evidence and not forfeited shall be 3,209
delivered to the commissioner. 3,210
(C) If the person subject to a jeopardy assessment files a 3,212
petition for reassessment and posts security satisfactory to the 3,213
commissioner in an amount sufficient to satisfy the unpaid 3,214
balance of the assessment, execution on the judgment shall be 3,215
stayed pending disposition of the petition for reassessment and 3,216
74
all appeals resulting from the petition. If the security is 3,217
sufficient to satisfy the full amount of the assessment, the 3,218
commissioner shall return any funds or property of the person 3,219
that previously were seized. Upon satisfaction of the 3,220
assessment, the commissioner shall order the security released 3,221
and the judgment vacated. 3,222
(D) THE COMMISSIONER MAY ADOPT RULES PROVIDING FOR THE 3,224
IMPOSITION AND REMISSION OF PENALTIES ADDED TO ASSESSMENTS MADE 3,225
UNDER THIS SECTION.
Sec. 5735.14. Any person who uses any motor fuel, on which 3,235
the tax imposed by this chapter has been paid, for the purpose of 3,237
operating stationary gas engines, tractors not used on public 3,238
highways, unlicensed motor vehicles used exclusively in 3,239
intraplant operations, vessels when used in trade, including 3,240
vessels when used in connection with an activity which 3,241
constitutes a person's chief business or means of livelihood or 3,242
any other vessel used entirely for commercial purposes, vessels 3,243
used for commercial fishing, vessels used by the sea scout 3,244
department of the boy scouts of America chiefly for training 3,245
scouts in seamanship, vessels used or owned by any railroad 3,246
company, railroad car ferry company, the United States, this 3,247
state, or any political subdivision of this state, or aircraft, 3,248
or who uses any such fuel upon which such tax has been paid, for 3,249
cleaning or for dyeing, or any purpose other than the operation 3,250
of motor vehicles upon highways or upon waters within the 3,252
boundaries of this state, shall be reimbursed in the amount of 3,253
the tax so paid on such motor fuel as provided in this section; 3,254
provided, that any person purchasing motor fuel in this state on 3,255
which taxes levied under Title LVII of the Revised Code have been 3,256
paid shall be reimbursed for such taxes paid in this state on 3,257
such fuel used by that person in another state on which a tax is 3,258
paid for such usage, except such tax used as a credit against the 3,260
tax levied by section 5728.06 of the Revised Code. A person 3,261
shall not be reimbursed for taxes paid on fuel that is used while 3,262
75
a motor vehicle is idling or used to provide comfort or safety in 3,263
the operation of a motor vehicle.
Such person shall file with the tax commissioner an 3,265
application for refund within one hundred eighty days YEAR from 3,266
the date of purchase, stating the quantity of fuel used for 3,268
purposes other than the operation of motor vehicles, except that 3,270
no person shall file a claim for the tax on fewer than one 3,271
hundred gallons of motor fuel. Such application shall be 3,272
accompanied by the statement described in section 5735.15 of the 3,273
Revised Code showing such purchase, together with evidence of 3,274
payment thereof. After consideration of such application and 3,275
statement, the commissioner shall determine the amount of refund 3,276
due and certify such amount to the director of budget and 3,277
management and treasurer of state for payment from the tax refund 3,278
fund created by section 5703.052 of the Revised Code. No refund 3,279
shall be authorized or paid under this section on a single claim 3,280
for tax on fewer than one hundred gallons of motor fuel. The 3,282
commissioner may require that the application be supported by the 3,283
affidavit of the claimant. The refund authorized by this section 3,284
shall be reduced by the cents per gallon amount of any qualified 3,285
fuel credit received under section 5735.145 of the Revised Code, 3,286
as determined by the commissioner, for each gallon of qualified 3,287
fuel included in the total gallonage of motor fuel upon which the 3,288
refund is computed.
The right to receive any refund under this section is not 3,290
assignable. The payment of this refund shall not be made to any 3,291
person other than the person originally entitled thereto who used 3,292
the motor fuel upon which the claim for refund is based, except 3,294
that such refunds when allowed and certified as provided in this 3,295
section may be paid to the executor, the administrator, the 3,296
receiver, the trustee in bankruptcy, or the assignee in
insolvency proceedings of such person. 3,297
Sec. 5735.141. Any retail dealer of motor fuel shall 3,307
receive a refund for Ohio motor fuel taxes paid on fuel lost by a 3,308
76
retail dealer through shrinkage and evaporation. This refund 3,310
shall be one per cent of the Ohio motor fuel taxes paid on fuel 3,311
purchased during any semiannual period ending the thirtieth day 3,312
of June or the thirty-first day of December. 3,313
In order to receive a refund the retail dealer shall file 3,316
with the tax commissioner, within sixty ONE HUNDRED TWENTY days 3,317
after the thirtieth day of June and the thirty-first day of 3,319
December of each year, an application for a refund stating the 3,320
quantity of motor fuel which was purchased for resale by the 3,321
applicant during the preceding semiannual period ending the 3,322
thirtieth day of June or the thirty-first day of December and 3,323
upon which the motor fuel tax has been paid. No person shall 3,324
file a claim for the tax on fewer than one hundred gallons of 3,325
motor fuel. The form and contents of the application shall be 3,326
prescribed by the tax commissioner, and the application shall be 3,327
signed in accordance with section 5703.25 of the Revised Code. 3,328
The tax commissioner shall certify the amount of the refund to 3,329
the director of budget and management and treasurer of state for 3,330
payment from the tax refund fund provided for by section 5703.052 3,331
of the Revised Code. No refund shall be authorized or ordered 3,332
under this section for any single claim for the tax on fewer than 3,333
one hundred gallons of motor fuel. The refund authorized by this 3,335
section shall be reduced by the cents per gallon amount of any 3,336
qualified fuel credit received under section 5735.145 of the 3,337
Revised Code, as determined by the commissioner, for each gallon 3,338
of qualified fuel included in the total gallonage of motor fuel 3,339
upon which the refund is computed.
The right to receive any refund under this section is not 3,341
assignable. The payment of the refund shall not be made to any 3,342
person other than the retail dealer originally entitled thereto, 3,344
except that the refund may be paid to the executor, 3,345
administrator, receiver, trustee in bankruptcy, or assignee in 3,346
insolvency proceedings of such retailer. 3,347
A motor fuel dealer shall be deemed to be a retail dealer 3,350
77
when acting in a retail capacity. 3,351
Sec. 5735.142. Any person who uses any motor fuel, on 3,361
which the tax imposed by sections 5735.05, 5735.25, and 5735.29 3,362
of the Revised Code has been paid, for the purpose of operating a 3,363
transit bus shall be reimbursed in the amount of the tax paid on 3,364
motor fuel used by public transportation systems providing 3,365
transit or paratransit service on a regular and continuing basis 3,366
within the state.
Such person shall file with the tax commissioner an 3,368
application for refund within one hundred eighty days YEAR from 3,369
the date of purchase, stating the quantity of fuel used for 3,371
operating transit buses used by local transit systems in 3,372
furnishing scheduled common carrier, public passenger land 3,373
transportation service along regular routes primarily in one or 3,374
more municipal corporations, except that no person shall file a 3,375
claim for the tax on fewer than one hundred gallons of motor 3,376
fuel. The application shall be accompanied by the statement 3,378
described in section 5735.15 of the Revised Code showing the 3,379
purchase, together with evidence of payment thereof. After
consideration of the application and statement, the commissioner 3,381
shall determine the amount of refund due and shall certify such
amount to the director of budget and management and treasurer of 3,383
state for payment from the tax refund fund provided for in 3,384
section 5703.052 of the Revised Code. The commissioner may 3,385
require that the application be supported by the affidavit of the 3,386
claimant. No refund shall be authorized or ordered for any 3,387
single claim for the tax on fewer than one hundred gallons of 3,388
motor fuel. The refund authorized by this section shall be 3,389
reduced by the cents per gallon amount of any qualified fuel 3,390
credit received under section 5735.145 of the Revised Code, as 3,391
determined by the commissioner, for each gallon of qualified fuel 3,392
included in the total gallonage of motor fuel upon which the 3,393
refund is computed.
The right to receive any refund under this section is not 3,395
78
assignable. The payment of this refund shall not be made to any 3,396
person other than the person originally entitled thereto who used 3,397
the motor fuel upon which the claim for refund is based, except 3,399
that the refund when allowed and certified, as provided in this 3,400
section, may be paid to the executor, the administrator, the
receiver, the trustee in bankruptcy, or the assignee in 3,401
insolvency proceedings of the person. 3,402
Sec. 5735.145. (A) As used in this section and sections 3,411
5735.13, 5735.14, 5735.141, AND 5735.142, and 5735.17 of the 3,413
Revised Code:
(1) "Qualified fuel" means ethanol that is to be combined 3,415
with gasoline to create a blend of not more than ten per cent by 3,416
volume of ethanol and that when so blended is used, sold, or 3,417
distributed as a motor fuel. 3,418
(2) "Ethanol" means: 3,420
(a) Ethanol produced in a manufacturing facility with an 3,422
annual production capacity of less than two million gallons from 3,423
wood or the grain of a cereal grass and denatured in accordance 3,424
with United States bureau of alcohol and tax regulations; or 3,425
(b) Ethanol produced through a coal-fired process from 3,427
wood or the grain of a cereal grass and denatured in accordance 3,428
with United States bureau of alcohol and tax regulations. 3,429
(B) Any motor fuel dealer shall receive a qualified fuel 3,433
credit on each gallon of qualified fuel used, sold, or 3,434
distributed by the dealer and on which the dealer is liable for 3,435
the taxes imposed by this chapter of the Revised Code. To
receive a credit, the dealer shall certify on the monthly report 3,438
required by section 5735.06 of the Revised Code the number of 3,439
gallons of qualified fuel used, sold, or distributed during the 3,440
month to which the report applies and upon which such taxes are 3,441
imposed. After computation of the amount of the tax in 3,442
accordance with division (B) of section 5735.06 of the Revised 3,443
Code, the number of gallons of qualified fuel used, sold, or 3,444
distributed during the month to which the report applies and 3,445
79
included in the gallons of motor fuel upon which the tax is 3,446
imposed shall be multiplied by ten cents per gallon. The 3,447
resulting product shall be subtracted from the tax computed under 3,448
division (B) of section 5735.06 of the Revised Code and shall 3,449
constitute the qualified fuel credit provided by this section. 3,450
(C) The aggregate amount of credits permitted under this 3,452
section shall be subject to the limitations prescribed in this 3,453
division. 3,454
(1) Beginning July 1, 1993, and ending June 30, 1997, for 3,457
each fiscal year, the credit shall not exceed a total of fifteen 3,458
million dollars, and for each month of each such year shall not 3,459
exceed the amount specified for that month as follows: 3,460
July $1,390,125 January $1,133,625 3,462
August 1,312,125 February 1,106,625 3,463
September 1,229,625 March 1,211,625 3,464
October 1,268,625 April 1,192,125 3,465
November 1,235,625 May 1,270,125 3,466
December 1,280,625 June 1,369,125 3,467
(2) If in any month the credit is less than the limit set 3,470
forth for that month, the unused portion shall be carried forward 3,471
and added to the succeeding month's limit until the end of the 3,472
fiscal year. 3,473
(3) If in any month the credit, including any amount 3,475
carried forward from a preceding month, exceeds the limit for 3,476
that month by less than five per cent, the tax commissioner shall 3,477
either reduce the limit for the succeeding month by the amount of 3,478
the excess, or collect the excess from each motor fuel dealer, 3,479
apportioning the amount collected among motor fuel dealers in 3,480
proportion to the amount of credit claimed by each motor fuel 3,481
dealer for that month.
If in any month the credit, including any amount carried 3,483
forward from a preceding month, exceeds the limit for that month 3,484
by five per cent or more, the tax commissioner shall collect the 3,485
excess from each motor fuel dealer, apportioning the amount 3,486
80
collected among motor fuel dealers in proportion to the amount of 3,487
credit claimed by each motor fuel dealer for that month. 3,488
(4) Any credit in excess of the amounts prescribed in this 3,490
section and subject to collection by the tax commissioner 3,491
pursuant to division (C)(2) or (3) of this section shall be paid 3,492
to the treasurer of state as revenue arising from taxes imposed 3,493
under this chapter and is subject to assessment as provided in 3,494
sections 5735.12 and 5735.121 of the Revised Code. 3,495
Sec. 5735.18. Any person other than a motor fuel dealer 3,504
who purchases motor fuel upon which the tax has been paid to this 3,506
state and who sells the same outside this state for use outside 3,507
this state or who uses the same on highways or waters outside 3,508
this state and pays a tax on such use or sells the same to the 3,509
United States government or any of its agencies may be reimbursed 3,510
in the amount of such tax as provided in this chapter. All
claims for refund of the tax paid on motor fuel sold for export 3,512
from the state or sold to the United States or any of its 3,513
agencies shall be made in such form and shall set forth such
information as the tax commissioner prescribes, and the claimant 3,514
shall satisfy the commissioner that the motor fuel has been sold 3,516
as stated and that the tax thereon has been paid. Claims for
refund of the tax paid on motor fuel sold to the United States 3,518
government or any of its agencies shall be supported by an 3,519
affidavit of the claimant and by a tax exemption certificate 3,520
executed by the vendee in such form as is prescribed by the 3,521
commissioner. Such claims for refund filed under this section 3,522
shall be certified and paid in the same manner as provided in 3,523
section 5735.14 of the Revised Code. The person shall file with 3,524
the tax commissioner an application for refund within one hundred
eighty days YEAR from the date of sale. The refund authorized by 3,527
this section shall be reduced by the cents per gallon amount of 3,528
any qualified fuel credit received under section 5735.145 of the 3,529
Revised Code, as determined by the commissioner, for each gallon 3,530
of qualified fuel included in the total gallonage of motor fuel 3,531
81
upon which the refund is computed.
Sec. 5735.23. (A) Out of receipts from the tax levied by 3,540
section 5735.05 of the Revised Code, the treasurer of state shall 3,541
place to the credit of the tax refund fund established by section 3,542
5703.052 of the Revised Code amounts equal to the refunds 3,543
certified by the tax commissioner pursuant to sections 5735.13, 3,544
5735.14, 5735.141, 5735.142, AND 5735.16, and 5735.17 of the 3,545
Revised Code. The treasurer of state shall then transfer the 3,546
amount required by section 5735.051 of the Revised Code to the 3,548
waterways safety fund and the amount required by section 4907.472 3,549
of the Revised Code to the grade crossing protection fund. 3,550
(B) Except as provided in division (D) of this section, 3,553
each month the balance of the receipts from the tax levied by 3,554
section 5735.05 of the Revised Code shall be credited, after 3,555
receipt by the treasurer of state of certification from the 3,557
commissioners of the sinking fund, as required by section 5528.35 3,558
of the Revised Code, that there are sufficient moneys to the 3,560
credit of the highway obligations bond retirement fund to meet in 3,561
full all payments of interest, principal, and charges for the 3,562
retirement of highway obligations issued pursuant to Section 2i 3,563
of Article VIII, Ohio Constitution, and sections 5528.30 and 3,564
5528.31 of the Revised Code due and payable during the current 3,565
calendar year, as follows: 3,566
(1) To the state and local government highway distribution 3,568
fund, which is hereby created in the state treasury, an amount 3,569
that is the same percentage of the balance to be credited as that 3,570
portion of the tax per gallon determined under division (B)(2)(a) 3,571
of section 5735.06 of the Revised Code is of the total tax per 3,572
gallon determined under divisions (B)(2)(a) and (b) of that 3,573
section. 3,574
(2) After making the distribution to the state and local 3,576
government highway distribution fund, the remainder shall be 3,577
credited as follows: 3,578
(a) Thirty per cent to the gasoline excise tax fund for 3,580
82
distribution pursuant to division (A)(1) of section 5735.27 of 3,581
the Revised Code; 3,582
(b) Twenty-five per cent to the gasoline excise tax fund 3,584
for distribution pursuant to division (A)(3) of section 5735.27 3,585
of the Revised Code; 3,586
(c) Except as provided in division (D) of this section, 3,589
forty-five per cent to the highway operating fund for
distribution pursuant to division (B)(1) of section 5735.27 of 3,590
the Revised Code. 3,591
(C) From the balance in the state and local government 3,593
highway distribution fund on the last day of each month there 3,594
shall be paid the following amounts: 3,595
(1) To the local transportation improvement program fund 3,597
created by section 164.14 of the Revised Code, an amount equal to 3,598
a fraction of the balance in the state and local government 3,599
highway distribution fund, the numerator of which fraction is one 3,600
and the denominator of which fraction is that portion of the tax 3,601
per gallon determined under division (B)(2)(a) of section 5735.06 3,602
of the Revised Code; 3,603
(2) An amount equal to five cents multiplied by the number 3,605
of gallons of motor fuel sold at stations operated by the Ohio 3,607
turnpike commission, such gallonage to be certified by the
commission to the treasurer of state not later than the last day 3,608
of the month following. The funds paid to the commission 3,609
pursuant to this section shall be expended for the construction, 3,610
reconstruction, maintenance, and repair of turnpike projects, 3,611
except that the funds may not be expended for the construction of 3,612
new interchanges. The funds also may be expended for the 3,613
construction, reconstruction, maintenance, and repair of those 3,614
portions of connecting public roads that serve existing 3,615
interchanges and are determined by the commission and the 3,616
director of transportation to be necessary for the safe merging 3,617
of traffic between the turnpike and those public roads. 3,618
The remainder of the balance shall be distributed as 3,620
83
follows on the fifteenth day of the following month: 3,621
(a) Ten and seven-tenths per cent shall be paid to 3,623
municipal corporations for distribution pursuant to division 3,624
(A)(1) of section 5735.27 of the Revised Code and may be used for 3,625
any purpose for which payments received under that division may 3,626
be used. 3,627
(b) Five per cent shall be paid to townships for 3,629
distribution pursuant to division (A)(5) of section 5735.27 of 3,630
the Revised Code and may be used for any purpose for which 3,631
payments received under that division may be used. 3,632
(c) Nine and three-tenths per cent shall be paid to 3,634
counties for distribution pursuant to division (A)(3) of section 3,635
5735.27 of the Revised Code and may be used for any purpose for 3,636
which payments received under that division may be used. 3,637
(d) Except as provided in division (D) of this section, 3,640
the balance shall be transferred to the highway operating fund 3,641
and used for the purposes set forth in division (B)(1) of section 3,642
5735.27 of the Revised Code.
(D) Beginning on the first day of September each year and 3,645
continuing until such time as the office of budget and management
receives certification from the commissioners of the sinking fund 3,646
pursuant to division (B) of section 5528.56 of the Revised Code, 3,647
any amounts required to be credited or transferred to the highway 3,648
operating fund pursuant to division (B)(2)(c) or (C)(2)(d) of 3,649
this section shall be credited or transferred to the highway 3,650
capital improvements bond service fund created in section 5528.55 3,651
of the Revised Code.
Sec. 5739.01. As used in this chapter: 3,660
(A) "Person" includes individuals, receivers, assignees, 3,662
trustees in bankruptcy, estates, firms, partnerships, 3,663
associations, joint-stock companies, joint ventures, clubs, 3,664
societies, corporations, the state and its political 3,665
subdivisions, and combinations of individuals of any form. 3,666
(B) "Sale" and "selling" include all of the following 3,668
84
transactions for a consideration in any manner, whether 3,669
absolutely or conditionally, whether for a price or rental, in 3,670
money or by exchange, and by any means whatsoever: 3,671
(1) All transactions by which title or possession, or 3,673
both, of tangible personal property, is or is to be transferred, 3,674
or a license to use or consume tangible personal property is or 3,675
is to be granted; 3,676
(2) All transactions by which lodging by a hotel is or is 3,678
to be furnished to transient guests; 3,679
(3) All transactions by which: 3,681
(a) An item of tangible personal property is or is to be 3,683
repaired, except property, the purchase of which would be exempt 3,684
from the tax imposed by section 5739.02 of the Revised Code; 3,685
(b) An item of tangible personal property is or is to be 3,687
installed, except property, the purchase of which would be exempt 3,688
from the tax imposed by section 5739.02 of the Revised Code or 3,689
property that is or is to be incorporated into and will become a 3,690
part of a production, transmission, transportation, or 3,691
distribution system for the delivery of a public utility service; 3,692
(c) The service of washing, cleaning, waxing, polishing, 3,694
or painting a motor vehicle is or is to be furnished; 3,695
(d) Industrial laundry cleaning services are or are to be 3,697
provided; 3,698
(e) Automatic data processing, computer services, or 3,700
electronic information services are or are to be provided for use 3,701
in business when the true object of the transaction is the 3,702
receipt by the consumer of automatic data processing, computer 3,703
services, or electronic information services rather than the 3,704
receipt of personal or professional services to which automatic 3,705
data processing, computer services, or electronic information 3,706
services are incidental or supplemental. Notwithstanding any 3,707
other provision of this chapter, such transactions that occur 3,708
between members of an affiliated group are not sales. An 3,709
affiliated group means two or more persons related in such a way 3,710
85
that one person owns or controls the business operation of 3,711
another member of the group. In the case of corporations with 3,712
stock, one corporation owns or controls another if it owns more 3,713
than fifty per cent of the other corporation's common stock with 3,714
voting rights. 3,715
(f) Telecommunications service is provided that originates 3,718
or terminates in this state and is charged in the records of the 3,719
telecommunications service vendor to the consumer's telephone 3,720
number or account in this state, or that both originates and 3,721
terminates in this state; but does not include transactions by 3,722
which telecommunications service is paid for by using a prepaid 3,723
authorization number or prepaid telephone calling card; 3,724
(g) Landscaping and lawn care service is or is to be 3,726
provided; 3,727
(h) Private investigation and security service is or is to 3,729
be provided; 3,730
(i) Information services or tangible personal property is 3,732
provided or ordered by means of a nine hundred telephone call; 3,733
(j) Building maintenance and janitorial service is or is 3,735
to be provided; 3,736
(k) Employment service is or is to be provided; 3,738
(l) Employment placement service is or is to be provided; 3,740
(m) Exterminating service is or is to be provided; 3,742
(n) Physical fitness facility service is or is to be 3,744
provided; 3,745
(o) Recreation and sports club service is or is to be 3,747
provided. 3,748
(4) All transactions by which printed, imprinted, 3,750
overprinted, lithographic, multilithic, blueprinted, photostatic, 3,751
or other productions or reproductions of written or graphic 3,752
matter are or are to be furnished or transferred; 3,753
(5) The production or fabrication of tangible personal 3,755
property for a consideration for consumers who furnish either 3,756
directly or indirectly the materials used in the production of 3,757
86
fabrication work; and include the furnishing, preparing, or 3,758
serving for a consideration of any tangible personal property 3,759
consumed on the premises of the person furnishing, preparing, or 3,760
serving such tangible personal property. Except as provided in 3,761
section 5739.03 of the Revised Code, a construction contract 3,762
pursuant to which tangible personal property is or is to be 3,763
incorporated into a structure or improvement on and becoming a 3,764
part of real property is not a sale of such tangible personal 3,765
property. The construction contractor is the consumer of such 3,766
tangible personal property, provided that the sale and 3,767
installation of carpeting, the sale and installation of 3,768
agricultural land tile, the sale and erection or installation of 3,769
portable grain bins, or the provision of landscaping and lawn 3,770
care service and the transfer of property as part of such service 3,771
is never a construction contract. The transfer of copyrighted 3,772
motion picture films for exhibition purposes is not a sale, 3,773
except such films as are used solely for advertising purposes. 3,774
Other than as provided in this section, "sale" and "selling" do 3,775
not include professional, insurance, or personal service 3,776
transactions which involve the transfer of tangible personal 3,777
property as an inconsequential element, for which no separate 3,778
charges are made. 3,779
As used in division (B)(5) of this section: 3,781
(a) "Agricultural land tile" means fired clay or concrete 3,783
tile, or flexible or rigid perforated plastic pipe or tubing, 3,784
incorporated or to be incorporated into a subsurface drainage 3,785
system appurtenant to land used or to be used directly in 3,786
production by farming, agriculture, horticulture, or 3,787
floriculture. The term does not include such materials when they 3,788
are or are to be incorporated into a drainage system appurtenant 3,789
to a building or structure even if the building or structure is 3,790
used or to be used in such production. 3,791
(b) "Portable grain bin" means a structure that is used or 3,793
to be used by a person engaged in farming or agriculture to 3,794
87
shelter the person's grain and that is designed to be 3,795
disassembled without significant damage to its component parts. 3,796
(6) All transactions in which all of the shares of stock 3,798
of a closely held corporation are transferred, if the corporation 3,799
is not engaging in business and its entire assets consist of 3,800
boats, planes, motor vehicles, or other tangible personal 3,801
property operated primarily for the use and enjoyment of the 3,802
shareholders; 3,803
(7) All transactions in which a warranty, maintenance or 3,805
service contract, or similar agreement by which the vendor of the 3,806
warranty, contract, or agreement agrees to repair or maintain the 3,807
tangible personal property of the consumer is or is to be 3,808
provided; 3,809
(8) All transactions by which a prepaid authorization 3,811
number or a prepaid telephone calling card is or is to be 3,812
transferred. 3,813
(C) "Vendor" means the person providing the service or by 3,815
whom the transfer effected or license given by a sale is or is to 3,816
be made or given and, for sales described in division (B)(3)(i) 3,817
of this section, the telecommunications service vendor that 3,818
provides the nine hundred telephone service; if two or more 3,819
persons are engaged in business at the same place of business 3,820
under a single trade name in which all collections on account of 3,821
sales by each are made, such persons shall constitute a single 3,822
vendor. 3,823
Physicians, dentists, hospitals, and veterinarians who are 3,825
engaged in selling tangible personal property as received from 3,826
others, such as eyeglasses, mouthwashes, dentifrices, or similar 3,827
articles, are vendors. Veterinarians who are engaged in 3,828
transferring to others for a consideration drugs, the dispensing 3,829
of which does not require an order of a licensed veterinarian or 3,830
physician under federal law, are vendors. 3,831
(D)(1) "Consumer" means the person for whom the service is 3,833
provided, to whom the transfer effected or license given by a 3,834
88
sale is or is to be made or given, to whom the service described 3,835
in division (B)(3)(f) or (i) of this section is charged, or to 3,836
whom the admission is granted. 3,837
(2) Physicians, dentists, hospitals, and blood banks 3,839
operated by nonprofit institutions and persons licensed to 3,840
practice veterinary medicine, surgery, and dentistry are 3,841
consumers of all tangible personal property and services 3,842
purchased by them in connection with the practice of medicine, 3,843
dentistry, the rendition of hospital or blood bank service, or 3,844
the practice of veterinary medicine, surgery, and dentistry. In 3,845
addition to being consumers of drugs administered by them or by 3,846
their assistants according to their direction, veterinarians also 3,847
are consumers of drugs that under federal law may be dispensed 3,848
only by or upon the order of a licensed veterinarian or 3,849
physician, when transferred by them to others for a consideration 3,850
to provide treatment to animals as directed by the veterinarian. 3,851
(3) A person who performs a facility management, or 3,853
similar service contract for a contractee is a consumer of all 3,854
tangible personal property and services purchased for use in 3,855
connection with the performance of such contract, regardless of 3,856
whether title to any such property vests in the contractee. The 3,857
purchase of such property and services is not subject to the 3,858
exception for resale under division (E)(1) of this section. 3,859
(4)(a) In the case of a person who purchases printed 3,861
matter for the purpose of distributing it or having it 3,862
distributed to the public or to a designated segment of the 3,863
public, free of charge, that person is the consumer of that 3,864
printed matter, and the purchase of that printed matter for that 3,865
purpose is a sale.
(b) In the case of a person who produces, rather than 3,867
purchases, printed matter for the purpose of distributing it or 3,868
having it distributed to the public or to a designated segment of 3,869
the public, free of charge, that person is the consumer of all 3,870
tangible personal property and services purchased for use or 3,871
89
consumption in the production of that printed matter. That 3,872
person is not entitled to claim exception under division (E)(8) 3,873
of this section for any material incorporated into the printed
matter or any equipment, supplies, or services primarily used to 3,874
produce the printed matter. 3,875
(c) The distribution of printed matter to the public or to 3,878
a designated segment of the public, free of charge, is not a sale 3,879
to the members of the public to whom the printed matter is 3,880
distributed or to any persons who purchase space in the printed
matter for advertising or other purposes. 3,881
(5) A person who makes sales of any of the services listed 3,883
in division (B)(3) of this section is the consumer of any 3,884
tangible personal property used in performing the service. The 3,885
purchase of that property is not subject to the resale exception 3,886
under division (E)(1) of this section. 3,887
(E) "Retail sale" and "sales at retail" include all sales 3,889
except those in which the purpose of the consumer is: 3,890
(1) To resell the thing transferred or benefit of the 3,892
service provided, by a person engaging in business, in the form 3,893
in which the same is, or is to be, received by the person; 3,894
(2) To incorporate the thing transferred as a material or 3,896
a part, into tangible personal property to be produced for sale 3,897
by manufacturing, assembling, processing, or refining, or to use 3,898
or consume the thing transferred directly in producing a product 3,899
for sale by mining, including without limitation the extraction 3,901
from the earth of all substances which are classed geologically 3,902
as minerals, production of crude oil and natural gas, farming, 3,903
agriculture, horticulture, or floriculture, and persons engaged 3,904
in rendering farming, agricultural, horticultural, or 3,905
floricultural services, and services in the exploration for, and 3,906
production of, crude oil and natural gas, for others are deemed 3,907
engaged directly in farming, agriculture, horticulture, and 3,908
floriculture, or exploration for, and production of, crude oil 3,909
and natural gas; directly in the rendition of a public utility 3,910
90
service, except that the sales tax levied by section 5739.02 of 3,911
the Revised Code shall be collected upon all meals, drinks, and 3,912
food for human consumption sold upon Pullman and railroad 3,913
coaches. This paragraph does not exempt or except from "retail 3,914
sale" or "sales at retail" the sale of tangible personal property 3,915
that is to be incorporated into a structure or improvement to 3,916
real property.
(3) To hold the thing transferred as security for the 3,918
performance of an obligation of the vendor; 3,919
(4) To use or consume the thing transferred in the process 3,921
of reclamation as required by Chapters 1513. and 1514. of the 3,922
Revised Code; 3,923
(5) To resell, hold, use, or consume the thing transferred 3,925
as evidence of a contract of insurance; 3,926
(6) To use or consume the thing directly in commercial 3,928
fishing; 3,929
(7) To incorporate the thing transferred as a material or 3,931
a part into, or to use or consume the thing transferred directly 3,932
in the production of, magazines distributed as controlled 3,933
circulation publications; 3,934
(8) To use or consume the thing transferred in the 3,936
production and preparation in suitable condition for market and 3,937
sale of printed, imprinted, overprinted, lithographic, 3,938
multilithic, blueprinted, photostatic, or other productions or 3,939
reproductions of written or graphic matter; 3,940
(9) To use the thing transferred, as described in section 3,942
5739.011 of the Revised Code, primarily in a manufacturing 3,943
operation to produce tangible personal property for sale; 3,944
(10) To use the benefit of a warranty, maintenance or 3,946
service contract, or similar agreement, as defined in division 3,947
(B)(7) of this section, to repair or maintain tangible personal 3,948
property, if all of the property that is the subject of the 3,949
warranty, contract, or agreement would be exempt on its purchase 3,950
from the tax imposed by section 5739.02 of the Revised Code; 3,951
91
(11) To use the thing transferred as qualified research 3,953
and development equipment; 3,954
(12) To use or consume the thing transferred primarily in 3,955
storing, transporting, mailing, or otherwise handling purchased 3,956
sales inventory in a warehouse, distribution center, or similar 3,957
facility when the inventory is primarily distributed outside this 3,958
state to retail stores of the person who owns or controls the 3,959
warehouse, distribution center, or similar facility, to retail 3,960
stores of an affiliated group of which that person is a member, 3,961
or by means of direct marketing. Division (E)(12) of this 3,962
section does not apply to motor vehicles registered for operation 3,963
on the public highways. As used in division (E)(12) of this 3,964
section, "affiliated group" has the same meaning as in division 3,965
(B)(3)(e) of this section and "direct marketing" has the same 3,966
meaning as in division (B)(37) of section 5739.02 of the Revised 3,967
Code. 3,968
(13) To use or consume the thing transferred to fulfill a 3,970
contractual obligation incurred by a warrantor pursuant to a 3,971
warranty provided as a part of the price of the tangible personal 3,972
property sold or by a vendor of a warranty, maintenance or 3,973
service contract, or similar agreement the provision of which is 3,974
defined as a sale under division (B)(7) of this section; 3,975
(14) To use or consume the thing transferred in the 3,977
production of a newspaper for distribution to the public; 3,978
(15) To use tangible personal property to perform a 3,980
service listed in division (B)(3) of this section, if the 3,981
property is or is to be permanently transferred to the consumer 3,982
of the service as an integral part of the performance of the 3,983
service.
As used in division (E) of this section, "thing" includes 3,985
all transactions included in divisions (B)(3)(a), (b), and (e) of 3,987
this section.
Sales conducted through a coin-operated device that 3,989
activates vacuum equipment or equipment that dispenses water, 3,990
92
whether or not in combination with soap or other cleaning agents 3,991
or wax, to the consumer for the consumer's use on the premises in 3,993
washing, cleaning, or waxing a motor vehicle, provided no other
personal property or personal service is provided as part of the 3,994
transaction, are not retail sales or sales at retail. 3,995
(F) "Business" includes any activity engaged in by any 3,997
person with the object of gain, benefit, or advantage, either 3,998
direct or indirect. "Business" does not include the activity of 3,999
a person in managing and investing the person's own funds. 4,000
(G) "Engaging in business" means commencing, conducting, 4,002
or continuing in business, and liquidating a business when the 4,003
liquidator thereof holds self out to the public as conducting 4,005
such business. Making a casual sale is not engaging in business.
(H)(1) "Price," except as provided in divisions (H)(2) and 4,007
(3) of this section, means the aggregate value in money of 4,008
anything paid or delivered, or promised to be paid or delivered, 4,009
in the complete performance of a retail sale, without any 4,010
deduction on account of the cost of the property sold, cost of 4,011
materials used, labor or service cost, interest, discount paid or 4,012
allowed after the sale is consummated, or any other expense. If 4,013
the retail sale consists of the rental or lease of tangible 4,014
personal property, "price" means the aggregate value in money of 4,015
anything paid or delivered, or promised to be paid or delivered, 4,016
in the complete performance of the rental or lease, without any 4,017
deduction for tax, interest, labor or service charge, damage 4,018
liability waiver, termination or damage charge, discount paid or 4,019
allowed after the lease is consummated, or any other expense. 4,020
The sales tax shall be calculated and collected by the lessor on 4,021
each payment made by the lessee. Price does not include the 4,022
consideration received as a deposit refundable to the consumer 4,023
upon return of a beverage container, the consideration received 4,024
as a deposit on a carton or case that is used for such returnable 4,025
containers, or the consideration received as a refundable 4,026
security deposit for the use of tangible personal property to the 4,027
93
extent that it actually is refunded, if the consideration for 4,028
such refundable deposit is separately stated from the 4,029
consideration received or to be received for the tangible 4,030
personal property transferred in the retail sale. Such 4,031
separation must appear in the sales agreement or on the initial 4,032
invoice or initial billing rendered by the vendor to the 4,033
consumer. Price is the amount received inclusive of the tax, 4,034
provided the vendor establishes to the satisfaction of the tax 4,035
commissioner that the tax was added to the price. When the price 4,036
includes both a charge for tangible personal property and a 4,037
charge for providing a service and the sale of the property and 4,038
the charge for the service are separately taxable, or have a 4,039
separately determinable tax status, the price shall be separately 4,040
stated for each such charge so the tax can be correctly computed 4,041
and charged. 4,042
The tax collected by the vendor from the consumer under 4,044
this chapter is not part of the price, but is a tax collection 4,045
for the benefit of the state and of counties levying an 4,046
additional sales tax pursuant to section 5739.021 or 5739.026 of 4,047
the Revised Code and of transit authorities levying an additional 4,048
sales tax pursuant to section 5739.023 of the Revised Code. 4,049
Except for the discount authorized in section 5739.12 of the 4,050
Revised Code, no person other than the state or such a county or 4,051
transit authority shall derive any benefit from the collection or 4,052
payment of such tax. 4,053
(2) In the case of a sale of any new motor vehicle by a 4,055
new motor vehicle dealer, as defined in section 4517.01 of the 4,056
Revised Code, in which another motor vehicle is accepted by the 4,057
dealer as part of the consideration received, "price" has the 4,058
same meaning as in division (H)(1) of this section, reduced by 4,059
the credit afforded the consumer by the dealer for the motor 4,060
vehicle received in trade. 4,061
(3) In the case of a sale of any watercraft or outboard 4,063
motor by a watercraft dealer licensed in accordance with section 4,064
94
1547.543 of the Revised Code, in which another watercraft, 4,065
watercraft and trailer, or outboard motor is accepted by the 4,066
dealer as part of the consideration received, "price" has the 4,067
same meaning as in division (H)(1) of this section, reduced by 4,068
the credit afforded the consumer by the dealer for the 4,069
watercraft, watercraft and trailer, or outboard motor received in 4,070
trade. As used in division (H)(3) of this section, "watercraft" 4,071
includes an outdrive unit attached to the watercraft. 4,072
(I) "Receipts" means the total amount of the prices of the 4,074
sales of vendors, provided that cash discounts allowed and taken 4,075
on sales at the time they are consummated are not included, minus 4,076
any amount deducted as a bad debt pursuant to section 5739.121 of 4,077
the Revised Code. "Receipts" does not include the sale price of 4,078
property returned or services rejected by consumers when the full 4,079
sale price and tax are refunded either in cash or by credit. 4,080
(J) "Place of business" means any location at which a 4,082
person engages in business. 4,083
(K) "Premises" includes any real property or portion 4,085
thereof upon which any person engages in selling tangible 4,086
personal property at retail or making retail sales and also 4,087
includes any real property or portion thereof designated for, or 4,088
devoted to, use in conjunction with the business engaged in by 4,089
such person. 4,090
(L) "Casual sale" means a sale of an item of tangible 4,092
personal property which was obtained by the person making the 4,093
sale, through purchase or otherwise, for the person's own use in 4,094
this state and which was previously subject to the ANY state's 4,095
taxing jurisdiction on its sale or use, and includes such items 4,096
acquired for the seller's use which are sold by an auctioneer 4,097
employed directly by the person for such purpose, provided the 4,098
location of such sales is not the auctioneer's permanent place of 4,099
business. As used in this division, "permanent place of business" 4,100
includes any location where such auctioneer has conducted more 4,101
than two auctions during the year. 4,102
95
(M) "Hotel" means every establishment kept, used, 4,104
maintained, advertised or held out to the public to be a place 4,105
where sleeping accommodations are offered to guests, in which 4,106
five or more rooms are used for the accommodation of such guests, 4,107
whether such rooms are in one or several structures. 4,108
(N) "Transient guests" means persons occupying a room or 4,110
rooms for sleeping accommodations for less than thirty 4,111
consecutive days. 4,112
(O) "Making retail sales" means the effecting of 4,114
transactions wherein one party is obligated to pay the price and 4,115
the other party is obligated to provide a service or to transfer 4,116
title to or possession of the item sold. "Making retail sales" 4,117
does not include the preliminary acts of promoting or soliciting 4,118
the retail sales, other than the distribution of printed matter 4,119
which displays or describes and prices the item offered for sale, 4,120
nor does it include delivery of a predetermined quantity of 4,121
tangible personal property or transportation of property or 4,122
personnel to or from a place where a service is performed, 4,123
regardless of whether the vendor is a delivery vendor. 4,124
(P) "Used directly in the rendition of a public utility 4,126
service" means that property which is to be incorporated into and 4,127
will become a part of the consumer's production, transmission, 4,128
transportation, or distribution system and which retains its 4,129
classification as tangible personal property after such 4,130
incorporation; fuel or power used in the production, 4,131
transmission, transportation, or distribution system; and 4,132
tangible personal property used in the repair and maintenance of 4,133
the production, transmission, transportation, or distribution 4,134
system, including only such motor vehicles as are specially 4,135
designed and equipped for such use. Tangible personal property 4,136
and services used primarily in providing highway transportation 4,137
for hire are not used in providing a public utility service as 4,138
defined in this division. 4,139
(Q) "Refining" means removing or separating a desirable 4,141
96
product from raw or contaminated materials by distillation or 4,142
physical, mechanical, or chemical processes. 4,143
(R) "Assembly" and "assembling" mean attaching or fitting 4,145
together parts to form a product, but do not include packaging a 4,146
product. 4,147
(S) "Manufacturing operation" means a process in which 4,149
materials are changed, converted, or transformed into a different 4,150
state or form from which they previously existed and includes 4,151
refining materials, assembling parts, and preparing raw materials 4,152
and parts by mixing, measuring, blending, or otherwise committing 4,153
such materials or parts to the manufacturing process. 4,154
"Manufacturing operation" does not include packaging. 4,155
(T) "Fiscal officer" means, with respect to a regional 4,157
transit authority, the secretary-treasurer thereof, and with 4,158
respect to a county which is a transit authority, the fiscal 4,159
officer of the county transit board if one is appointed pursuant 4,160
to section 306.03 of the Revised Code or the county auditor if 4,161
the board of county commissioners operates the county transit 4,162
system.
(U) "Transit authority" means a regional transit authority 4,164
created pursuant to section 306.31 of the Revised Code or a 4,165
county in which a county transit system is created pursuant to 4,166
section 306.01 of the Revised Code. For the purposes of this 4,167
chapter, a transit authority must extend to at least the entire 4,168
area of a single county. A transit authority which includes 4,169
territory in more than one county must include all the area of 4,170
the most populous county which is a part of such transit 4,171
authority. County population shall be measured by the most 4,172
recent census taken by the United States census bureau. 4,173
(V) "Legislative authority" means, with respect to a 4,175
regional transit authority, the board of trustees thereof, and 4,176
with respect to a county which is a transit authority, the board 4,177
of county commissioners. 4,178
(W) "Territory of the transit authority" means all of the 4,180
97
area included within the territorial boundaries of a transit 4,181
authority as they from time to time exist. Such territorial 4,182
boundaries must at all times include all the area of a single 4,183
county or all the area of the most populous county which is a 4,184
part of such transit authority. County population shall be 4,185
measured by the most recent census taken by the United States 4,186
census bureau. 4,187
(X) "Providing a service" means providing or furnishing 4,189
anything described in division (B)(3) of this section for 4,190
consideration. 4,191
(Y)(1)(a) "Automatic data processing" means processing of 4,193
others' data, including keypunching or similar data entry 4,194
services together with verification thereof, or providing access 4,195
to computer equipment for the purpose of processing data. 4,196
(b) "Computer services" means providing services 4,198
consisting of specifying computer hardware configurations and 4,199
evaluating technical processing characteristics, computer 4,200
programming, and training of computer programmers and operators, 4,201
provided in conjunction with and to support the sale, lease, or 4,202
operation of taxable computer equipment or systems. 4,203
(c) "Electronic information services" means providing 4,205
access to computer equipment by means of telecommunications 4,206
equipment for the purpose of either of the following: 4,207
(i) Examining or acquiring data stored in or accessible to 4,209
the computer equipment; 4,210
(ii) Placing data into the computer equipment to be 4,212
retrieved by designated recipients with access to the computer 4,213
equipment. 4,214
(d) "Automatic data processing, computer services, or 4,216
electronic information services" shall not include personal or 4,217
professional services. 4,218
(2) As used in divisions (B)(3)(e) and (Y)(1) of this 4,220
section, "personal and professional services" means all services 4,221
other than automatic data processing, computer services, or 4,222
98
electronic information services, including but not limited to: 4,223
(a) Accounting and legal services such as advice on tax 4,225
matters, asset management, budgetary matters, quality control, 4,226
information security, and auditing and any other situation where 4,227
the service provider receives data or information and studies, 4,228
alters, analyzes, interprets, or adjusts such material; 4,229
(b) Analyzing business policies and procedures; 4,231
(c) Identifying management information needs; 4,233
(d) Feasibility studies including economic and technical 4,235
analysis of existing or potential computer hardware or software 4,236
needs and alternatives; 4,237
(e) Designing policies, procedures, and custom software 4,239
for collecting business information, and determining how data 4,240
should be summarized, sequenced, formatted, processed, controlled 4,241
and reported so that it will be meaningful to management; 4,242
(f) Developing policies and procedures that document how 4,244
business events and transactions are to be authorized, executed, 4,245
and controlled; 4,246
(g) Testing of business procedures; 4,248
(h) Training personnel in business procedure applications; 4,250
(i) Providing credit information to users of such 4,252
information by a consumer reporting agency, as defined in the 4,253
"Fair Credit Reporting Act," 84 Stat. 1114, 1129 (1970), 15 4,254
U.S.C. 1681a(f), or as hereafter amended, including but not 4,255
limited to gathering, organizing, analyzing, recording, and 4,256
furnishing such information by any oral, written, graphic, or 4,257
electronic medium; 4,258
(j) Providing debt collection services by any oral, 4,260
written, graphic, or electronic means. 4,261
The services listed in divisions (Y)(2)(a) to (j) of this 4,263
section are not automatic data processing or computer services. 4,264
(Z) "Highway transportation for hire" means the 4,266
transportation of personal property belonging to others for 4,267
consideration by any of the following: 4,268
99
(1) The holder of a permit or certificate issued by this 4,270
state or the United States authorizing the holder to engage in 4,271
transportation of personal property belonging to others for 4,272
consideration over or on highways, roadways, streets, or any 4,273
similar public thoroughfare; 4,274
(2) A person who engages in the transportation of personal 4,276
property belonging to others for consideration over or on 4,277
highways, roadways, streets, or any similar public thoroughfare 4,278
but who could not have engaged in such transportation on December 4,279
11, 1985, unless the person was the holder of a permit or 4,280
certificate of the types described in division (Z)(1) of this 4,281
section;
(3) A person who leases a motor vehicle to and operates it 4,283
for a person described by division (Z)(1) or (2) of this section. 4,284
(AA) "Telecommunications service" means the transmission 4,286
of any interactive, two-way electromagnetic communications, 4,287
including voice, image, data, and information, through the use of 4,288
any medium such as wires, cables, microwaves, cellular radio, 4,289
radio waves, light waves, or any combination of those or similar 4,290
media. "Telecommunications service" includes message toll 4,291
service even though the vendor provides the message toll service 4,292
by means of wide area transmission type service or private 4,293
communications service purchased from another telecommunications 4,294
service provider, but does not include any of the following: 4,295
(1) Sales of incoming or outgoing wide area transmission 4,297
service or wide area transmission type service, including eight 4,298
hundred or eight-hundred-type service, to the person contracting 4,299
for the receipt of that service; 4,300
(2) Sales of private communications service to the person 4,302
contracting for the receipt of that service that entitles the 4,303
purchaser to exclusive or priority use of a communications 4,304
channel or group of channels between exchanges; 4,305
(3) Sales of telecommunications service by companies 4,307
subject to the excise tax imposed by Chapter 5727. of the Revised 4,308
100
Code; 4,309
(4) Sales of telecommunications service to a provider of 4,311
telecommunications service, including access services, for use in 4,312
providing telecommunications service; 4,313
(5) Value-added nonvoice services in which computer 4,315
processing applications are used to act on the form, content, 4,316
code, or protocol of the information to be transmitted; 4,317
(6) Transmission of interactive video programming by a 4,319
cable television system as defined in section 505.90 of the 4,320
Revised Code. 4,321
(BB) "Industrial laundry cleaning services" means removing 4,323
soil or dirt from or supplying towels, linens, or articles of 4,324
clothing that belong to others and are used in a trade or 4,325
business. 4,326
(CC) "Magazines distributed as controlled circulation 4,328
publications" means magazines containing at least twenty-four 4,329
pages, at least twenty-five per cent editorial content, issued at 4,330
regular intervals four or more times a year, and circulated 4,331
without charge to the recipient, provided that such magazines are 4,332
not owned or controlled by individuals or business concerns which 4,333
conduct such publications as an auxiliary to, and essentially for 4,334
the advancement of the main business or calling of, those who own 4,335
or control them. 4,336
(DD) "Landscaping and lawn care service" means the 4,338
services of planting, seeding, sodding, removing, cutting, 4,339
trimming, pruning, mulching, aerating, applying chemicals, 4,340
watering, fertilizing, and providing similar services to 4,341
establish, promote, or control the growth of trees, shrubs, 4,342
flowers, grass, ground cover, and other flora, or otherwise 4,343
maintaining a lawn or landscape grown or maintained by the owner 4,344
for ornamentation or other nonagricultural purpose. However, 4,345
"landscaping and lawn care service" does not include the 4,346
providing of such services by a person who has less than five 4,347
thousand dollars in sales of such services during the calendar 4,348
101
year. 4,349
(EE) "Private investigation and security service" means 4,351
the performance of any activity for which the provider of such 4,352
service is required to be licensed pursuant to Chapter 4749. of 4,353
the Revised Code, or would be required to be so licensed in 4,354
performing such services in this state, and also includes the 4,355
services of conducting polygraph examinations and of monitoring 4,356
or overseeing the activities on or in, or the condition of, the 4,357
consumer's home, business, or other facility by means of 4,358
electronic or similar monitoring devices. "Private investigation 4,359
and security service" does not include special duty services 4,360
provided by off-duty police officers, deputy sheriffs, and other 4,361
peace officers regularly employed by the state or a political 4,362
subdivision. 4,363
(FF) "Information services" means providing conversation, 4,365
giving consultation or advice, playing or making a voice or other 4,366
recording, making or keeping a record of the number of callers, 4,367
and any other service provided to a consumer by means of a nine 4,368
hundred telephone call, except when the nine hundred telephone 4,369
call is the means by which the consumer makes a contribution to a 4,370
recognized charity. 4,371
(GG) "Research and development" means designing, creating, 4,373
or formulating new or enhanced products, equipment, or 4,374
manufacturing processes, and conducting scientific or 4,375
technological inquiry and experimentation in the physical 4,376
sciences with the goal of increasing scientific knowledge which 4,377
may reveal the bases for new or enhanced products, equipment, or 4,378
manufacturing processes. 4,379
(HH) "Qualified research and development equipment" means 4,381
capitalized tangible personal property, and leased personal 4,382
property that would be capitalized if purchased, used by a person 4,383
primarily to perform research and development. Tangible personal 4,384
property primarily used in testing, as defined in division (A)(4) 4,385
of section 5739.011 of the Revised Code, or used for recording or 4,386
102
storing test results, is not qualified research and development 4,387
equipment unless such property is primarily used by the consumer 4,388
in testing the product, equipment, or manufacturing process being 4,389
created, designed, or formulated by the consumer in the research 4,390
and development activity or in recording or storing such test 4,391
results. 4,392
(II) "Building maintenance and janitorial service" means 4,394
cleaning the interior or exterior of a building and any tangible 4,395
personal property located therein or thereon, including any 4,396
services incidental to such cleaning for which no separate charge 4,397
is made. However, "building maintenance and janitorial service" 4,398
does not include the providing of such service by a person who 4,399
has less than five thousand dollars in sales of such service 4,400
during the calendar year. 4,401
(JJ) "Employment service" means providing or supplying 4,403
personnel, on a temporary or long-term basis, to perform work or 4,404
labor under the supervision or control of another, when the 4,405
personnel so supplied receive their wages, salary, or other 4,406
compensation from the provider of the service. "Employment 4,407
service" does not include: 4,408
(1) Acting as a contractor or subcontractor, where the 4,410
personnel performing the work are not under the direct control of 4,411
the purchaser. 4,412
(2) Medical and health care services. 4,414
(3) Supplying personnel to a purchaser pursuant to a 4,416
contract of at least one year between the service provider and 4,417
the purchaser that specifies that each employee covered under the 4,418
contract is assigned to the purchaser on a permanent basis. 4,419
(4) Transactions between members of an affiliated group, 4,421
as defined in division (B)(3)(e) of this section. 4,422
(KK) "Employment placement service" means locating or 4,424
finding employment for a person or finding or locating an 4,425
employee to fill an available position. 4,426
(LL) "Exterminating service" means eradicating or 4,428
103
attempting to eradicate vermin infestations from a building or 4,429
structure, or the area surrounding a building or structure, and 4,430
includes activities to inspect, detect, or prevent vermin 4,431
infestation of a building or structure. 4,432
(MM) "Physical fitness facility service" means all 4,434
transactions by which a membership is granted, maintained, or 4,435
renewed, including initiation fees, membership dues, renewal 4,436
fees, monthly minimum fees, and other similar fees and dues, by a 4,437
physical fitness facility such as an athletic club, health spa, 4,438
or gymnasium, which entitles the member to use the facility for 4,439
physical exercise. 4,440
(NN) "Recreation and sports club service" means all 4,442
transactions by which a membership is granted, maintained, or 4,443
renewed, including initiation fees, membership dues, renewal 4,444
fees, monthly minimum fees, and other similar fees and dues, by a 4,445
recreation and sports club, which entitles the member to use the 4,446
facilities of the organization. "Recreation and sports club" 4,447
means an organization that has ownership of, or controls or 4,448
leases on a continuing, long-term basis, the facilities used by 4,449
its members and includes an aviation club, gun or shooting club, 4,450
yacht club, card club, swimming club, tennis club, golf club, 4,451
country club, riding club, amateur sports club, or similar 4,452
organization. 4,453
(OO) "Livestock" means farm animals commonly raised for 4,455
food or food production, and includes but is not limited to 4,456
cattle, sheep, goats, swine, and poultry. "Livestock" does not 4,457
include invertebrates, fish, amphibians, reptiles, horses, 4,458
domestic pets, animals for use in laboratories or for exhibition, 4,459
or other animals not commonly raised for food or food production. 4,460
(PP) "Livestock structure" means a building or structure 4,462
used exclusively for the housing, raising, feeding, or sheltering 4,463
of livestock, and includes feed storage or handling structures 4,464
and structures for livestock waste handling. 4,465
(QQ) "Horticulture" means the growing, cultivation, and 4,467
104
production of flowers, fruits, herbs, vegetables, sod, mushrooms, 4,468
and nursery stock. As used in this division, "nursery stock" has 4,469
the same meaning as in section 927.51 of the Revised Code. 4,470
(RR) "Horticulture structure" means a building or 4,472
structure used exclusively for the commercial growing, raising, 4,473
or overwintering of horticultural products, and includes the area 4,474
used for stocking, storing, and packing horticultural products 4,475
when done in conjunction with the production of those products. 4,476
(SS) "Newspaper" means an unbound publication bearing a 4,478
title or name that is regularly published, at least as frequently 4,479
as biweekly, and distributed from a fixed place of business to 4,480
the public in a specific geographic area, and that contains a 4,481
substantial amount of news matter of international, national, or 4,482
local events of interest to the general public.
(TT) "Professional racing team" means a person that 4,485
employs at least twenty full-time employees for the purpose of 4,486
conducting a motor vehicle racing business for profit. The 4,487
person must conduct the business with the purpose of racing one 4,488
or more motor racing vehicles in at least ten competitive 4,489
professional racing events each year that comprise all or part of 4,490
a motor racing series sanctioned by one or more motor racing 4,491
sanctioning organizations. A "motor racing vehicle" means a 4,492
vehicle for which the chassis, engine, and parts are designed 4,493
exclusively for motor racing, and does not include a stock or 4,495
production model vehicle that may be modified for use in racing. 4,496
For the purposes of this division:
(1) A "competitive professional racing event" is a motor 4,498
vehicle racing event sanctioned by one or more motor racing 4,499
sanctioning organizations, at which aggregate cash prizes in 4,500
excess of eight hundred thousand dollars are awarded to the 4,502
competitors.
(2) "Full-time employee" means an individual who is 4,504
employed for consideration for thirty-five or more hours a week, 4,505
or who renders any other standard of service generally accepted 4,506
105
by custom or specified by contract as full-time employment. 4,508
(UU)(1) "Prepaid authorization number" means a numeric or 4,511
alphanumeric combination that represents a prepaid account that 4,512
can be used by the account holder solely to obtain 4,513
telecommunications service, and includes any renewals or 4,514
increases in the prepaid account. 4,515
(2) "Prepaid telephone calling card" means a tangible item 4,518
that contains a prepaid authorization number that can be used 4,519
solely to obtain telecommunications service, and includes any 4,520
renewals or increases in the prepaid account.
Sec. 5739.02. For the purpose of providing revenue with 4,529
which to meet the needs of the state, for the use of the general 4,530
revenue fund of the state, for the purpose of securing a thorough 4,531
and efficient system of common schools throughout the state, for 4,532
the purpose of affording revenues, in addition to those from 4,533
general property taxes, permitted under constitutional 4,534
limitations, and from other sources, for the support of local 4,535
governmental functions, and for the purpose of reimbursing the 4,536
state for the expense of administering this chapter, an excise 4,537
tax is hereby levied on each retail sale made in this state. 4,538
(A) The tax shall be collected pursuant to the schedules 4,540
in section 5739.025 of the Revised Code. 4,541
The tax applies and is collectible when the sale is made, 4,543
regardless of the time when the price is paid or delivered. 4,544
In the case of a sale, the price of which consists in whole 4,546
or in part of rentals for the use of the thing transferred, the 4,547
tax, as regards such rentals, shall be measured by the 4,548
installments thereof. 4,549
In the case of a sale of a service defined under division 4,551
(MM) or (NN) of section 5739.01 of the Revised Code, the price of 4,552
which consists in whole or in part of a membership for the 4,553
receipt of the benefit of the service, the tax applicable to the 4,554
sale shall be measured by the installments thereof. 4,555
(B) The tax does not apply to the following: 4,557
106
(1) Sales to the state or any of its political 4,559
subdivisions, or to any other state or its political subdivisions 4,560
if the laws of that state exempt from taxation sales made to this 4,561
state and its political subdivisions; 4,562
(2) Sales of food for human consumption off the premises 4,564
where sold; 4,565
(3) Sales of food sold to students only in a cafeteria, 4,567
dormitory, fraternity, or sorority maintained in a private, 4,568
public, or parochial school, college, or university; 4,569
(4) Sales of newspapers, and of magazine subscriptions 4,571
shipped by second class mail, and sales or transfers of magazines 4,572
distributed as controlled circulation publications; 4,573
(5) The furnishing, preparing, or serving of meals without 4,575
charge by an employer to an employee provided the employer 4,576
records the meals as part compensation for services performed or 4,577
work done; 4,578
(6) Sales of motor fuel upon receipt, use, distribution, 4,581
or sale of which in this state a tax is imposed by the law of 4,582
this state, but this exemption shall not apply to the sale of 4,583
motor fuel on which a refund of the tax is allowable under 4,584
section 5735.14 of the Revised Code; and the tax commissioner may 4,585
deduct the amount of tax levied by this section applicable to the 4,586
price of motor fuel when granting a refund of motor fuel tax 4,587
pursuant to section 5735.14 of the Revised Code and shall cause 4,588
the amount deducted to be paid into the general revenue fund of 4,589
this state;
(7) Sales of natural gas by a natural gas company, of 4,591
water by a water-works company, or of steam by a heating company, 4,592
if in each case the thing sold is delivered to consumers through 4,593
pipes or conduits, and all sales of communications services by a 4,594
telephone or telegraph company, all terms as defined in section 4,595
5727.01 of the Revised Code; 4,596
(8) Casual sales by a person, or auctioneer employed 4,598
directly by the person to conduct such sales, except as to such 4,600
107
sales of motor vehicles, watercraft or outboard motors required 4,601
to be titled under section 1548.06 of the Revised Code, 4,602
watercraft documented with the United States coast guard, 4,603
snowmobiles, and all-purpose vehicles as defined in section 4,604
4519.01 of the Revised Code; 4,605
(9) Sales of services or tangible personal property, other 4,607
than motor vehicles, mobile homes, and manufactured homes, by 4,609
churches, ORGANIZATIONS EXEMPT FROM TAXATION UNDER SECTION 4,610
501(c)(3) OF THE INTERNAL REVENUE CODE OF 1986, or by nonprofit 4,612
organizations operated exclusively for charitable purposes as 4,613
defined in division (B)(12) of this section, provided that the 4,614
number of days on which such tangible personal property or 4,615
services, other than items never subject to the tax, are sold
does not exceed six in any calendar year. If the number of days 4,616
on which such sales are made exceeds six in any calendar year, 4,617
the church or organization shall be considered to be engaged in 4,618
business and all subsequent sales by it shall be subject to the 4,619
tax. In counting the number of days, all sales by groups within 4,620
a church or within an organization shall be considered to be 4,621
sales of that church or organization, except that sales made by 4,622
separate student clubs and other groups of students of a primary 4,623
or secondary school, and sales made by a parent-teacher 4,624
association, booster group, or similar organization that raises 4,625
money to support or fund curricular or extracurricular activities 4,626
of a primary or secondary school, shall not be considered to be 4,627
sales of such school, and sales by each such club, group, 4,628
association, or organization shall be counted separately for 4,629
purposes of the six-day limitation. This division does not apply 4,630
to sales by a noncommercial educational radio or television 4,631
broadcasting station. 4,632
(10) Sales not within the taxing power of this state under 4,634
the Constitution of the United States; 4,635
(11) The transportation of persons or property, unless the 4,637
transportation is by a private investigation and security 4,638
108
service; 4,639
(12) Sales of tangible personal property or services to 4,641
churches, to organizations exempt from taxation under section 4,642
501(c)(3) of the Internal Revenue Code of 1986, and to any other 4,643
nonprofit organizations operated exclusively for charitable 4,644
purposes in this state, no part of the net income of which inures 4,645
to the benefit of any private shareholder or individual, and no 4,646
substantial part of the activities of which consists of carrying 4,647
on propaganda or otherwise attempting to influence legislation; 4,648
sales to offices administering one or more homes for the aged or 4,649
one or more hospital facilities exempt under section 140.08 of 4,650
the Revised Code; and sales to organizations described in 4,651
division (D) of section 5709.12 of the Revised Code. 4,652
"Charitable purposes" means the relief of poverty; the 4,654
improvement of health through the alleviation of illness, 4,655
disease, or injury; the operation of an organization exclusively 4,657
for the provision of professional, laundry, printing, and 4,658
purchasing services to hospitals or charitable institutions; the 4,660
operation of a home for the aged, as defined in section 5701.13 4,661
of the Revised Code; the operation of a radio or television 4,662
broadcasting station that is licensed by the federal 4,663
communications commission as a noncommercial educational radio or 4,664
television station; the operation of a nonprofit animal adoption 4,666
service or a county humane society; the promotion of education by 4,667
an institution of learning that maintains a faculty of qualified 4,668
instructors, teaches regular continuous courses of study, and
confers a recognized diploma upon completion of a specific 4,669
curriculum; the operation of a parent-teacher association, 4,670
booster group, or similar organization primarily engaged in the 4,671
promotion and support of the curricular or extracurricular 4,672
activities of a primary or secondary school; the operation of a 4,673
community or area center in which presentations in music, 4,674
dramatics, the arts, and related fields are made in order to 4,675
foster public interest and education therein; the production of 4,676
109
performances in music, dramatics, and the arts; or the promotion 4,678
of education by an organization engaged in carrying on research
in, or the dissemination of, scientific and technological 4,679
knowledge and information primarily for the public. 4,680
Nothing in this division shall be deemed to exempt sales to 4,682
any organization for use in the operation or carrying on of a 4,683
trade or business, or sales to a home for the aged for use in the 4,684
operation of independent living facilities as defined in division 4,685
(A) of section 5709.12 of the Revised Code. 4,686
(13) Building and construction materials and services sold 4,688
to construction contractors for incorporation into a structure or 4,689
improvement to real property under a construction contract with 4,690
this state or a political subdivision thereof, or with the United 4,691
States government or any of its agencies; building and 4,692
construction materials and services sold to construction 4,693
contractors for incorporation into a structure or improvement to 4,694
real property that are accepted for ownership by this state or 4,696
any of its political subdivisions, or by the United States 4,697
government or any of its agencies at the time of completion of 4,698
such structures or improvements; building and construction 4,699
materials sold to construction contractors for incorporation into 4,700
a horticulture structure or livestock structure for a person 4,701
engaged in the business of horticulture or producing livestock; 4,702
building materials and services sold to a construction contractor 4,703
for incorporation into a house of public worship or religious 4,704
education, or a building used exclusively for charitable purposes 4,705
under a construction contract with an organization whose purpose 4,706
is as described in division (B)(12) of this section; BUILDING 4,707
MATERIALS AND SERVICES SOLD TO A CONSTRUCTION CONTRACTOR FOR 4,708
INCORPORATION INTO A BUILDING UNDER A CONSTRUCTION CONTRACT WITH 4,709
AN ORGANIZATION EXEMPT FROM TAXATION UNDER SECTION 501(c)(3) OF 4,710
THE INTERNAL REVENUE CODE OF 1986 WHEN THE BUILDING IS TO BE USED 4,711
EXCLUSIVELY FOR THE ORGANIZATION'S EXEMPT PURPOSES; building and 4,712
construction materials sold for incorporation into the original 4,713
110
construction of a sports facility under section 307.696 of the 4,714
Revised Code; and building and construction materials and 4,715
services sold to a construction contractor for incorporation into 4,716
real property outside this state if such materials and services, 4,717
when sold to a construction contractor in the state in which the 4,718
real property is located for incorporation into real property in 4,719
that state, would be exempt from a tax on sales levied by that 4,720
state; 4,721
(14) Sales of ships or vessels or rail rolling stock used 4,723
or to be used principally in interstate or foreign commerce, and 4,724
repairs, alterations, fuel, and lubricants for such ships or 4,725
vessels or rail rolling stock; 4,726
(15) Sales to persons engaged in any of the activities 4,728
mentioned in division (E)(2) or (9) of section 5739.01 of the 4,729
Revised Code, to persons engaged in making retail sales, or to 4,730
persons who purchase for sale from a manufacturer tangible 4,731
personal property that was produced by the manufacturer in 4,732
accordance with specific designs provided by the purchaser, of 4,733
packages, including material and parts for packages, and of 4,734
machinery, equipment, and material for use primarily in packaging 4,735
tangible personal property produced for sale by or on the order 4,736
of the person doing the packaging, or sold at retail. "Packages" 4,737
includes bags, baskets, cartons, crates, boxes, cans, bottles, 4,738
bindings, wrappings, and other similar devices and containers, 4,739
and "packaging" means placing therein. 4,740
(16) Sales of food to persons using food stamp coupons to 4,742
purchase the food. As used in division (B)(16) of this section, 4,743
"food" has the same meaning as in the "Food Stamp Act of 1977," 4,744
91 Stat. 958, 7 U.S.C. 2012, as amended, and federal regulations 4,745
adopted pursuant to that act. 4,746
(17) Sales to persons engaged in farming, agriculture, 4,748
horticulture, or floriculture, of tangible personal property for 4,749
use or consumption directly in the production by farming, 4,750
agriculture, horticulture, or floriculture of other tangible 4,751
111
personal property for use or consumption directly in the 4,752
production of tangible personal property for sale by farming, 4,753
agriculture, horticulture, or floriculture; or material and parts 4,754
for incorporation into any such tangible personal property for 4,755
use or consumption in production; and of tangible personal 4,756
property for such use or consumption in the conditioning or 4,757
holding of products produced by and for such use, consumption, or 4,758
sale by persons engaged in farming, agriculture, horticulture, or 4,759
floriculture, except where such property is incorporated into 4,760
real property; 4,761
(18) Sales of drugs dispensed by a licensed pharmacist 4,764
upon the order of a licensed health professional authorized to 4,766
prescribe drugs to a human being, as the term "licensed health
professional authorized to prescribe drugs" is defined in section 4,767
4729.01 of the Revised Code; insulin as recognized in the 4,769
official United States pharmacopoeia; urine and blood testing 4,770
materials when used by diabetics or persons with hypoglycemia to 4,771
test for glucose or acetone; hypodermic syringes and needles when 4,772
used by diabetics for insulin injections; epoetin alfa when 4,773
purchased for use in the treatment of persons with end-stage 4,774
renal disease; hospital beds when purchased for use by persons 4,776
with medical problems for medical purposes; and oxygen and 4,777
oxygen-dispensing equipment when purchased for use by persons 4,778
with medical problems for medical purposes;
(19) Sales of artificial limbs or portion thereof, breast 4,780
prostheses, and other prosthetic devices for humans; braces or 4,781
other devices for supporting weakened or nonfunctioning parts of 4,782
the human body; wheelchairs; devices used to lift wheelchairs 4,783
into motor vehicles and parts and accessories to such devices; 4,784
crutches or other devices to aid human perambulation; and items 4,785
of tangible personal property used to supplement impaired 4,786
functions of the human body such as respiration, hearing, or 4,787
elimination. No exemption under this division shall be allowed 4,788
for nonprescription drugs, medicines, or remedies; items or 4,789
112
devices used to supplement vision; items or devices whose 4,790
function is solely or primarily cosmetic; or physical fitness 4,791
equipment. This division does not apply to sales to a physician 4,792
or medical facility for use in the treatment of a patient. 4,793
(20) Sales of emergency and fire protection vehicles and 4,795
equipment to nonprofit organizations for use solely in providing 4,796
fire protection and emergency services for political subdivisions 4,797
of the state; 4,798
(21) Sales of tangible personal property manufactured in 4,800
this state, if sold by the manufacturer in this state to a 4,801
retailer for use in the retail business of the retailer outside 4,802
of this state and if possession is taken from the manufacturer by 4,804
the purchaser within this state for the sole purpose of 4,805
immediately removing the same from this state in a vehicle owned 4,806
by the purchaser;
(22) Sales of services provided by the state or any of its 4,808
political subdivisions, agencies, instrumentalities, 4,809
institutions, or authorities, or by governmental entities of the 4,810
state or any of its political subdivisions, agencies, 4,811
instrumentalities, institutions, or authorities; 4,812
(23) Sales of motor vehicles to nonresidents of this state 4,814
upon the presentation of an affidavit executed in this state by 4,815
the nonresident purchaser affirming that the purchaser is a 4,816
nonresident of this state, that possession of the motor vehicle 4,817
is taken in this state for the sole purpose of immediately 4,818
removing it from this state, that the motor vehicle will be 4,819
permanently titled and registered in another state, and that the 4,820
motor vehicle will not be used in this state; 4,821
(24) Sales to persons engaged in the preparation of eggs 4,823
for sale of tangible personal property used or consumed directly 4,824
in such preparation, including such tangible personal property 4,825
used for cleaning, sanitizing, preserving, grading, sorting, and 4,826
classifying by size; packages, including material and parts for 4,827
packages, and machinery, equipment, and material for use in 4,828
113
packaging eggs for sale; and handling and transportation 4,829
equipment and parts therefor, except motor vehicles licensed to 4,830
operate on public highways, used in intraplant or interplant 4,831
transfers or shipment of eggs in the process of preparation for 4,832
sale, when the plant or plants within or between which such 4,833
transfers or shipments occur are operated by the same person. 4,834
"Packages" includes containers, cases, baskets, flats, fillers, 4,835
filler flats, cartons, closure materials, labels, and labeling 4,836
materials, and "packaging" means placing therein. 4,837
(25)(a) Sales of water to a consumer for residential use, 4,839
except the sale of bottled water, distilled water, mineral water, 4,840
carbonated water, or ice; 4,841
(b) Sales of water by a nonprofit corporation engaged 4,843
exclusively in the treatment, distribution, and sale of water to 4,844
consumers, if such water is delivered to consumers through pipes 4,845
or tubing. 4,846
(26) Fees charged for inspection or reinspection of motor 4,848
vehicles under section 3704.14 of the Revised Code; 4,849
(27) Sales of solar, wind, or hydrothermal energy systems 4,851
that meet the guidelines established under division (B) of 4,852
section 1551.20 of the Revised Code, components of such systems 4,853
that are identified under division (B) or (D) of that section, or 4,854
charges for the installation of such systems or components, made 4,855
during the period from August 14, 1979, through December 31, 4,856
1985; 4,857
(28) Sales to persons licensed to conduct a food service 4,859
operation pursuant to section 3717.43 of the Revised Code, of 4,860
tangible personal property primarily used directly for the 4,861
following:
(a) To prepare food for human consumption for sale; 4,863
(b) To preserve food that has been or will be prepared for 4,866
human consumption for sale by the food service operator, not
including tangible personal property used to display food for 4,867
selection by the consumer; 4,868
114
(c) To clean tangible personal property used to prepare or 4,870
serve food for human consumption for sale. 4,871
(29)(28) Sales of animals by nonprofit animal adoption 4,873
services or county humane societies; 4,874
(30)(29) Sales of services to a corporation described in 4,876
division (A) of section 5709.72 of the Revised Code, and sales of 4,877
tangible personal property that qualifies for exemption from 4,878
taxation under section 5709.72 of the Revised Code; 4,879
(31)(30) Sales and installation of agricultural land tile, 4,881
as defined in division (B)(5)(a) of section 5739.01 of the 4,882
Revised Code; 4,883
(32)(31) Sales and erection or installation of portable 4,885
grain bins, as defined in division (B)(5)(b) of section 5739.01 4,886
of the Revised Code; 4,887
(33)(32) The sale, lease, repair, and maintenance of, 4,889
parts for, or items attached to or incorporated in, motor 4,890
vehicles that are primarily used for transporting tangible 4,893
personal property by a person engaged in highway transportation 4,894
for hire;
(34)(33) Sales to the state headquarters of any veterans' 4,896
organization in Ohio that is either incorporated and issued a 4,897
charter by the congress of the United States or is recognized by 4,898
the United States veterans administration, for use by the 4,899
headquarters; 4,900
(35)(34) Sales to a telecommunications service vendor of 4,902
tangible personal property and services used directly and 4,903
primarily in transmitting, receiving, switching, or recording any 4,904
interactive, two-way electromagnetic communications, including 4,905
voice, image, data, and information, through the use of any 4,906
medium, including, but not limited to, poles, wires, cables, 4,907
switching equipment, computers, and record storage devices and 4,908
media, and component parts for the tangible personal property. 4,909
The exemption provided in division (B)(35)(34) of this section 4,910
shall be in lieu of all other exceptions under division (E)(2) of 4,912
115
section 5739.01 of the Revised Code to which a telecommunications 4,913
service vendor may otherwise be entitled based upon the use of 4,914
the thing purchased in providing the telecommunications service. 4,915
(36)(35) Sales of investment metal bullion and investment 4,917
coins. "Investment metal bullion" means any elementary precious 4,918
metal that has been put through a process of smelting or 4,919
refining, including, but not limited to, gold, silver, platinum, 4,920
and palladium, and which is in such state or condition that its 4,921
value depends upon its content and not upon its form. 4,922
"Investment metal bullion" does not include fabricated precious 4,923
metal that has been processed or manufactured for one or more 4,925
specific and customary industrial, professional, or artistic 4,926
uses. "Investment coins" means numismatic coins or other forms 4,927
of money and legal tender manufactured of gold, silver, platinum, 4,928
palladium, or other metal under the laws of the United States or 4,929
any foreign nation with a fair market value greater than any 4,930
statutory or nominal value of such coins. 4,931
(37)(36)(a) Sales where the purpose of the consumer is to 4,933
use or consume the things transferred in making retail sales and 4,934
consisting of newspaper inserts, catalogues, coupons, flyers, 4,935
gift certificates, or other advertising material that prices and 4,937
describes tangible personal property offered for retail sale. 4,938
(b) Sales to direct marketing vendors of preliminary 4,940
materials such as photographs, artwork, and typesetting that will 4,941
be used in printing advertising material; of printed matter that 4,942
offers free merchandise or chances to win sweepstake prizes and 4,943
that is mailed to potential customers with advertising material 4,944
described in division (B)(37)(36)(a) of this section; and of 4,945
equipment such as telephones, computers, facsimile machines, and 4,946
similar tangible personal property primarily used to accept 4,947
orders for direct marketing retail sales. 4,948
(c) Sales of automatic food vending machines that preserve 4,950
food with a shelf life of forty-five days or less by 4,951
refrigeration and dispense it to the consumer. 4,952
116
For purposes of division (B)(37)(36) of this section, 4,954
"direct marketing" means the method of selling where consumers 4,955
order tangible personal property by United States mail, delivery 4,956
service, or telecommunication and the vendor delivers or ships 4,957
the tangible personal property sold to the consumer from a 4,958
warehouse, catalogue distribution center, or similar fulfillment 4,959
facility by means of the United States mail, delivery service, or 4,960
common carrier. 4,961
(38)(37) Sales to a person engaged in the business of 4,963
horticulture or producing livestock of materials to be 4,964
incorporated into a horticulture structure or livestock 4,965
structure; 4,966
(39)(38) The sale of a motor vehicle that is used 4,968
exclusively for a vanpool ridesharing arrangement to persons 4,970
participating in the vanpool ridesharing arrangement when the 4,971
vendor is selling the vehicle pursuant to a contract between the 4,972
vendor and the department of transportation;
(40)(39) Sales of personal computers, computer monitors, 4,974
computer keyboards, modems, and other peripheral computer 4,976
equipment to an individual who is licensed or certified to teach 4,977
in an elementary or a secondary school in this state for use by 4,978
that individual in preparation for teaching elementary or
secondary school students; 4,979
(41)(40) Sales to a professional racing team of any of the 4,981
following: 4,982
(a) Motor racing vehicles; 4,984
(b) Repair services for motor racing vehicles; 4,987
(c) Items of property that are attached to or incorporated 4,990
in motor racing vehicles, including engines, chassis, and all 4,991
other components of the vehicles, and all spare, replacement, and 4,992
rebuilt parts or components of the vehicles; except not including 4,993
tires, consumable fluids, paint, and accessories consisting of 4,994
instrumentation sensors and related items added to the vehicle to 4,995
collect and transmit data by means of telemetry and other forms 4,996
117
of communication.
(42)(41) Sales of used manufactured homes and used mobile 4,998
homes, as defined in section 5739.0210 of the Revised Code, made 5,000
on or after January 1, 2000; 5,001
(43)(42) Sales of tangible personal property and services 5,003
to a provider of electricity used or consumed directly and 5,005
primarily in generating, transmitting, or distributing 5,006
electricity for use by others, including property that is or is 5,007
to be incorporated into and will become a part of the consumer's 5,008
production, transmission, or distribution system and that retains 5,009
its classification as tangible personal property after 5,010
incorporation; fuel or power used in the production, 5,011
transmission, or distribution of electricity; and tangible 5,012
personal property and services used in the repair and maintenance 5,013
of the production, transmission, or distribution system, 5,014
including only those motor vehicles as are specially designed and 5,015
equipped for such use. The exemption provided in this division 5,016
shall be in lieu of all other exceptions in division (E)(2) of 5,017
section 5739.01 of the Revised Code to which a provider of 5,019
electricity may otherwise be entitled based on the use of the
tangible personal property or service purchased in generating, 5,020
transmitting, or distributing electricity. 5,021
For the purpose of the proper administration of this 5,023
chapter, and to prevent the evasion of the tax, it is presumed 5,024
that all sales made in this state are subject to the tax until 5,025
the contrary is established. 5,026
As used in this section, except in division (B)(16) of this 5,028
section, "food" includes cereals and cereal products, milk and 5,029
milk products including ice cream, meat and meat products, fish 5,030
and fish products, eggs and egg products, vegetables and 5,031
vegetable products, fruits, fruit products, and pure fruit 5,032
juices, condiments, sugar and sugar products, coffee and coffee 5,033
substitutes, tea, and cocoa and cocoa products. It does not 5,034
include: spirituous or malt liquors; soft drinks; sodas and 5,035
118
beverages that are ordinarily dispensed at bars and soda 5,036
fountains or in connection therewith, other than coffee, tea, and 5,037
cocoa; root beer and root beer extracts; malt and malt extracts; 5,038
mineral oils, cod liver oils, and halibut liver oil; medicines, 5,039
including tonics, vitamin preparations, and other products sold 5,040
primarily for their medicinal properties; and water, including 5,041
mineral, bottled, and carbonated waters, and ice. 5,042
(C) The levy of an excise tax on transactions by which 5,044
lodging by a hotel is or is to be furnished to transient guests 5,045
pursuant to this section and division (B) of section 5739.01 of 5,046
the Revised Code does not prevent any of the following: 5,047
(1) A municipal corporation or township from levying an 5,049
excise tax for any lawful purpose not to exceed three per cent on 5,050
transactions by which lodging by a hotel is or is to be furnished 5,051
to transient guests in addition to the tax levied by this 5,052
section. If a municipal corporation or township repeals a tax 5,053
imposed under division (C)(1) of this section and a county in 5,054
which the municipal corporation or township has territory has a 5,055
tax imposed under division (C) of section 5739.024 of the Revised 5,056
Code in effect, the municipal corporation or township may not 5,057
reimpose its tax as long as that county tax remains in effect. A 5,058
municipal corporation or township in which a tax is levied under 5,059
division (B)(2) of section 351.021 of the Revised Code may not 5,060
increase the rate of its tax levied under division (C)(1) of this 5,061
section to any rate that would cause the total taxes levied under 5,062
both of those divisions to exceed three per cent on any lodging 5,063
transaction within the municipal corporation or township. 5,064
(2) A municipal corporation or a township from levying an 5,066
additional excise tax not to exceed three per cent on such 5,067
transactions pursuant to division (B) of section 5739.024 of the 5,068
Revised Code. Such tax is in addition to any tax imposed under 5,069
division (C)(1) of this section. 5,070
(3) A county from levying an excise tax pursuant to 5,072
division (A) of section 5739.024 of the Revised Code. 5,073
119
(4) A county from levying an excise tax not to exceed 5,075
three per cent of such transactions pursuant to division (C) of 5,076
section 5739.024 of the Revised Code. Such a tax is in addition 5,077
to any tax imposed under division (C)(3) of this section. 5,078
(5) A convention facilities authority, as defined in 5,080
division (A) of section 351.01 of the Revised Code, from levying 5,081
the excise taxes provided for in division (B) of section 351.021 5,082
of the Revised Code. 5,083
(6) A county from levying an excise tax not to exceed one 5,085
and one-half per cent of such transactions pursuant to division 5,086
(D) of section 5739.024 of the Revised Code. Such tax is in 5,087
addition to any tax imposed under division (C)(3) or (4) of this 5,088
section. 5,089
(7) A county from levying an excise tax not to exceed one 5,091
and one-half per cent of such transactions pursuant to division 5,092
(E) of section 5739.024 of the Revised Code. Such a tax is in 5,093
addition to any tax imposed under division (C)(3), (4), or (6) of 5,094
this section. 5,095
(D) The levy of this tax on retail sales of recreation and 5,097
sports club service shall not prevent a municipal corporation 5,098
from levying any tax on recreation and sports club dues or on any 5,099
income generated by recreation and sports club dues. 5,100
Sec. 5739.03. Except as provided in section 5739.05 of the 5,109
Revised Code, the tax imposed by or pursuant to section 5739.02, 5,110
5739.021, 5739.023, or 5739.026 of the Revised Code shall be paid 5,111
by the consumer to the vendor, and each vendor shall collect from 5,112
the consumer, as a trustee for the state of Ohio, the full and 5,113
exact amount of the tax payable on each taxable sale, in the 5,114
manner and at the times provided as follows: 5,115
(A) If the price is, at or prior to the provision of the 5,117
service or the delivery of possession of the thing sold to the 5,118
consumer, paid in currency passed from hand to hand by the 5,119
consumer or his THE CONSUMER'S agent to the vendor or his THE 5,121
VENDOR'S agent, the vendor or his THE VENDOR'S agent shall 5,122
120
collect the tax with and at the same time as the price; 5,124
(B) If the price is otherwise paid or to be paid, the 5,126
vendor or his THE VENDOR'S agent shall, at or prior to the 5,127
provision of the service or the delivery of possession of the 5,129
thing sold to the consumer, charge the tax imposed by or pursuant 5,130
to section 5739.02, 5739.021, 5739.023, or 5739.026 of the 5,131
Revised Code to the account of the consumer, which amount shall 5,132
be collected by the vendor from the consumer in addition to the 5,133
price. Such sale shall be reported on and the amount of the tax 5,134
applicable thereto shall be remitted with the return for the 5,135
period in which the sale is made, and the amount of the tax shall 5,136
become a legal charge in favor of the vendor and against the 5,137
consumer.
If any sale is claimed to be exempt under division (E) of 5,139
section 5739.01 of the Revised Code or under section 5739.02 of 5,140
the Revised Code, with the exception of divisions (B)(1) to (11) 5,141
or (29)(28) of section 5739.02 of the Revised Code, the consumer 5,143
must furnish to the vendor, and the vendor must obtain from the 5,144
consumer, a certificate specifying the reason that the sale is 5,145
not legally subject to the tax. If the transaction is claimed to 5,146
be exempt under division (B)(13) of section 5739.02 of the 5,147
Revised Code, the exemption certificate shall be signed by both 5,148
the contractor and his THE contractee and such contractee shall 5,149
be deemed to be the consumer of all items purchased under such 5,151
claim of exemption in the event it is subsequently determined 5,152
that the exemption is not properly claimed. The certificate 5,153
shall be in such form as the tax commissioner by regulation 5,154
prescribes. If no certificate is furnished or obtained within 5,155
the period for filing the return for the period in which such 5,156
sale is consummated, it shall be presumed that the tax applies. 5,157
The failure to have so furnished, or to have so obtained, a 5,158
certificate shall not prevent a vendor or consumer from 5,159
establishing that the sale is not subject to the tax within sixty 5,160
ONE HUNDRED TWENTY days of the giving of notice by the 5,162
121
commissioner of intention to levy an assessment, in which event 5,163
the tax shall not apply.
Certificates need not be obtained nor furnished where the 5,165
identity of the consumer is such that the transaction is never 5,166
subject to the tax imposed or where the item of tangible personal 5,167
property sold or the service provided is never subject to the tax 5,168
imposed, regardless of use, or when the sale is in interstate 5,169
commerce. 5,170
(C) As used in this division, "contractee" means a person 5,172
who seeks to enter or enters into a contract or agreement with a 5,173
contractor or vendor for the construction of real property or for 5,174
the sale and installation onto real property of tangible personal 5,175
property. 5,176
Any contractor or vendor may request from any contractee a 5,178
certification of what portion of the property to be transferred 5,179
under such contract or agreement is to be incorporated into the 5,180
realty and what portion will retain its status as tangible 5,181
personal property after installation is completed. The 5,182
contractor or vendor shall request the certification by certified 5,183
mail delivered to the contractee, return receipt requested. Upon 5,184
receipt of such request and prior to entering into the contract 5,185
or agreement, the contractee shall furnish to the contractor or 5,186
vendor a certification sufficiently detailed to enable the 5,187
contractor or vendor to ascertain the resulting classification of 5,188
all materials purchased or fabricated by the contractor or vendor 5,189
and transferred to the contractee. This requirement applies to a 5,190
contractee regardless of whether the contractee holds a direct 5,191
payment permit under section 5739.031 of the Revised Code or 5,192
furnishes to the contractor or vendor an exemption certificate as 5,193
provided under this section. 5,194
For the purposes of the taxes levied by this chapter and 5,196
Chapter 5741. of the Revised Code, the contractor or vendor may 5,197
in good faith rely on the contractee's certification. 5,198
Notwithstanding division (B) of section 5739.01 of the Revised 5,199
122
Code, if the tax commissioner determines that certain property 5,200
certified by the contractee as tangible personal property 5,201
pursuant to this division is, in fact, real property, the 5,202
contractee shall be considered to be the consumer of all 5,203
materials so incorporated into that real property and shall be 5,204
liable for the applicable tax, and the contractor or vendor shall 5,205
be excused from any liability on those materials. 5,206
If a contractee fails to provide such certification upon 5,208
the request of the contractor or vendor, the contractor or vendor 5,209
shall comply with the provisions of this chapter and Chapter 5,210
5741. of the Revised Code without the certification. If the tax 5,211
commissioner determines that such compliance has been performed 5,212
in good faith and that certain property treated as tangible 5,213
personal property by the contractor or vendor is, in fact, real 5,214
property, the contractee shall be considered to be the consumer 5,215
of all materials so incorporated into that real property and 5,216
shall be liable for the applicable tax and the construction 5,217
contractor or vendor shall be excused from any liability on those 5,218
materials. 5,219
This division does not apply to any contract or agreement 5,221
where the tax commissioner determines as a fact that a 5,222
certification under this division was made solely on the decision 5,223
or advice of the contractor or vendor. 5,224
(D) Notwithstanding division (B) of section 5739.01 of the 5,226
Revised Code, whenever the total rate of tax imposed under this 5,227
chapter is increased after the date after a construction contract 5,228
is entered into, the contractee shall reimburse the construction 5,229
contractor for any additional tax paid on tangible property 5,230
consumed or services received pursuant to the contract. 5,231
(E) A vendor who files a petition for reassessment 5,233
contesing CONTESTING the assessment of tax on sales for which the 5,234
vendor obtained no valid exemption certificates and for which the 5,235
vendor failed to establish that the sales were properly not 5,236
subject to the tax during the sixty-day ONE-HUNDRED-TWENTY-DAY 5,237
123
period allowed under division (B) of this section, may present to 5,239
the tax commissioner additional evidence to prove that the sales 5,240
were properly subject to a claim of exception or exemption. The 5,241
vendor shall file such evidence within ninety days of the receipt 5,242
by the vendor of the notice of assessment, except that, upon 5,243
application and for reasonable cause, the period for submitting 5,244
such evidence shall be extended thirty days. 5,245
The commissioner shall consider such additional evidence in 5,247
reaching the final determination on the assessment and petition 5,248
for reassessment. 5,249
(F) Whenever a vendor refunds to the consumer the full 5,251
price of an item of tangible personal property on which the tax 5,252
imposed under this chapter has been paid, he THE VENDOR shall 5,253
also refund the full amount of the tax paid. 5,255
Sec. 5739.032. (A) If the total amount of tax required to 5,264
be paid by a permit holder under section 5739.031 of the Revised 5,265
Code for any calendar year indicated in the following schedule 5,266
equals or exceeds the amounts prescribed for that year in the 5,267
schedule, the permit holder shall remit each monthly tax payment 5,268
in the second ensuing and each succeeding year by electronic 5,269
funds transfer as prescribed by division (B) of this section. 5,270
Year 1992 1993 and thereafter 2000 5,273
THROUGH 1999 AND THEREAFTER 5,274
Tax payment $1,200,000 $600,000 $60,000 5,275
If a permit holder's tax payment for each of two 5,278
consecutive years beginning with 1993 2000 is less than six 5,279
hundred SIXTY thousand dollars, the permit holder is relieved of 5,281
the requirement to remit taxes by electronic funds transfer for 5,282
the year that next follows the second of the consecutive years in 5,283
which the tax payment is less than six hundred SIXTY thousand 5,284
dollars, and is relieved of that requirement for each succeeding 5,286
year unless the tax payment in a subsequent year equals or 5,287
exceeds six hundred SIXTY thousand dollars. 5,288
The tax commissioner shall notify each permit holder 5,290
124
required to remit taxes by electronic funds transfer of the 5,291
permit holder's obligation to do so, shall maintain an updated 5,292
list of those permit holders, and shall timely certify the list 5,293
and any additions thereto or deletions therefrom to the treasurer 5,294
of state. Failure by the tax commissioner to notify a permit 5,295
holder subject to this section to remit taxes by electronic funds 5,296
transfer does not relieve the permit holder of its obligation to 5,297
remit taxes by electronic funds transfer. 5,298
(B) Permit holders required by division (A) of this 5,300
section to remit payments by electronic funds transfer shall 5,301
remit such payments to the treasurer of state in the manner 5,302
prescribed by rules adopted by the treasurer under section 5,303
113.061 of the Revised Code and on or before the dates specified 5,304
under section 5739.031 of the Revised Code. The payment of taxes 5,305
by electronic funds transfer does not affect a permit holder's 5,306
obligation to file the monthly return as required under section 5,307
5739.031 of the Revised Code. 5,308
A permit holder required by this section to remit taxes by 5,310
electronic funds transfer may apply to the treasurer of state in 5,311
the manner prescribed by the treasurer to be excused from that 5,312
requirement. The treasurer of state may excuse the permit holder 5,313
from remittance by electronic funds transfer for good cause shown 5,314
for the period of time requested by the permit holder or for a 5,315
portion of that period. The treasurer shall notify the tax 5,316
commissioner and the permit holder of the treasurer's decision as 5,317
soon as is practicable. 5,318
(C) If a permit holder required by this section to remit 5,320
taxes by electronic funds transfer remits those taxes by some 5,321
means other than by electronic funds transfer as prescribed by 5,322
this section and the rules adopted by the treasurer of state, and 5,323
the treasurer determines that such failure was not due to 5,324
reasonable cause or was due to willful neglect, the treasurer 5,325
shall notify the tax commissioner of the failure to remit by 5,326
electronic funds transfer and shall provide the commissioner with 5,327
125
any information used in making that determination. The tax 5,328
commissioner may collect an additional charge by assessment in 5,329
the manner prescribed by section 5739.13 of the Revised Code. The 5,331
additional charge shall equal five per cent of the amount of the 5,332
taxes required to be paid by electronic funds transfer, but shall 5,333
not exceed five thousand dollars. Any additional charge assessed 5,334
under this section is in addition to any other penalty or charge 5,335
imposed under this chapter, and shall be considered as revenue 5,336
arising from taxes imposed under this chapter. The tax
commissioner may remit all or a portion of such a charge and may 5,337
adopt rules governing such remission. 5,338
No additional charge shall be assessed under this division 5,340
against a permit holder that has been notified of its obligation 5,341
to remit taxes under this section and that remits its first two 5,342
tax payments after such notification by some means other than 5,343
electronic funds transfer. The additional charge may be assessed 5,344
upon the remittance of any subsequent tax payment that the permit 5,345
holder remits by some means other than electronic funds transfer. 5,346
Sec. 5739.033. The amount of tax due pursuant to sections 5,355
5739.02, 5739.021, 5739.023, and 5739.026 of the Revised Code is 5,356
the sum of the taxes imposed pursuant to those sections at the 5,357
situs of the consummation of the sale as determined under this 5,358
section. 5,359
(A) Except as otherwise provided in this section and 5,361
division (C) of section 5739.031 of the Revised Code, all sales 5,362
are conclusively determined to be consummated at the vendor's 5,363
place of business. 5,364
(1) If the consumer or the consumer's agent takes 5,366
possession of the tangible personal property at a place of 5,367
business of the vendor where the purchase contract or agreement 5,368
was made, the sale is consummated at that place of business. 5,369
(2) If the consumer or the consumer's agent takes 5,371
possession of the tangible personal property other than at a 5,372
place of business of the vendor, or takes possession at a 5,373
126
warehouse or similar facility of the vendor, the sale is 5,374
consummated at the vendor's place of business where the purchase 5,375
contract or agreement was made or the purchase order was 5,376
received.
(3) If the vendor provides a service specified in division 5,378
(B)(3)(a), (b), (c), (d), (n), or (o) of section 5739.01 of the 5,380
Revised Code, the sale is consummated at the vendor's place of 5,381
business where the service is performed or the contract or 5,382
agreement for the service was made or the purchase order was 5,383
received.
(B) If the vendor is a transient vendor as specified in 5,385
division (B) of section 5739.17 of the Revised Code, the sale is 5,386
conclusively determined to be consummated at the vendor's 5,387
temporary place of business or, if the transient vendor is the 5,388
lessor of titled motor vehicles, titled watercraft, or titled 5,389
outboard motors, at the location where the lessee keeps the 5,390
leased property. 5,391
(C) If the vendor is a limited vendor as specified in 5,393
division (B) of section 5739.17 of the Revised Code, the sale is 5,394
conclusively determined to be consummated at the temporary event 5,395
at which the vendor is making sales. 5,396
(D) If the vendor makes sales of tangible personal 5,398
property from a stock of goods carried in a motor vehicle, from 5,399
which the purchaser makes selection and takes possession, or from 5,400
which the vendor sells tangible personal property the quantity of 5,401
which has not been determined prior to the time the purchaser 5,402
takes possession, the sale is conclusively determined to be 5,403
consummated at the location of the motor vehicle when the sale is 5,404
made. 5,405
(E)(D) If the vendor is a delivery vendor as specified in 5,407
division (D) of section 5739.17 of the Revised Code, the sale is 5,408
conclusively determined to be consummated at the place where the 5,409
tangible personal property is delivered, where the leased 5,410
property is used, or where the service is performed or received. 5,411
127
(F)(E) If the vendor provides a service specified in 5,413
division (B)(3)(e), (g), (h), (j), (k), (l), or (m) of section 5,415
5739.01 of the Revised Code, the sale is conclusively determined 5,416
to be consummated at the location of the consumer where the 5,417
service is performed or received. 5,418
(G)(F) Except as provided in division (J)(I) of this 5,421
section, if the vendor provides a service specified in division 5,422
(B)(3)(f) or (i) of section 5739.01 of the Revised Code, the sale 5,423
is conclusively determined to be consummated at the location of 5,424
the telephone number or account as reflected in the records of 5,425
the vendor. If, in the case of a telecommunications service, the 5,426
telephone number or account is located outside this state, the 5,427
sale is conclusively determined to be consummated at the location 5,428
in this state from which the service originated. 5,429
(H)(G) If the vendor provides lodging to transient guests 5,431
as specified in division (B)(2) of section 5739.01 of the Revised 5,432
Code, the sale is conclusively determined to be consummated at 5,433
the location where the lodging is located. 5,434
(I)(H) If the vendor sells a warranty, maintenance or 5,436
service contract, or similar agreement as specified in division 5,437
(B)(7) of section 5739.01 of the Revised Code and the vendor is a 5,438
delivery vendor, the sale is conclusively determined to be 5,439
consummated at the location of the consumer. If the vendor is 5,440
not a delivery vendor, the sale is conclusively determined to be 5,441
consummated at the vendor's place of business where the contract 5,442
or agreement was made, unless the warranty or contract is a 5,443
component of the sale of a titled motor vehicle, titled 5,444
watercraft, or titled outboard motor, in which case the sale is 5,445
conclusively determined to be consummated in the county of 5,446
titling.
(J)(I) Except as otherwise provided in this division, if 5,448
the vendor sells a prepaid authorization number or a prepaid 5,450
telephone calling card, the sale is conclusively determined to be 5,452
consummated at the vendor's place of business and shall be taxed 5,453
128
at the time of sale. If the vendor sells a prepaid authorization 5,454
number or prepaid telephone calling card through a telephone 5,455
call, electronic commerce, or any other form of remote commerce, 5,456
the sale is conclusively determined to be made at the consumer's 5,457
shipping address, or, if there is no item shipped, at the 5,458
consumer's billing address.
Sec. 5739.12. Each person who has or is required to have a 5,467
vendor's license, on or before the twenty-third day of each 5,468
month, shall make and file a return for the preceding month, on 5,469
forms prescribed by the tax commissioner, and shall pay the tax 5,470
shown on the return to be due. The return shall show the amount 5,471
of tax due from the vendor to the state for the period covered by 5,472
the return and such other information as the commissioner deems 5,473
necessary for the proper administration of this chapter. The 5,474
commissioner may extend the time for making and filing returns 5,475
and paying the tax, and may require that the return for the last 5,476
month of any annual or semiannual period, as determined by the 5,477
commissioner, be a reconciliation return detailing the vendor's 5,478
sales activity for the preceding annual or semiannual period. 5,479
The reconciliation return shall be filed by the last day of the 5,480
month following the last month of the annual or semiannual 5,481
period. The commissioner may remit all or any part of amounts or 5,482
penalties which may become due under this chapter and may adopt 5,483
rules relating thereto. Such return shall be filed by mailing 5,484
the same to the treasurer of state, together with payment of the 5,485
amount of tax shown to be due thereon after deduction of any 5,486
discount provided for under this section. The return shall be 5,487
considered filed when received by the treasurer of state, and the 5,488
payment shall be considered made when received by the treasurer 5,489
of state or when credited to an account designated by the 5,490
treasurer of state. If the return is filed and the amount of tax 5,491
shown thereon to be due is paid on or before the date such return 5,492
is required to be filed, the vendor shall be entitled to a 5,493
discount of three-fourths of one per cent of the amount shown to 5,494
129
be due on the return. Amounts paid to the clerk of courts 5,495
pursuant to section 4505.06 of the Revised Code shall be subject 5,496
to the three-fourths of one per cent discount. The discount 5,497
shall be in consideration for prompt payment to the clerk of 5,498
courts and for other services performed by the vendor in the 5,499
collection of the tax. 5,500
Upon application to the commissioner, a vendor who is 5,502
required to file monthly returns may be relieved of the 5,503
requirement to report and pay the actual tax due, provided that 5,504
the vendor agrees to remit to the treasurer of state payment of 5,505
not less than an amount determined by the commissioner to be the 5,506
average monthly tax liability of the vendor, based upon a review 5,507
of the returns or other information pertaining to such vendor for 5,508
a period of not less than six months nor more than two years 5,509
immediately preceding the filing of the application. Vendors who 5,510
agree to the above conditions shall make and file an annual or 5,511
semiannual reconciliation return, as prescribed by the 5,512
commissioner. The reconciliation return shall be filed by 5,513
mailing or delivering the same to the treasurer of state, 5,514
together with payment of the amount of tax shown to be due 5,515
thereon after deduction of any discount provided in this section. 5,516
Failure of a vendor to comply with any of the above conditions 5,517
may result in immediate reinstatement of the requirement of 5,518
reporting and paying the actual tax liability on each monthly 5,519
return, and the commissioner may at his THE COMMISSIONER'S 5,520
discretion deny the vendor the right to report and pay based upon 5,521
the average monthly liability for a period not to exceed two 5,523
years. The amount determined by the commissioner to be the 5,524
average monthly tax liability of a vendor may be adjusted, based 5,525
upon a review of the returns or other information pertaining to 5,526
the vendor for a period of not less than six months nor more than 5,527
two years preceding such adjustment. 5,528
The commissioner may authorize vendors whose tax liability 5,530
is not such as to merit monthly returns, as determined by the 5,531
130
commissioner upon the basis of administrative costs to the state, 5,532
to make and file returns at less frequent intervals. When 5,533
returns are filed at less frequent intervals in accordance with 5,534
such a determination, the vendor shall be allowed the discount of 5,535
three-fourths of one per cent in consideration for prompt payment 5,536
with the return, provided the return is filed together with 5,537
payment of the amount of tax shown to be due thereon, at the time 5,538
specified by the commissioner. 5,539
The treasurer of state shall stamp or otherwise mark on all 5,541
returns the date received by him THE TREASURER OF STATE and shall 5,543
also show thereon by stamp or otherwise the amount of payment 5,544
received for the period for which the return is filed. 5,545
Thereafter, the treasurer of state shall immediately transmit all 5,546
returns filed under this section to the commissioner. Any vendor 5,547
who fails to file a return or pay the full amount of the tax 5,548
shown on the return to be due under this section and the rules of 5,549
the commissioner shall MAY, for each such return he THE VENDOR 5,550
fails to file or each such tax he THE VENDOR fails to pay in full 5,552
as shown on the return within the period prescribed by this 5,554
section and the rules of the commissioner, BE REQUIRED TO forfeit 5,555
and pay into the state treasury an additional charge of NOT 5,556
EXCEEDING fifty dollars or ten per cent of the tax required to be 5,557
paid for the reporting period, whichever is greater, as revenue 5,558
arising from the tax imposed by this chapter, and such sum may be 5,559
collected by assessment in the manner provided in section 5739.13 5,560
of the Revised Code. The commissioner may remit all or a portion 5,561
of the additional charge and may adopt rules relating thereto TO 5,562
THE IMPOSITION AND REMISSION OF THE ADDITIONAL CHARGE. 5,563
If the amount required to be collected by a vendor from 5,565
consumers is in excess of five per cent of his THE VENDOR'S 5,566
receipts from sales which are taxable under section 5739.02 of 5,568
the Revised Code, or in the case of sales subject to a tax levied 5,569
pursuant to section 5739.021, 5739.023, or 5739.026 of the 5,570
Revised Code, in excess of the percentage equal to the aggregate 5,571
131
rate of such taxes and the tax levied by section 5739.02 of the 5,572
Revised Code, such excess shall be remitted along with the 5,573
remittance of the amount of tax due under section 5739.10 of the 5,574
Revised Code.
The commissioner, if he THE COMMISSIONER deems it necessary 5,576
in order to insure the payment of the tax imposed by this 5,578
chapter, may require returns and payments to be made for other 5,579
than monthly periods. The returns shall be signed by the vendor 5,580
or his THE VENDOR'S authorized agent. 5,581
Any vendor required to file a return and pay the tax under 5,583
this section whose total payment in any year indicated in 5,584
division (A) of section 5739.122 of the Revised Code equals or 5,585
exceeds the amount shown in that division shall make each payment 5,586
required by this section in the second ensuing and each 5,587
succeeding year by electronic funds transfer as prescribed by 5,588
section 5739.122 of the Revised Code, except as otherwise 5,589
prescribed by that section. 5,590
Sec. 5739.122. (A) If the total amount of tax required to 5,597
be paid by a vendor under section 5739.12 of the Revised Code for 5,598
any calendar year indicated in the following schedule equals or 5,599
exceeds the amounts prescribed for that year in the schedule, the 5,600
vendor shall remit each monthly tax payment in the second ensuing 5,601
and each succeeding tax year by electronic funds transfer as 5,602
prescribed by divisions (B) and (C) of this section. 5,603
Year 1992 1993 and thereafter 2000 5,606
THROUGH 1999 AND THEREAFTER 5,607
Tax payment $1,200,000 $600,000 $60,000 5,608
If a vendor's tax payment for each of two consecutive years 5,611
beginning with 1993 2000 is less than six hundred SIXTY thousand 5,613
dollars, the vendor is relieved of the requirement to remit taxes 5,614
by electronic funds transfer for the year that next follows the 5,615
second of the consecutive years in which the tax payment is less 5,616
than six hundred SIXTY thousand dollars, and is relieved of that 5,617
requirement for each succeeding year unless the tax payment in a 5,618
132
subsequent year equals or exceeds six hundred SIXTY thousand 5,619
dollars. 5,620
The tax commissioner shall notify each vendor required to 5,622
remit taxes by electronic funds transfer of the vendor's 5,623
obligation to do so, shall maintain an updated list of those 5,624
vendors, and shall timely certify the list and any additions 5,625
thereto or deletions therefrom to the treasurer of state. Failure 5,627
by the tax commissioner to notify a vendor subject to this 5,628
section to remit taxes by electronic funds transfer does not
relieve the vendor of its obligation to remit taxes by electronic 5,629
funds transfer. 5,630
(B) Vendors required by division (A) of this section to 5,632
remit payments by electronic funds transfer shall remit such 5,633
payments to the treasurer of state in the manner prescribed by 5,634
rules adopted by the treasurer under section 113.061 of the 5,635
Revised Code and on or before the dates specified under section 5,636
5739.12 of the Revised Code. The payment of taxes by electronic 5,637
funds transfer does not affect a vendor's obligation to file the 5,638
monthly return as required under section 5739.12 of the Revised 5,639
Code. 5,640
(C) Any vendor who files returns under section 5739.12 of 5,642
the Revised Code for two or more vendor's licenses shall remit 5,643
tax payments for those licenses by electronic funds transfer if 5,644
the sum of those payments exceeds the amount specified in 5,645
division (A) of this section. 5,646
A vendor required by this section to remit taxes by 5,648
electronic funds transfer may apply to the treasurer of state in 5,649
the manner prescribed by the treasurer to be excused from that 5,650
requirement. The treasurer of state may excuse the vendor from 5,651
remittance by electronic funds transfer for good cause shown for 5,652
the period of time requested by the vendor or for a portion of 5,653
that period. The treasurer shall notify the tax commissioner and 5,654
the vendor of the treasurer's decision as soon as is practicable. 5,655
(D) If a vendor required by this section to remit taxes by 5,657
133
electronic funds transfer remits those taxes by some means other 5,658
than by electronic funds transfer as prescribed by this section 5,659
and the rules adopted by the treasurer of state, and the 5,660
treasurer determines that such failure was not due to reasonable 5,661
cause or was due to willful neglect, the treasurer shall notify 5,662
the tax commissioner of the failure to remit by electronic funds 5,663
transfer and shall provide the commissioner with any information 5,664
used in making that determination. The tax commissioner may 5,665
collect an additional charge by assessment in the manner 5,666
prescribed by section 5739.13 of the Revised Code. The 5,667
additional charge shall equal five per cent of the amount of the 5,668
taxes required to be paid by electronic funds transfer, but shall 5,669
not exceed five thousand dollars. Any additional charge assessed 5,670
under this section is in addition to any other penalty or charge 5,671
imposed under this chapter, and shall be considered as revenue 5,672
arising from taxes imposed under this chapter. The tax 5,673
commissioner may remit all or a portion of such a charge and may 5,674
adopt rules governing such remission. 5,675
No additional charge shall be assessed under this division 5,677
against a vendor that has been notified of its obligation to 5,678
remit taxes under this section and that remits its first two tax 5,679
payments after such notification by some means other than 5,680
electronic funds transfer. The additional charge may be assessed 5,681
upon the remittance of any subsequent tax payment that the vendor 5,682
remits by some means other than electronic funds transfer. 5,683
Sec. 5739.13. (A) If any vendor collects the tax imposed 5,692
by or pursuant to section 5739.02, 5739.021, 5739.023, or 5,693
5739.026 of the Revised Code, and fails to remit the tax to the 5,694
state as prescribed, or on the sale of a motor vehicle, 5,695
watercraft, or outboard motor required to be titled, fails to 5,696
remit payment to a clerk of a court of common pleas as provided 5,697
in section 1548.06 or 4505.06 of the Revised Code, the vendor 5,699
shall be personally liable for any tax collected and not
remitted. The tax commissioner may make an assessment against 5,700
134
such vendor based upon any information in the commissioner's 5,701
possession.
If any vendor fails to collect the tax or any consumer 5,703
fails to pay the tax imposed by or pursuant to section 5739.02, 5,704
5739.021, 5739.023, or 5739.026 of the Revised Code, on any 5,705
transaction subject to the tax, the vendor or consumer shall be 5,706
personally liable for the amount of the tax applicable to the 5,707
transaction. If any vendor fails to pay the annual license 5,708
renewal fee required by division (E) of section 5739.17 of the 5,709
Revised Code, the vendor shall be personally liable for the 5,710
unpaid fee. The commissioner may make an assessment against 5,711
either the vendor or consumer, as the facts may require, based 5,712
upon any information in the commissioner's possession. 5,713
An assessment against a vendor when the tax imposed by or 5,715
pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of 5,716
the Revised Code has not been collected or paid, shall not 5,717
discharge the purchaser's or consumer's liability to reimburse 5,718
the vendor for the tax applicable to such transaction. 5,719
An assessment issued against either, pursuant to this 5,721
section, shall not be considered an election of remedies, nor a 5,722
bar to an assessment against the other for the tax applicable to 5,723
the same transaction, provided that no assessment shall be issued 5,724
against any person for the tax due on a particular transaction if 5,725
the tax on that transaction actually has been paid by another. 5,726
The commissioner may make an assessment against any vendor 5,728
who fails to file a return or remit the proper amount of tax 5,729
required by this chapter, or against any consumer who fails to 5,730
pay the proper amount of tax required by this chapter. When 5,731
information in the possession of the commissioner indicates that 5,732
the amount required to be collected or paid under this chapter is 5,733
greater than the amount remitted by the vendor or paid by the 5,734
consumer, the commissioner may audit a sample of the vendor's 5,735
sales or the consumer's purchases for a representative period, to 5,736
ascertain the per cent of exempt or taxable transactions or the 5,737
135
effective tax rate and may issue an assessment based on the 5,738
audit. The commissioner shall make a good faith effort to reach 5,739
agreement with the vendor or consumer in selecting a 5,740
representative sample period. 5,741
The tax commissioner may make an assessment, based on any 5,743
information in his possession, against any person who fails to 5,744
file a return or remit the proper amount of tax required by 5,745
section 5739.102 of the Revised Code. 5,746
The tax commissioner may issue an assessment on any 5,748
transaction for which any tax imposed under this chapter or 5,749
Chapter 5741. of the Revised Code was due and unpaid on the date 5,750
the vendor or consumer was informed by an agent of the tax 5,751
commissioner of an investigation or audit. If the vendor or 5,752
consumer remits any payment of the tax for the period covered by 5,753
the assessment after the vendor or consumer was informed of the 5,754
investigation or audit, the payment shall be credited against the 5,755
amount of the assessment. 5,756
The commissioner shall give the party assessed written 5,758
notice of the assessment by personal service or certified mail AS 5,759
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 5,760
(B) Unless the party to whom the notice of assessment is 5,762
directed files with the commissioner within thirty SIXTY days 5,763
after service of the notice of assessment, either personally or 5,765
by certified mail, a petition for reassessment in writing, signed 5,766
by the party assessed, or by the party's authorized agent having 5,768
knowledge of the facts, the assessment shall become final and the 5,769
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate 5,770
the objections of the party assessed, but additional objections 5,771
may be raised in writing if received prior to the date shown on 5,772
the final determination by the commissioner. 5,773
Unless the petitioner waives a hearing, the commissioner 5,775
shall assign a time and place for the hearing on the petition and 5,776
notify the petitioner of the time and place of the hearing by 5,777
136
personal service or certified mail, but the commissioner may 5,778
continue the hearing from time to time if necessary. 5,779
The commissioner may make such correction to the assessment 5,781
as the commissioner finds proper. The commissioner shall serve a 5,783
copy of the commissioner's final determination on the petitioner 5,784
by personal service or certified mail, and the commissioner's 5,785
decision in the matter shall be final, subject to appeal as 5,787
provided in section 5717.02 of the Revised Code. Only objections 5,788
decided on the merits by the board of tax appeals or a court 5,789
shall be given collateral estoppel or res judicata effect in 5,790
considering an application for refund of amounts paid pursuant to 5,791
the assessment.
(C) After an assessment becomes final, if any portion of 5,793
the assessment remains unpaid, including accrued interest, a 5,794
certified copy of the commissioner's entry making the assessment 5,796
final may be filed in the office of the clerk of the court of 5,797
common pleas in the county in which the place of business of the 5,798
party assessed is located or the county in which the party 5,799
assessed resides. If the party assessed maintains no place of 5,800
business in this state and is not a resident of this state, the 5,801
certified copy of the entry may be filed in the office of the 5,802
clerk of the court of common pleas of Franklin county. 5,803
The clerk, immediately upon the filing of such entry, shall 5,805
enter a judgment for the state against the party assessed in the 5,806
amount shown on the entry. The judgment may be filed by the 5,807
clerk in a loose-leaf book entitled "special judgments for state, 5,808
county, and transit authority retail sales tax" or, if 5,809
appropriate, "special judgments for resort area excise tax," and 5,811
shall have the same effect as other judgments. Execution shall 5,812
issue upon the judgment upon the request of the tax commissioner, 5,813
and all laws applicable to sales on execution shall apply to 5,814
sales made under the judgment except as otherwise provided in 5,815
this chapter.
The portion of the assessment not paid within thirty SIXTY 5,818
137
days after the date the assessment was issued shall bear interest 5,819
at the rate per annum prescribed by section 5703.47 of the 5,820
Revised Code from the day the tax commissioner issues the 5,822
assessment until the assessment is paid. Interest shall be paid 5,823
in the same manner as the tax and may be collected by issuing an 5,824
assessment under this section. 5,825
(D) All money collected by the commissioner under this 5,827
section shall be paid to the treasurer of state, and when paid 5,828
shall be considered as revenue arising from the taxes imposed by 5,829
or pursuant to sections 5739.01 to 5739.31 of the Revised Code. 5,830
Sec. 5739.133. (A) A penalty shall MAY be added to every 5,839
amount assessed under section 5739.13 or 5739.15 of the Revised 5,840
Code as follows: 5,841
(1) In the case of an assessment against a person who 5,843
fails to file a return COLLECT AND REMIT THE TAX required by this 5,845
chapter OR CHAPTER 5741. OF THE REVISED CODE, UP TO fifty per 5,846
cent of the amount assessed; 5,847
(2) In the case of a person whom the tax commissioner 5,849
believes has collected the tax but failed to remit it to the 5,850
state as required by this chapter OR CHAPTER 5741. OF THE REVISED 5,852
CODE, UP TO fifty per cent of the amount assessed; 5,853
(3) In the case of all other assessments, UP TO fifteen 5,855
per cent of the amount assessed. 5,856
No amount assessed under section 5739.13 or 5739.15 of the 5,858
Revised Code shall be subject to a penalty under this division 5,859
SECTION in excess of fifty per cent of the amount assessed. 5,861
(B) All assessments issued under section 5739.13 and 5,863
5739.15 of the Revised Code shall include preassessment interest 5,864
computed at the rate per annum prescribed by section 5703.47 of 5,866
the Revised Code. Beginning January 1, 1988, preassessment
interest shall begin to accrue on the first day of January of the 5,867
year following the date on which the person assessed was required 5,868
to report and pay the tax under this chapter or Chapter 5741. of 5,870
the Revised Code, and shall run until the date of the notice of 5,871
138
assessment. If an assessment is issued within the first twelve 5,872
months after the interest begins to accrue, no preassessment 5,873
interest shall be assessed. With respect to taxes required to be 5,874
paid under this chapter or Chapter 5741. of the Revised Code on 5,875
or after January 1, 1998, interest shall accrue as prescribed in 5,876
division (A) of section 5739.132 of the Revised Code.
(C) The commissioner may adopt rules providing for the 5,878
IMPOSITION AND remission of any penalty provided for under this 5,879
section.
Sec. 5739.15. (A) If the tax commissioner finds that a 5,888
vendor, consumer, or officer, employee, or trustee of a 5,889
corporation or business trust who is liable for any tax or charge 5,890
levied by this chapter or Chapter 5741. of the Revised Code is 5,891
about to depart from the state, remove the person's property from 5,893
the state, conceal the person's self or property, or do any other
act tending to prejudice, obstruct, or render wholly or partly 5,894
ineffectual proceedings to collect the tax unless the proceedings 5,895
are commenced without delay, or if the commissioner believes that 5,896
the collection of the amount due from any vendor, consumer, or 5,897
officer, employee, or trustee of a corporation or business trust 5,898
will be jeopardized by delay, the commissioner may issue a 5,899
jeopardy assessment against the person for the amount of the tax 5,900
or charge plus a penalty as provided by section 5739.133 of the 5,901
Revised Code. Upon issuance of a jeopardy assessment under this 5,902
division, the total amount assessed shall immediately be due and 5,903
payable unless security is provided pursuant to division (C) of 5,904
this section. Any assessment issued under this section shall 5,905
bear interest as prescribed by section 5739.13 of the Revised 5,906
Code.
(B) The commissioner immediately shall file an entry with 5,908
the clerk of the court of common pleas in the same manner and 5,909
with the same effect as provided in section 5739.13 of the 5,910
Revised Code. Notice of the jeopardy assessment shall be served 5,911
on the person assessed or the person's legal representative, AS 5,912
139
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE, within five days 5,914
of the filing of the entry. The person assessed may petition for 5,915
reassessment within thirty SIXTY days of receipt of the notice of 5,916
jeopardy assessment in the same manner as provided in section 5,917
5739.13 of the Revised Code. Full or partial payment of the 5,918
assessment shall not prejudice the commissioner's consideration 5,919
of the merits of the assessment as contested by the petition for 5,920
reassessment. Upon notification of the existence of the judgment 5,921
filed pursuant to this division, any public official having 5,922
control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property 5,923
to the commissioner as full or partial satisfaction of the 5,924
jeopardy assessment. However, funds or property needed as 5,925
evidence in criminal proceedings or that is expected to be 5,926
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the 5,927
Revised Code, need not be relinquished by the public official. 5,928
Upon disposition of criminal and forfeiture proceedings, funds 5,929
and property not needed as evidence and not forfeited shall be 5,930
delivered to the commissioner. 5,931
(C) If the person subject to a jeopardy assessment files a 5,933
petition for reassessment and posts security satisfactory to the 5,934
commissioner in an amount sufficient to satisfy the unpaid 5,935
balance of the assessment, execution on the judgment shall be 5,936
stayed pending disposition of the petition for reassessment and 5,937
all appeals resulting from the petition. If the security is 5,938
sufficient to satisfy the full amount of the assessment, the 5,939
commissioner shall return any funds or property of the person 5,940
previously seized. Upon satisfaction of the assessment, the 5,941
commissioner shall order the security released and the judgment 5,942
vacated. 5,943
Sec. 5739.17. (A) No person shall engage in making retail 5,952
sales subject to a tax imposed by or pursuant to section 5739.02, 5,953
5739.021, 5739.023, or 5739.026 of the Revised Code as a business 5,954
without having a license therefor, except as otherwise provided 5,955
140
in divisions (A)(1), (2), and (3) of this section. 5,956
(1) In the dissolution of a partnership by death, the 5,958
surviving partner may operate under the license of the 5,959
partnership for a period of sixty days. 5,960
(2) The heirs or legal representatives of deceased 5,962
persons, and receivers and trustees in bankruptcy, appointed by 5,963
any competent authority, may operate under the license of the 5,964
person so succeeded in possession. 5,965
(3) Two or more persons who are not partners may operate a 5,967
single place of business under one license. In such case neither 5,968
the retirement of any such person from business at that place of 5,969
business, nor the entrance of any person, under an existing 5,970
arrangement, shall affect the license or require the issuance of 5,971
a new license, unless the person retiring from the business is 5,972
the individual named on the vendor's license. 5,973
Except as otherwise provided in this section, each 5,975
applicant for a license shall make out and deliver to the county 5,976
auditor of each county in which the applicant desires to engage 5,978
in business, upon a blank to be furnished by such auditor for 5,979
that purpose, a statement showing the name of the applicant, each 5,980
place of business in the county where the applicant will make 5,981
retail sales, the nature of the business, and any other 5,982
information the tax commissioner reasonably prescribes in the 5,983
form of A statement prescribed by the commissioner. 5,984
At the time of making the application, the applicant shall 5,986
pay into the county treasury a license fee in the sum of 5,987
twenty-five dollars for each fixed place of business in the 5,988
county where retail sales will be consummated. Upon receipt of 5,989
the application and exhibition of the county treasurer's receipt, 5,990
showing the payment of the license fee, the county auditor shall 5,991
issue to the applicant a license for each fixed place of business 5,992
designated in the application, authorizing the applicant to 5,993
engage in business at that location. If a vendor's identity or 5,995
the location of the vendor's place of business changes, the 5,996
141
vendor shall apply for a new license. IF A VENDOR WISHES TO MOVE 5,997
AN EXISTING FIXED PLACE OF BUSINESS TO A NEW LOCATION WITHIN THE 5,998
SAME COUNTY, THE VENDOR SHALL OBTAIN A NEW VENDOR'S LICENSE OR 5,999
SUBMIT A REQUEST TO THE TAX COMMISSIONER TO TRANSFER THE EXISTING 6,001
VENDOR'S LICENSE TO THE NEW LOCATION. WHEN THE NEW LOCATION HAS 6,002
BEEN VERIFIED AS BEING WITHIN THE SAME COUNTY, THE TAX
COMMISSIONER SHALL AUTHORIZE THE TRANSFER AND NOTIFY THE COUNTY 6,003
AUDITOR OF THE CHANGE OF LOCATION. IF A VENDOR WISHES TO MOVE AN 6,004
EXISTING FIXED PLACE OF BUSINESS TO ANOTHER COUNTY, THE VENDOR'S 6,005
LICENSE SHALL NOT TRANSFER AND THE VENDOR SHALL OBTAIN A NEW 6,006
VENDOR'S LICENSE FROM THE COUNTY IN WHICH THE BUSINESS IS TO BE 6,007
LOCATED. The form of the license shall be prescribed by the 6,008
commissioner. The fees collected shall be credited to the 6,009
general fund of the county.
A VENDOR THAT MAKES RETAIL SALES SUBJECT TO TAX UNDER 6,011
CHAPTER 5739. OF THE REVISED CODE PURSUANT TO A PERMIT ISSUED BY 6,012
THE DIVISION OF LIQUOR CONTROL SHALL OBTAIN A VENDOR'S LICENSE IN 6,013
THE IDENTICAL NAME AND FOR THE IDENTICAL ADDRESS AS SHOWN ON THE 6,014
PERMIT.
Except as otherwise provided in this section, if a vendor 6,016
has no fixed place of business and sells from a vehicle, each 6,017
vehicle intended to be used within a county constitutes a place 6,018
of business for the purpose of this section. 6,019
(B) As used in this division, "transient vendor" means any 6,021
person who leases titled motor vehicles, titled watercraft, or 6,022
titled outboard motors or, in the usual course of the person's 6,024
business, transports inventory, stock of goods, or similar
tangible personal property to a temporary place of business in a 6,026
county in which the person has no fixed place of business, for 6,027
the purpose of making retail sales of such property. A 6,029
"temporary place of business" means any public or quasi-public 6,030
place including, but not limited to, a hotel, rooming house, 6,031
storeroom, building, part of a building, tent, vacant lot, 6,032
railroad car, or motor vehicle that is temporarily occupied for 6,033
142
the purpose of making retail sales of goods to the public. A 6,034
place of business is not temporary if the same person conducted 6,035
business at the place continuously for more than six months or 6,036
occupied the premises as the person's permanent residence for 6,037
more than six months, or if the person intends it to be a fixed 6,039
place of business.
As used in this division, "limited vendor" means any person 6,041
who, in order to participate in a temporary exhibition, show, 6,042
fair, flea market, or similar event, transports inventory, stock 6,043
of goods, or similar property to a temporary place of business 6,044
located at a temporary exhibition, show, fair, flea market, or 6,045
similar event held in a county in which the person has no fixed 6,047
place of business for which the person holds a vendor's license 6,048
for the purpose of making retail sales of such property. 6,049
Any transient vendor, in lieu of obtaining a vendor's 6,051
license under division (A) of this section for counties in which 6,052
the transient vendor has no fixed place of business, may apply to 6,054
the tax commissioner, on a form prescribed by the commissioner, 6,055
for a transient vendor's license. The transient vendor's license 6,057
authorizes the transient vendor to make retail sales in any 6,058
county in which the transient vendor does not maintain a fixed 6,059
place of business. Any holder of a transient vendor's license 6,060
shall not be required to obtain a separate vendor's license from 6,061
the county auditor in that county. Upon the tax commissioner's 6,062
determination that an applicant is a transient vendor, the 6,063
applicant shall pay a license fee in the amount of one hundred 6,064
TWENTY-FIVE dollars, at which time the tax commissioner shall 6,066
issue the license. The tax commissioner may require a vendor to 6,067
be licensed as a transient vendor if, in the opinion of the 6,068
commissioner, such licensing is necessary for the efficient
administration of the tax. 6,069
Any limited vendor, in lieu of obtaining a vendor's license 6,071
under division (A) of this section for a county in which the 6,072
limited vendor has no fixed place of business for which the 6,073
143
limited vendor holds a vendor's license may apply to the tax 6,074
commissioner or the county auditor of that county, on a form 6,076
prescribed by the commissioner, for a limited vendor's license. 6,077
The limited vendor's license authorizes the limited vendor to 6,078
make retail sales at a temporary exhibition, show, fair, flea 6,079
market, or similar event held in that county for the duration of 6,080
the event or twenty days, whichever period is shorter. Any 6,081
holder of a limited vendor's license shall not be required to 6,082
obtain a separate vendor's license pursuant to division (A) of 6,083
this section from the county auditor in that county or transient 6,084
vendor's license from the tax commissioner in order to 6,085
participate in the event. The applicant shall pay a license fee 6,086
in the amount of five dollars, at which time the tax commissioner 6,087
or county auditor shall issue a license for making retail sales 6,088
at the event designated in the application. Fees collected for 6,089
licenses issued by a county auditor shall be credited to the 6,090
general fund of the county. Fees collected for licenses issued 6,091
by the tax commissioner shall be credited to the state general 6,092
revenue fund.
A limited vendor who makes retail sales at an event and who 6,094
is not the holder of a transient vendor's license or a vendor's 6,095
license for the county in which the event is held, shall file a 6,096
tax return for and remit the tax on any sales made at the event 6,097
according and subject to the requirements of section 5739.12 of 6,098
the Revised Code; except that the return and the remittance shall 6,099
be made within fifteen days of the close of the event. 6,100
Any holder of a valid transient vendor's license may make 6,102
retail sales as a limited vendor at a temporary exhibition, show, 6,103
fair, flea market, or similar event, held anywhere in the state 6,104
without obtaining a limited vendor's license and without 6,105
complying with any provision of section 311.37 of the Revised 6,106
Code. Any holder of a valid vendor's license may make retail 6,107
sales as a limited TRANSIENT vendor at a temporary exhibition, 6,108
show, fair, flea market, or similar event held in any county in 6,110
144
which the vendor maintains a fixed place of business for which 6,111
the vendor holds a vendor's license without obtaining a limited 6,113
TRANSIENT vendor's license.
(C) As used in this division, "service vendor" means any 6,115
person who, in the usual course of the person's business, sells 6,117
services described in division (B)(3)(e), (f), (g), (h), (i), 6,118
(j), (k), (l), or (m) of section 5739.01 of the Revised Code. 6,119
Every service vendor shall make application to the tax 6,121
commissioner for a service vendor's license. Each applicant 6,122
shall pay a license fee in the amount of twenty-five dollars. 6,123
Upon the commissioner's determination that an applicant is a 6,124
service vendor and payment of the fee, the commissioner shall 6,125
issue the applicant a service vendor's license. 6,126
Only sales described in division (B)(3)(e), (f), (g), (h), 6,128
(i), (j), (k), (l), or (m) of section 5739.01 of the Revised Code 6,130
may be made under authority of a service vendor's license, and 6,131
that license authorizes sales to be made at any place in this 6,132
state. Any service vendor who makes sales of other services or 6,133
tangible personal property subject to the sales tax also shall be 6,134
licensed under division (A), (B), or (D) of this section. 6,135
(D) As used in this division, "delivery vendor" means any 6,137
vendor who engages in one or more of the activities described in 6,138
divisions (D)(1) to (4) of this section, and who maintains no 6,139
store, showroom, or similar fixed place of business or other 6,140
location where merchandise regularly is offered for sale or 6,141
displayed or shown in catalogs for selection or pick-up by 6,142
consumers, or where consumers bring goods for repair or other 6,143
service. 6,144
(1) The vendor makes retail sales of tangible personal 6,146
property; 6,147
(2) The vendor rents or leases, at retail, tangible 6,149
personal property, except titled motor vehicles, titled 6,150
watercraft, or titled outboard motors; 6,151
(3) The vendor provides a service, at retail, described in 6,153
145
division (B)(3)(a), (b), (c), or (d) of section 5739.01 of the 6,154
Revised Code; or 6,155
(4) The vendor makes retail sales of warranty, maintenance 6,157
or service contracts, or similar agreements as described in 6,158
division (B)(7) of section 5739.01 of the Revised Code. 6,159
A transient or limited vendor or a seller registered 6,161
pursuant to section 5741.17 of the Revised Code is not a delivery 6,162
vendor. 6,163
Delivery vendors shall apply to the tax commissioner, on a 6,165
form prescribed by the commissioner, for a delivery vendor's 6,166
license. Each applicant shall pay a license fee of twenty-five 6,167
dollars for each delivery vendor's license, to be credited to the 6,168
general revenue fund. Upon the commissioner's determination that 6,169
the applicant is a delivery vendor, the commissioner shall issue 6,170
the license. A delivery vendor's license authorizes retail sales 6,171
to be made throughout the state. All sales of the vendor must be 6,172
reported under the delivery license. The commissioner may 6,173
require a vendor to be licensed as a delivery vendor if, in the 6,174
opinion of the commissioner, such licensing is necessary for the 6,175
efficient administration of the tax. The commissioner shall not 6,176
issue a delivery vendor license to a vendor who holds a license 6,177
issued under division (A) of this section. 6,178
(E) On or before the first day of February of each year, 6,180
each vendor, except limited vendors, shall renew each vendor's 6,181
license in the manner prescribed by the commissioner. The vendor 6,182
shall pay a renewal fee of ten dollars for each license other 6,183
than a transient vendor's license, and forty dollars for a 6,184
transient vendor's license. Failure to pay the renewal fee 6,185
timely shall be cause for the commissioner to revoke the license 6,186
pursuant to section 5739.19 of the Revised Code or to suspend the 6,187
license pursuant to section 5739.30 of the Revised Code. All 6,188
renewal fees shall be credited to the general revenue fund. 6,189
(F) Any transient vendor or limited vendor who is issued a 6,191
license pursuant to this section shall display the license or a 6,192
146
copy of it prominently, in plain view, at every place of business 6,193
of the transient or limited vendor. Every owner, organizer, or 6,194
promoter who operates a fair, flea market, show, exhibition, 6,195
convention, or similar event at which transient or limited 6,196
vendors are present shall keep a comprehensive record of all such 6,197
vendors, listing the vendor's name, permanent address, vendor's 6,198
license number, and the type of goods sold. Such records shall 6,199
be kept for four years and shall be open to inspection by the tax 6,200
commissioner. 6,201
Sec. 5739.19. The tax commissioner may revoke any retail 6,210
vendor's license if he determines UPON ASCERTAINING that the 6,211
vendor has failed to comply with the requirements of this chapter 6,213
and that the vendor has no need for the license because he THE 6,214
VENDOR is not engaged in making taxable retail sales. Notice of 6,215
the revocation shall be delivered to the vendor personally or by 6,216
certified mail, return receipt requested. The revocation shall 6,217
be effective on the first day of the month following the 6,218
expiration of fifteen days after the vendor received the notice 6,219
of the revocation.
The revocation of the vendor's license shall be stayed if, 6,221
within fifteen days after receiving notice of the revocation, the 6,222
vendor objects, in writing, to the revocation and pays all 6,223
outstanding tax and penalties resulting from his failure to 6,225
comply with the provisions of this chapter, or provides evidence
that the tax and any penalties have been paid. The commissioner 6,226
shall consider the written objections of the vendor and issue a 6,227
final determination on the revocation of the vendor's license. 6,228
The commissioner's final determination may be appealed to the 6,229
board of tax appeals pursuant to section 5717.02 of the Revised 6,230
Code. The revocation shall be effective on the first day of the 6,231
month following the expiration of all time limits for appeal. 6,232
Sec. 5739.30. (A) No person, including any officer, 6,241
employee, or trustee of a corporation or business trust, shall 6,242
fail to file any return or report required to be filed by this 6,243
147
chapter, or file or cause to be filed any incomplete, false or 6,244
fradulent FRAUDULENT return, report, or statement, or aid or abet 6,246
another in the filing of any false or fraudulent return, report, 6,247
or statement. 6,248
(B) If any vendor required to file monthly returns under 6,250
section 5739.12 of the Revised Code fails, on two consecutive 6,251
months or on three or more months within a twelve-month period, 6,252
to file such returns when due or to pay the tax thereon, OR if 6,253
any vendor authorized by the tax commissioner to file semiannual 6,254
returns, fails on two or more occasions within a twenty-four 6,255
month period, to file such returns when due or to pay the tax due 6,256
thereon, or if any vendor fails to pay the annual license renewal 6,257
fee required by division (E) of section 5739.17 of the Revised 6,258
Code, the commissioner may do any of the following: 6,259
(1) Require the vendor to furnish security in an amount 6,261
equal to the average tax liability of the vendor for a period of 6,262
one year, as determined by the commissioner from a review of 6,263
returns or other information pertaining to the vendor, which 6,264
amount shall in no event be less than one thousand dollars. The 6,265
security may be in the form of a corporate surety bond, 6,266
satisfactory to the commissioner, conditioned upon payment of the 6,267
tax due with the returns from the vendor. The security shall be 6,268
filed within ten days following the vendor's receipt of the 6,269
notice from the commissioner of its requirements. 6,270
(2) Suspend the license issued to the vendor pursuant to 6,272
section 5739.17 of the Revised Code. The suspension shall be 6,273
effective ten days after service of written notice to the vendor 6,274
of the commissioner's intention to do so. The notice shall be 6,275
served upon the vendor personally or by certified mail. On the 6,276
first day of the suspension, the commissioner shall cause to be 6,277
posted, at every public entrance of the vendor's premises, a 6,278
notice identifying the vendor and the location and informing the 6,279
public that the vendor's license is under suspension and that no 6,280
retail sales may be transacted at that location. No person, 6,281
148
other than the commissioner or his THE COMMISSIONER'S agent or 6,282
employee, shall remove, cover, or deface the posted notice. No 6,283
license which has been suspended under this section shall be 6,284
reinstated, and no posted notice shall be removed, until the 6,285
vendor has filed complete and correct returns for all periods in 6,286
which no return had been filed and paid the full amount of the 6,287
tax, penalties, and other charges due on those returns. 6,288
A corporate surety bond filed under this section shall be 6,290
returned to the vendor if, for a period of twelve consecutive 6,291
months following the date the bond was filed, the vendor has 6,292
filed all returns and remitted payment with them within the time 6,293
prescribed in section 5739.12 of the Revised Code. 6,294
Sec. 5741.02. (A) For the use of the general revenue fund 6,303
of the state, an excise tax is hereby levied on the storage, use, 6,304
or other consumption in this state of tangible personal property 6,305
or the benefit realized in this state of any service provided. 6,306
The tax shall be collected pursuant to the schedules in section 6,307
5739.025 of the Revised Code. 6,308
(B) Each consumer, storing, using, or otherwise consuming 6,310
in this state tangible personal property or realizing in this 6,311
state the benefit of any service provided, shall be liable for 6,312
the tax, and such liability shall not be extinguished until the 6,313
tax has been paid to this state; provided, that the consumer 6,314
shall be relieved from further liability for the tax if the tax 6,315
has been paid to a seller in accordance with section 5741.04 of 6,316
the Revised Code or prepaid by the seller in accordance with 6,317
section 5741.06 of the Revised Code. 6,318
(C) The tax does not apply to the storage, use, or 6,320
consumption in this state of the following described tangible 6,321
personal property or services, nor to the storage, use, or 6,322
consumption or benefit in this state of tangible personal 6,323
property or services purchased under the following described 6,324
circumstances: 6,325
(1) When the sale of property or service in this state is 6,327
149
subject to the excise tax imposed by sections 5739.01 to 5739.31 6,328
of the Revised Code, provided said tax has been paid; 6,329
(2) Except as provided in division (D) of this section, 6,331
tangible personal property or services, the acquisition of which, 6,332
if made in Ohio, would be a sale not subject to the tax imposed 6,333
by sections 5739.01 to 5739.31 of the Revised Code; 6,334
(3) Property or services, the storage, use, or other 6,336
consumption of or benefit from which this state is prohibited 6,337
from taxing by the Constitution of the United States, laws of the 6,339
United States, or the Constitution of this state. This exemption 6,341
shall not exempt from the application of the tax imposed by this 6,342
section the storage, use, or consumption of tangible personal 6,343
property that was purchased in interstate commerce, but that has 6,345
come to rest in this state, provided that fuel to be used or 6,346
transported in carrying on interstate commerce that is stopped 6,348
within this state pending transfer from one conveyance to another
is exempt from the excise tax imposed by this section and section 6,349
5739.02 of the Revised Code; 6,350
(4) Transient use of tangible personal property in this 6,352
state by a nonresident tourist or vacationer, or a non-business 6,353
use within this state by a nonresident of this state, if the 6,354
property so used was purchased outside this state for use outside 6,355
this state and is not required to be registered or licensed under 6,356
the laws of this state; 6,357
(5) Tangible personal property or services rendered upon 6,359
which taxes have been paid to another jurisdiction to the extent 6,360
of the amount of the tax paid to such other jurisdiction. Where 6,361
the amount of the tax imposed by this section and imposed 6,362
pursuant to section 5741.021, 5741.022, or 5741.023 of the 6,363
Revised Code exceeds the amount paid to another jurisdiction, the 6,364
difference shall be allocated between the tax imposed by this 6,365
section and any tax imposed by a county or a transit authority 6,366
pursuant to section 5741.021, 5741.022, or 5741.023 of the 6,367
Revised Code, in proportion to the respective rates of such 6,368
150
taxes. 6,369
As used in this subdivision, "taxes paid to another 6,371
jurisdiction" means the total amount of retail sales or use tax 6,372
or similar tax based upon the sale, purchase, or use of tangible 6,373
personal property or services rendered legally, levied by and 6,374
paid to another state or political subdivision thereof, or to the 6,375
District of Columbia, where the payment of such tax does not 6,376
entitle the taxpayer to any refund or credit for such payment. 6,377
(6) The transfer of a used manufactured home or used 6,379
mobile home, as defined by section 5739.0210 of the Revised Code, 6,380
made on or after January 1, 2000. 6,381
(D) The tax applies to the storage, use, or other 6,383
consumption in this state of tangible personal property or 6,384
services, the acquisition of which at the time of sale was 6,385
excepted under division (E)(1) of section 5739.01 of the Revised 6,386
Code from the tax imposed by section 5739.02 of the Revised Code, 6,387
but which has subsequently been temporarily or permanently 6,388
stored, used, or otherwise consumed in a taxable manner. 6,389
(E) IF ANY TRANSACTION IS CLAIMED TO BE EXEMPT UNDER 6,391
DIVISION (E) OF SECTION 5739.01 OF THE REVISED CODE OR UNDER 6,393
SECTION 5739.02 OF THE REVISED CODE, WITH THE EXCEPTION OF 6,394
DIVISIONS (B)(1) TO (11) OR (29) OF SECTION 5739.02 OF THE 6,395
REVISED CODE, THE CONSUMER SHALL FURNISH TO THE SELLER, AND THE 6,396
SELLER SHALL OBTAIN FROM THE CONSUMER, A CERTIFICATE SPECIFYING 6,397
THE REASON THAT THE TRANSACTION IS NOT SUBJECT TO THE TAX. IF 6,398
THE TRANSACTION IS CLAIMED TO BE EXEMPT UNDER DIVISION (B)(13) OF 6,399
SECTION 5739.02 OF THE REVISED CODE, THE EXEMPTION CERTIFICATE 6,400
SHALL BE SIGNED BY BOTH THE CONTRACTOR AND CONTRACTEE, AND THE 6,401
CONTRACTEE SHALL BE DEEMED TO BE THE CONSUMER OF ALL ITEMS
PURCHASED UNDER THE CLAIM OF EXEMPTION IF IT IS SUBSEQUENTLY 6,403
DETERMINED THAT THE EXEMPTION IS NOT PROPERLY CLAIMED. THE 6,404
CERTIFICATE SHALL BE IN SUCH FORM AS THE TAX COMMISSIONER BY RULE 6,405
PRESCRIBES. IF NO CERTIFICATE IS FURNISHED OR OBTAINED WITHIN 6,406
THE PERIOD FOR FILING THE RETURN FOR THE PERIOD IN WHICH THE 6,407
151
TRANSACTION IS CONSUMMATED, IT SHALL BE PRESUMED THAT THE TAX 6,408
APPLIES. THE FAILURE TO HAVE SO FURNISHED OR OBTAINED A 6,409
CERTIFICATE SHALL NOT PRECLUDE A SELLER OR CONSUMER FROM 6,410
ESTABLISHING, WITHIN ONE HUNDRED TWENTY DAYS OF THE GIVING OF 6,411
NOTICE BY THE COMMISSIONER OF INTENTION TO LEVY AN ASSESSMENT, 6,412
THAT THE TRANSACTION IS NOT SUBJECT TO THE TAX.
(F) A SELLER WHO FILES A PETITION FOR REASSESSMENT 6,414
CONTESTING THE ASSESSMENT OF TAX ON TRANSACTIONS FOR WHICH THE 6,415
SELLER OBTAINED NO VALID EXEMPTION CERTIFICATES AND FOR WHICH THE 6,416
SELLER FAILED TO ESTABLISH THAT THE TRANSACTIONS WERE NOT SUBJECT 6,417
TO THE TAX DURING THE ONE-HUNDRED-TWENTY-DAY PERIOD ALLOWED UNDER 6,418
DIVISION (E) OF THIS SECTION MAY PRESENT TO THE TAX COMMISSIONER 6,419
ADDITIONAL EVIDENCE TO PROVE THAT THE TRANSACTIONS WERE EXEMPT. 6,420
THE SELLER SHALL FILE SUCH EVIDENCE WITHIN NINETY DAYS OF THE 6,421
RECEIPT BY THE SELLER OF THE NOTICE OF ASSESSMENT, EXCEPT THAT, 6,422
UPON APPLICATION AND FOR REASONABLE CAUSE, THE TAX COMMISSIONER 6,423
MAY EXTEND THE PERIOD FOR SUBMITTING SUCH EVIDENCE THIRTY DAYS. 6,424
(G) For the purpose of the proper administration of 6,426
sections 5741.01 to 5741.22 of the Revised Code, and to prevent 6,427
the evasion of the tax hereby levied, it shall be presumed that 6,428
any use, storage, or other consumption of tangible personal 6,429
property in this state is subject to the tax until the contrary 6,430
is established. 6,431
Sec. 5741.121. (A) If the total amount of tax required to 6,440
be paid by a consumer under section 5741.12 of the Revised Code 6,441
for any year indicated in the following schedule equals or 6,442
exceeds the amount prescribed for that year in the schedule, the 6,443
consumer shall remit each monthly tax payment in the second 6,444
ensuing and each succeeding year by electronic funds transfer as 6,445
prescribed by division (B) of this section. 6,446
Year 1992 1993 and thereafter 2000 6,449
THROUGH 1999 AND THEREAFTER 6,450
Tax payment $1,200,000 $600,000 $60,000 6,451
If a consumer's tax payment for each of two consecutive 6,454
152
years beginning with 1993 2000 is less than six hundred SIXTY 6,456
thousand dollars, the consumer is relieved of the requirement to 6,457
remit taxes by electronic funds transfer for the year that next 6,458
follows the second of the consecutive years in which the tax 6,459
payment is less than six hundred SIXTY thousand dollars, and is 6,460
relieved of that requirement for each succeeding year unless the 6,462
tax payment in a subsequent year equals or exceeds six hundred 6,463
SIXTY thousand dollars. 6,464
The tax commissioner shall notify each consumer required to 6,466
remit taxes by electronic funds transfer of the consumer's 6,467
obligation to do so, shall maintain an updated list of those 6,468
consumers, and shall timely certify the list and any additions 6,469
thereto or deletions therefrom to the treasurer of state. Failure 6,471
by the tax commissioner to notify a consumer subject to this 6,472
section to remit taxes by electronic funds transfer does not
relieve the consumer of its THE CONSUMER'S obligation to remit 6,473
taxes by electronic funds transfer. 6,474
(B) Consumers required by division (A) of this section to 6,476
remit payments by electronic funds transfer shall remit such 6,477
payments to the treasurer of state in the manner prescribed by 6,478
rules adopted by the treasurer under section 113.061 of the 6,479
Revised Code and on or before the dates specified under section 6,480
5741.12 of the Revised Code. The payment of taxes by electronic 6,481
funds transfer does not affect a consumer's obligation to file 6,482
the monthly return as required under section 5741.12 of the 6,483
Revised Code. 6,484
A consumer required by this section to remit taxes by 6,486
electronic funds transfer may apply to the treasurer of state in 6,487
the manner prescribed by the treasurer to be excused from that 6,488
requirement. The treasurer of state may excuse the consumer from 6,489
remittance by electronic funds transfer for good cause shown for 6,490
the period of time requested by the consumer or for a portion of 6,491
that period. The treasurer shall notify the tax commissioner and 6,492
the consumer of the treasurer's decision as soon as is 6,493
153
practicable. 6,494
(C) If a consumer required by this section to remit taxes 6,496
by electronic funds transfer remits those taxes by some means 6,497
other than by electronic funds transfer as prescribed by the 6,498
rules adopted by the treasurer of state, and the treasurer 6,499
determines that such failure was not due to reasonable cause or 6,500
was due to willful neglect, the treasurer shall notify the tax 6,501
commissioner of the failure to remit by electronic funds transfer 6,502
and shall provide the commissioner with any information used in 6,503
making that determination. The tax commissioner may collect an 6,504
additional charge by assessment in the manner prescribed by 6,505
section 5741.13 of the Revised Code. The additional charge shall 6,506
equal five per cent of the amount of the taxes required to be 6,507
paid by electronic funds transfer, but shall not exceed five 6,508
thousand dollars. Any additional charge assessed under this 6,509
section is in addition to any other penalty or charge imposed 6,510
under this chapter, and shall be considered as revenue arising 6,511
from taxes imposed under this chapter. The tax commissioner may 6,512
remit all or a portion of such a charge and may adopt rules 6,513
governing such remission. 6,514
No additional charge shall be assessed under this division 6,516
against a consumer that has been notified of its THE CONSUMER'S 6,517
obligation to remit taxes under this section and that remits its 6,518
first two tax payments after such notification by some means 6,519
other than electronic funds transfer. The additional charge may 6,520
be assessed upon the remittance of any subsequent tax payment 6,521
that the consumer remits by some means other than electronic 6,522
funds transfer. 6,523
Sec. 5743.03. Except as provided in section 5743.04 of the 6,532
Revised Code, the taxes imposed under sections 5743.02, 5743.023, 6,533
5743.024, and 5743.026 of the Revised Code shall be paid by the 6,535
purchase of stamps. A stamp shall be affixed to each package of 6,536
an aggregate denomination not less than the amount of the tax 6,537
upon the contents thereof. The stamp, so affixed, shall be 6,538
154
prima-facie evidence of payment of the tax. Except as is 6,539
provided in the rules prescribed by the tax commissioner under 6,540
authority of sections 5743.01 to 5743.20 of the Revised Code, and 6,541
unless such stamps have been previously affixed, they shall be so 6,542
affixed by each wholesale dealer, and canceled by writing or 6,543
stamping across the face thereof the number assigned to such 6,544
wholesale dealer by the tax commissioner for that purpose, prior 6,545
to the delivery of any cigarettes to any person in this state, or 6,546
in the case of a tax levied pursuant to section 5743.024 or 6,547
5743.026 of the Revised Code, prior to the delivery of cigarettes 6,549
to any person in the county in which the tax is levied. 6,550
Except as provided in the rules prescribed by the 6,552
commissioner under authority of sections 5743.01 to 5743.20 of 6,553
the Revised Code, and unless such stamps have been previously 6,554
affixed, each retail dealer shall within twenty-four hours after 6,555
the receipt of any cigarettes at the retail dealer's place of 6,557
business and prior to the delivery thereof to any person in this 6,558
state, or in the case of a tax levied pursuant to section 6,559
5743.024 or 5743.026 of the Revised Code prior to the delivery 6,561
thereof to any person in the county in which the tax is levied, 6,562
so affix such stamps and cancel same by writing or stamping 6,564
across the face thereof the number assigned to such retail dealer 6,565
by the commissioner for that purpose.
Whenever any cigarettes are found in the place of business 6,567
of any retail dealer without proper tax stamps affixed thereto 6,568
and canceled, it is presumed that such cigarettes are kept 6,569
therein in violation of sections 5743.01 to 5743.20 of the 6,570
Revised Code. 6,571
Each wholesale dealer and each retail dealer who purchases 6,573
cigarettes without proper tax stamps affixed thereto shall, on or 6,574
before the thirty-first day of the month following the close of 6,575
each semiannual period, which period shall end on the thirtieth 6,576
day of June and the thirty-first day of December of each year, 6,577
make and file a return of the preceding semiannual period, on 6,578
155
such form as is prescribed by the tax commissioner, showing his 6,579
THE DEALER'S entire purchases and sales of cigarettes and stamps 6,580
or impressions for such semiannual period and accurate 6,581
inventories as of the beginning and end of each semiannual period 6,582
of cigarettes, stamped or unstamped; cigarette tax stamps affixed 6,583
or unaffixed and unused meter impressions; and such other 6,584
information as the commissioner finds necessary to the proper 6,585
administration of sections 5743.01 to 5743.20 of the Revised 6,586
Code. The commissioner may extend the time for making and filing 6,587
returns and may remit all or any part of amounts of penalties 6,588
which may become due under sections 5743.01 to 5743.20 of the 6,589
Revised Code. The wholesale or retail dealer shall deliver the 6,590
return together with a remittance of the tax deficiency reported 6,591
thereon to the treasurer of state. The treasurer of state shall 6,592
stamp or otherwise mark on the return the date it was received 6,593
and shall also show thereon by stamp or otherwise a payment or 6,595
nonpayment of the deficiency shown by the return. Thereafter,
the treasurer of state shall immediately transmit all returns 6,596
filed under this section to the commissioner. Any wholesale or 6,597
retail dealer who fails to file a return under this section and 6,598
the rules of the commissioner shall MAY BE REQUIRED, for each day 6,600
the dealer so fails, TO forfeit and pay into the state treasury 6,602
the sum of one dollar as revenue arising from the tax imposed by 6,603
sections 5743.01 to 5743.20 of the Revised Code and such sum may 6,604
be collected by assessment in the manner provided in section 6,605
5743.081 of the Revised Code. If the commissioner finds it 6,606
necessary in order to insure the payment of the tax imposed by 6,608
sections 5743.01 to 5743.20 of the Revised Code, the commissioner 6,609
may require returns and payments to be made other than 6,611
semiannually. The returns shall be signed by the wholesale or 6,612
retail dealer or his AN authorized agent THEREOF. 6,613
Sec. 5743.081. (A) If any wholesale dealer or retail 6,622
dealer fails to pay the tax levied under sections 5743.02, 6,623
5743.023, 5743.024, or 5743.026 of the Revised Code as required 6,625
156
by sections 5743.01 to 5743.20 of the Revised Code, and by the
rules of the tax commissioner, or fails to collect the tax from 6,626
the purchaser or consumer, the commissioner may make an 6,627
assessment against the wholesale or retail dealer based upon any 6,628
information in the commissioner's possession. 6,629
The commissioner may make an assessment against any 6,631
wholesale or retail dealer who fails to file a return required by 6,632
section 5743.03 or 5743.025 of the Revised Code. 6,633
No assessment shall be made against any wholesale or retail 6,635
dealer for any taxes imposed under sections 5743.02, 5743.023, 6,636
5743.024, or 5743.026 of the Revised Code more than three years 6,638
after the last day of the calendar month which immediately 6,639
follows the semiannual period prescribed in section 5743.03 of 6,640
the Revised Code in which the sale was made, or more than three 6,641
years after the semiannual return for such period is filed, 6,642
whichever is later. This section does not bar an assessment 6,643
against any wholesale or retail dealer who fails to file a return 6,644
as required by section 5743.03 or 5743.025 of the Revised Code, 6,645
or who files a fraudulent return. 6,646
A penalty of UP TO thirty per cent shall MAY be added to 6,648
the amount of every assessment made under this section. The 6,650
commissioner may adopt rules providing for the IMPOSITION AND 6,651
remission of penalties added to assessments made under this 6,653
section.
The commissioner shall give the party assessed written 6,655
notice of the assessment by personal service or certified mail AS 6,656
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. The notice 6,658
shall specify separately any portion of the assessment that 6,659
represents a county tax.
(B) Unless the party to whom the notice of assessment is 6,661
directed files with the commissioner within thirty SIXTY days 6,662
after service of the notice of assessment, either personally or 6,664
by certified mail, a petition for reassessment in writing, signed 6,665
by the party assessed, or by the party's authorized agent having 6,667
157
knowledge of the facts, the assessment shall become final and the 6,668
amount of the assessment shall be due and payable from the party 6,669
assessed to the treasurer of state. The petition shall indicate 6,670
the objections of the party assessed, but additional objections 6,671
may be raised in writing if received prior to the date shown on 6,672
the final determination by the commissioner. 6,673
Unless the petitioner waives a hearing, the commissioner 6,675
shall assign a time and place for the hearing on the petition and 6,676
notify the petitioner of the time and place of the hearing by 6,677
personal service or certified mail, but the commissioner may 6,678
continue the hearing from time to time if necessary. 6,679
The commissioner may make such correction to an assessment 6,681
as the commissioner finds proper. The commissioner shall serve a 6,683
copy of the final determination on the petitioner by personal 6,684
service or certified mail, and the commissioner's decision in the 6,685
matter shall be final, subject to appeal as provided in section 6,687
5717.02 of the Revised Code. Only objections decided on the 6,688
merits by the board of tax appeals or a court shall be given 6,689
collateral estoppel or res judicata effect in considering an 6,690
application for refund of amounts paid pursuant to the 6,691
assessment.
(C) After an assessment becomes final, if any portion of 6,693
the assessment remains unpaid, including accrued interest, a 6,694
certified copy of the commissioner's entry making the assessment 6,696
final may be filed in the office of the clerk of the court of 6,697
common pleas in the county in which the wholesale or retail 6,698
dealer's place of business is located or the county in which the 6,699
party assessed resides. If the party assessed maintains no place 6,700
of business in this state and is not a resident of this state, 6,701
the certified copy of the entry may be filed in the office of the 6,702
clerk of the court of common pleas of Franklin county. 6,703
The clerk, immediately upon the filing of the 6,705
commissioner's entry, shall enter a judgment for the state 6,706
against the party assessed in the amount shown on the entry. The 6,707
158
judgment may be filed by the clerk in a loose-leaf book entitled 6,708
"special judgments for state cigarette sales tax," and shall have 6,710
the same effect as other judgments. Execution shall issue upon 6,711
the judgment upon the request of the tax commissioner, and all 6,712
laws applicable to sales on execution shall apply to sales made 6,713
under the judgment except as otherwise provided in sections 6,714
5743.01 to 5743.20 of the Revised Code. 6,715
The portion of the assessment not paid within thirty SIXTY 6,717
days after the assessment was issued shall bear interest at the 6,719
rate per annum prescribed by section 5703.47 of the Revised Code 6,720
from the day the tax commissioner issues the assessment until it 6,721
is paid. Interest shall be paid in the same manner as the tax 6,722
and may be collected by the issuance of an assessment under this 6,723
section.
(D) All money collected by the commissioner under this 6,725
section shall be paid to the treasurer of state, and when paid 6,726
shall be considered as revenue arising from the taxes imposed by 6,727
sections 5743.01 to 5743.20 of the Revised Code. 6,728
Sec. 5743.082. (A) If the tax commissioner finds that a 6,737
wholesale dealer or retail dealer, liable for tax under sections 6,738
5743.01 to 5743.20 of the Revised Code, is about to depart from 6,739
the state, remove the wholesale or retail dealer's property from 6,741
the state, conceal the wholesale or retail dealer's person or 6,742
property, or do any other act tending to prejudice, obstruct, or 6,743
render wholly or partly ineffectual proceedings to collect the
tax, unless the proceedings are commenced without delay, or if 6,744
the commissioner believes that the collection of the amount due 6,745
from any wholesale dealer or retail dealer will be jeopardized by 6,746
delay, the commissioner may issue a jeopardy assessment against 6,747
the wholesale or retail dealer for the amount of the tax, plus a 6,748
penalty of UP TO thirty per cent. Upon issuance of a jeopardy 6,749
assessment under this division, the total amount assessed shall 6,750
immediately be due and payable unless security is provided 6,751
pursuant to division (C) of this section. Any assessment issued 6,752
159
under this section shall bear interest as prescribed by section 6,753
5743.081 of the Revised Code. 6,754
(B) The commissioner immediately shall file an entry with 6,756
the clerk of the court of common pleas in the same manner and 6,757
with the same effect as provided in section 5743.081 of the 6,758
Revised Code. Notice of the jeopardy assessment shall be served 6,759
on the dealer assessed or the dealer's legal representative, AS 6,760
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE, within five days 6,762
of the filing of the entry. The dealer assessed may petition for 6,763
reassessment within thirty SIXTY days of receipt of the notice of 6,764
jeopardy assessment in the same manner as provided in section 6,765
5743.081 of the Revised Code. Full or partial payment of the 6,766
assessment shall not prejudice the commissioner's consideration 6,767
of the merits of the assessment as contested by the petition for 6,768
reassessment. Upon notification of the existence of the judgment 6,769
filed pursuant to this division, any public official having 6,770
control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property 6,771
to the commissioner as full or partial satisfaction of the 6,772
jeopardy assessment. However, funds or property needed as 6,773
evidence in criminal proceedings or that is expected to be 6,774
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the 6,775
Revised Code, need not be relinquished by the public official. 6,776
Upon disposition of criminal and forfeiture proceedings, funds 6,777
and property not needed as evidence and not forfeited shall be 6,778
delivered to the commissioner. 6,779
(C) If the dealer subject to a jeopardy assessment files a 6,781
petition for reassessment and posts security satisfactory to the 6,782
commissioner in an amount sufficient to satisfy the unpaid 6,783
balance of the assessment, execution on the judgment shall be 6,784
stayed pending disposition of the petition for reassessment and 6,785
all appeals resulting from the petition. If the security is 6,786
sufficient to satisfy the full amount of the assessment, the 6,787
commissioner shall return any funds or property of the dealer 6,788
160
that previously were seized. Upon satisfaction of the assessment 6,789
the commissioner shall order the security released and the 6,790
judgment vacated. 6,791
(D) THE COMMISSIONER MAY ADOPT RULES PROVIDING FOR THE 6,793
IMPOSITION AND REMISSION OF PENALTIES IMPOSED UNDER THIS SECTION. 6,794
Sec. 5743.52. (A) Each distributor of tobacco products 6,803
subject to the tax levied by section 5743.51 of the Revised Code, 6,804
on or before the last day of each month, shall file with the 6,805
treasurer of state a return for the preceding month showing any 6,806
information the tax commissioner finds necessary for the proper 6,807
administration of sections 5743.51 to 5743.66 of the Revised 6,808
Code, together with remittance of the tax due. The treasurer of 6,809
state shall stamp or otherwise mark on the return the date it was 6,810
received and shall also show thereon by stamp or otherwise the 6,811
amount of payment received with the return. Thereafter, the 6,812
treasurer of state shall immediately transmit all returns filed 6,813
under this section to the tax commissioner. The return and 6,814
payment of the tax required by this section shall be filed in 6,815
such a manner that it is received by the treasurer of state on or 6,816
before the last day of the month following the reporting period. 6,817
If the return is filed and the amount of tax shown on the return 6,818
to be due is paid on or before the date the return is required to 6,819
be filed, the distributor is entitled to a discount equal to two 6,820
and five-tenths per cent of the amount shown on the return to be 6,821
due. 6,822
(B) Any person who fails to timely file the return and 6,824
make payment of taxes as required under this section, section 6,825
5743.62, or section 5743.63 of the Revised Code shall MAY BE 6,826
REQUIRED TO pay an additional charge equal to NOT EXCEEDING the 6,828
greater of fifty dollars or ten per cent of the tax due. Any 6,830
additional charge imposed under this section may be collected by 6,831
assessment as provided in section 5743.56 of the Revised Code. 6,832
(C) If any tax due is not paid timely in accordance with 6,834
sections 5743.52, 5743.62, or 5743.63 of the Revised Code, the 6,835
161
person liable for the tax shall pay interest, calculated at the 6,836
rate per annum as prescribed by section 5703.47 of the Revised 6,837
Code, from the date the tax payment was due to the date of 6,838
payment or to the date an assessment is issued under section 6,839
5743.56 of the Revised Code, whichever occurs first. The 6,840
commissioner may collect such interest by assessment pursuant to 6,841
section 5743.56 of the Revised Code.
(D) The commissioner may authorize the filing of returns 6,843
and the payment of the tax required by this section, section 6,844
5743.62, or section 5743.63 of the Revised Code for periods 6,845
longer than a calendar month.
(E) The commissioner may order any taxpayer to file with 6,847
the commissioner security to the satisfaction of the commissioner 6,848
conditioned upon filing the return and paying the taxes required 6,849
under this section, section 5743.62, or section 5743.63 of the 6,850
Revised Code if the commissioner believes that the collection of 6,851
the tax may be in jeopardy. 6,852
Sec. 5743.56. (A) Any person required to pay the tax 6,861
imposed by section 5743.51, 5743.62, or 5743.63 of the Revised 6,862
Code is personally liable for the tax. The tax commissioner may 6,863
make an assessment, based upon any information in the 6,864
commissioner's possession, against any person who fails to file a 6,865
return or pay any tax, interest, or additional charge as required 6,866
by this chapter. The commissioner shall give the person assessed 6,867
written notice of such assessment by personal service or 6,868
certified mail AS PROVIDED IN SECTION 5703.37 OF THE REVISED 6,870
CODE.
(B) When the information in the possession of the tax 6,872
commissioner indicates that a person liable for the tax imposed 6,873
by section 5743.51, 5743.62, or 5743.63 of the Revised Code has 6,874
not paid the full amount of tax due, the commissioner may audit a 6,875
representative sample of the person's business and may issue an 6,876
assessment based on such audit. 6,877
(C) A penalty of UP TO fifteen per cent shall MAY be added 6,880
162
to all amounts assessed under this section. The commissioner may 6,881
adopt rules providing for the IMPOSITION AND remission of such 6,882
penalties.
(D) Unless the person assessed files with the tax 6,884
commissioner within thirty SIXTY days after service of the notice 6,886
of assessment, either personally or by certified mail, a petition 6,887
for reassessment in writing by the person assessed or the 6,888
authorized agent of the person assessed having knowledge of the 6,889
facts, the assessment becomes final and the amount of the 6,890
assessment is due and payable from the person assessed to the 6,891
treasurer of state. A petition shall indicate the objections to 6,892
the assessment of the person assessed, but additional objections 6,893
may be raised in writing prior to the date shown on the final 6,894
determination of the tax commissioner. The commissioner shall 6,895
grant the petitioner a hearing on the petition, unless waived by 6,896
the petitioner.
The commissioner may make such correction to the assessment 6,898
as the commissioner finds proper and shall issue a final 6,899
determination thereon. The commissioner shall serve a copy of 6,900
the final determination on the petitioner either by personal 6,901
service or by certified mail, and the commissioner's decision in 6,902
the matter is final, subject to appeal under section 5717.02 of 6,903
the Revised Code.
(E) After an assessment becomes final, if any portion of 6,905
the assessment, including accrued interest, remains unpaid, a 6,906
certified copy of the commissioner's entry making the assessment 6,907
final may be filed in the office of the clerk of the court of 6,908
common pleas in the county in which the person assessed resides 6,909
or in which the person assessed conducts business. If the person 6,910
assessed maintains no place of business in this state and is not 6,911
a resident of this state, the certified copy of the entry may be 6,912
filed in the office of the clerk of the court of common pleas of 6,913
Franklin county. 6,914
The clerk, immediately upon the filing of the entry, shall 6,916
163
enter a judgment for the state against the person assessed in the 6,917
amount shown to be due. The judgment may be filed by the clerk 6,918
in a loose-leaf book entitled "special judgments for state 6,919
tobacco products tax," and shall have the same effect as other 6,921
judgments. Execution shall issue upon the judgment upon the 6,922
request of the tax commissioner, and all laws applicable to sales 6,923
on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 6,926
days after the day the assessment is issued shall bear interest 6,927
at the rate per annum prescribed by section 5703.47 of the 6,928
Revised Code from the day the tax commissioner issues the 6,929
assessment until the assessment is paid. Interest shall be paid 6,930
in the same manner as the tax and may be collected by issuing an 6,931
assessment under this section. 6,932
(F) If the commissioner believes that collection of the 6,934
tax will be jeopardized unless proceedings to collect or secure 6,935
collection of the tax are instituted without delay, the 6,936
commissioner may issue a jeopardy assessment against the person 6,937
liable for the tax. Upon issuance of the jeopardy assessment, 6,938
the commissioner immediately shall file an entry with the clerk 6,939
of the court of common pleas in the manner prescribed by division 6,940
(E) of this section. Notice of the jeopardy assessment shall be 6,941
served on the person assessed or the legal representative of the 6,943
person assessed, AS PROVIDED IN SECTION 5703.37 OF THE REVISED 6,944
CODE, within five days of the filing of the entry with the clerk. 6,945
The total amount assessed is immediately due and payable, unless 6,946
the person assessed files a petition for reassessment in 6,947
accordance with division (D) of this section and provides 6,948
security in a form satisfactory to the commissioner and in an 6,949
amount sufficient to satisfy the unpaid balance of the 6,950
assessment. Full or partial payment of the assessment does not 6,951
prejudice the commissioner's consideration of the petition for 6,952
reassessment.
(G) All money collected by the commissioner under this 6,954
164
section shall be paid to the treasurer of state as revenue 6,955
arising from the tax imposed by sections 5743.51, 5743.62, and 6,956
5743.63 of the Revised Code. 6,957
Sec. 5747.07. (A) As used in this section: 6,966
(1) "Partial weekly withholding period" means a period 6,968
during which an employer directly, indirectly, or constructively 6,969
pays compensation to, or credits compensation to the benefit of, 6,970
an employee, and that consists of a consecutive Saturday, Sunday, 6,971
Monday, and Tuesday or a consecutive Wednesday, Thursday, and 6,972
Friday. There are two partial weekly withholding periods each 6,973
week, except that a partial weekly withholding period cannot 6,974
extend from one calendar year into the next calendar year; if the 6,975
first day of January falls on a day other than Saturday or 6,976
Wednesday, the partial weekly withholding period ends on the 6,977
thirty-first day of December and there are three partial weekly 6,978
withholding periods during that week. 6,979
(2) "Undeposited taxes" means the taxes an employer is 6,981
required to deduct and withhold from an employee's compensation 6,982
pursuant to section 5747.06 of the Revised Code that have not 6,983
been remitted to the tax commissioner pursuant to this section or 6,984
to the treasurer of state pursuant to section 5747.072 of the 6,985
Revised Code. 6,986
(3) A "week" begins on Saturday and concludes at the end 6,988
of the following Friday. 6,989
(B) Except as provided in divisions (C) and (D) of this 6,991
section and in division (A) of section 5747.072 of the Revised 6,992
Code, every employer required to deduct and withhold any amount 6,993
under section 5747.06 of the Revised Code shall file a return and 6,994
shall pay the amount required by law as follows: 6,995
(1) An employer who accumulates or is required to 6,997
accumulate undeposited taxes of one hundred thousand dollars or 6,998
more during a partial weekly withholding period shall make the 6,999
payment of the undeposited taxes by the close of the first 7,000
banking day after the day on which the accumulation reaches one 7,001
165
hundred thousand dollars. If required under division (I) of this 7,002
section, the payment shall be made by electronic funds transfer 7,003
under section 5747.072 of the Revised Code. 7,004
(2)(a) Except as required by division (B)(1) of this 7,006
section, an employer described in division (B)(2)(b) of this 7,007
section shall make the payment of undeposited taxes within three 7,008
banking days after the close of a partial weekly withholding 7,009
period during which the employer was required to deduct and 7,010
withhold any amount under this chapter. If required under 7,011
division (I) of this section, the payment shall be made by 7,012
electronic funds transfer under section 5747.072 of the Revised 7,013
Code.
(b) For amounts required to be deducted and withheld 7,015
during 1994, an employer described in division (B)(2)(b) of this 7,016
section is one whose actual or required payments under this 7,017
section exceeded one hundred eighty thousand dollars during the 7,018
twelve-month period ending June 30, 1993. For amounts required 7,019
to be deducted and withheld during 1995 and each year thereafter, 7,020
an employer described in division (B)(2)(b) of this section is 7,021
one whose actual or required payments under this section were at 7,022
least eighty-four thousand dollars during the twelve-month period 7,023
ending on the thirtieth day of June of the preceding calendar 7,024
year. 7,025
(3) Except as required by divisions (B)(1) and (2) of this 7,027
section, if an employer's actual or required payments were more 7,028
than two thousand dollars during the twelve-month period ending 7,029
on the thirtieth day of June of the preceding calendar year, the 7,030
employer shall make the payment of undeposited taxes for each 7,031
month during which they were required to be withheld no later 7,032
than fifteen days following the last day of that month. The 7,033
employer shall file the return prescribed by the tax commissioner 7,034
with the payment. 7,035
(4) Except as required by divisions (B)(1), (2), and (3) 7,037
of this section, an employer shall make the payment of 7,038
166
undeposited taxes for each calendar quarter during which they 7,039
were required to be withheld no later than the last day of the 7,040
month following the last day of March, June, September, and 7,041
December each year. The employer shall file the return 7,042
prescribed by the tax commissioner with the payment. 7,043
(C) The return and payment schedules prescribed by 7,045
divisions (B)(1) and (2) of this section do not apply to the 7,046
return and payment of undeposited school district income taxes 7,047
arising from taxes levied pursuant to Chapter 5748. of the 7,048
Revised Code. Undeposited school district income taxes shall be 7,049
returned and paid pursuant to divisions (B)(3) and (4) of this 7,050
section, as applicable. 7,051
(D)(1) The requirements of division (B) of this section 7,053
are met if the amount paid is not less than ninety-five per cent 7,054
of the actual tax withheld or required to be withheld for the 7,055
prior quarterly, monthly, or partial weekly withholding period, 7,056
and the underpayment is not due to willful neglect. Any 7,057
underpayment of withheld tax shall be paid within thirty days of 7,058
the date on which the withheld tax was due without regard to 7,059
division (D)(1) of this section. An employer described in 7,060
division (B)(1) or (2) of this section shall make the payment by 7,061
electronic funds transfer under section 5747.072 of the Revised 7,062
Code.
(2) If the tax commissioner believes that quarterly or 7,064
monthly payments would result in a delay that might jeopardize 7,065
the remittance of withholding payments, the commissioner may 7,066
order that the payments be made weekly, or more frequently if 7,067
necessary, and the payments shall be made no later than three 7,068
banking days following the close of the period for which the 7,069
jeopardy order is made. An order requiring weekly or more 7,070
frequent payments shall be delivered to the employer personally 7,071
or by certified mail and remains in effect until the commissioner 7,072
notifies the employer to the contrary. 7,073
(3) If compelling circumstances exist concerning the 7,075
167
remittance of undeposited taxes, the commissioner may order the 7,076
employer to make payments under any of the payment schedules 7,077
under division (B) of this section. The order shall be delivered 7,078
to the employer personally or by certified mail and shall remain 7,079
in effect until the commissioner notifies the employer to the 7,080
contrary. For purposes of division (D)(3) of this section, 7,081
"compelling circumstances" exist if either or both of the 7,082
following are true: 7,083
(a) Based upon annualization of payments made or required 7,085
to be made during the preceding calendar year and during the 7,086
current calendar year, the employer would be required for the 7,087
next calendar year to make payments under division (B)(2) of this 7,088
section. 7,089
(b) Based upon annualization of payments made or required 7,091
to be made during the current calendar year, the employer would 7,092
be required for the next calendar year to make payments under 7,093
division (B)(2) of this section. 7,094
(E)(1) An employer described in division (B)(1) or (2) of 7,096
this section shall file, not later than the last day of the month 7,097
following the end of each calendar quarter, a return covering, 7,098
but not limited to, both the actual amount deducted and withheld 7,099
and the amount required to be deducted and withheld for the tax 7,100
imposed under section 5747.02 of the Revised Code during each 7,101
partial weekly withholding period or portion of a partial weekly 7,103
withholding period during that quarter. The employer shall file 7,104
the quarterly return even if the aggregate amount required to be 7,105
deducted and withheld for the quarter is zero dollars. At the 7,106
time of filing the return, the employer shall pay any amounts of 7,107
undeposited taxes for the quarter, whether actually deducted and 7,108
withheld or required to be deducted and withheld, that have not 7,109
been previously paid. If required under division (I) of this 7,110
section, the payment shall be made by electronic funds transfer. 7,111
The tax commissioner shall prescribe the form and other 7,112
requirements of the quarterly return. 7,113
168
(2) In addition to other returns required to be filed and 7,115
payments required to be made under this section, every employer 7,116
required to deduct and withhold taxes shall file, not later than 7,117
the thirty-first day of January of each year, an annual return 7,118
covering, but not limited to, both the aggregate amount deducted 7,119
and withheld and the aggregate amount required to be deducted and 7,120
withheld during the entire preceding year for the tax imposed 7,121
under section 5747.02 of the Revised Code and for each tax 7,122
imposed under Chapter 5748. of the Revised Code. At the time of 7,123
filing that return, the employer shall pay over any amounts of 7,124
undeposited taxes for the preceding year, whether actually 7,125
deducted and withheld or required to be deducted and withheld, 7,126
that have not been previously paid. The employer shall make the 7,127
annual report, to each employee and to the tax commissioner, of 7,128
the compensation paid and each tax withheld, as the commissioner 7,129
by rule may prescribe. 7,130
Each employer required to deduct and withhold any tax is 7,132
liable for the payment of that amount required to be deducted and 7,133
withheld, whether or not the tax has in fact been withheld, 7,134
unless the failure to withhold was based upon the employer's good 7,135
faith in reliance upon the statement of the employee as to 7,136
liability, and the amount shall be deemed to be a special fund in 7,137
trust for the general revenue fund. 7,138
(F) Each employer shall file with the employer's annual 7,140
return the following items of information on employees for whom 7,142
withholding is required under section 5747.06 of the Revised 7,143
Code:
(1) The full name of each employee, the employee's 7,145
address, the employee's school district of residence, and in the 7,146
case of a nonresident employee, the employee's principal county 7,147
of employment;
(2) The social security number of each employee; 7,149
(3) The total amount of compensation paid before any 7,151
deductions to each employee for the period for which the annual 7,152
169
return is made; 7,153
(4) The amount of the tax imposed by section 5747.02 of 7,155
the Revised Code and the amount of each tax imposed under Chapter 7,156
5748. of the Revised Code withheld from the compensation of the 7,157
employee for the period for which the annual return is made. The 7,158
commissioner may extend upon good cause the period for filing any 7,159
notice or return required to be filed under this section and may 7,160
adopt rules relating to extensions of time. If the extension 7,161
results in an extension of time for the payment of the amounts 7,162
withheld with respect to which the return is filed, the employer 7,163
shall pay, at the time the amount withheld is paid, an amount of 7,164
interest computed at the rate per annum prescribed by section 7,165
5703.47 of the Revised Code on that amount withheld, from the day 7,167
that amount was originally required to be paid to the day of 7,169
actual payment or to the day an assessment is issued under
section 5747.13 of the Revised Code, whichever occurs first. 7,170
(5) In addition to all other interest charges and 7,172
penalties imposed, all amounts of taxes withheld or required to 7,173
be withheld and remaining unpaid after the day the amounts are 7,175
required to be paid shall bear interest from the date prescribed
for payment at the rate per annum prescribed by section 5703.47 7,176
of the Revised Code on the amount unpaid, in addition to the 7,177
amount withheld, until paid or until the day an assessment is 7,178
issued under section 5747.13 of the Revised Code, whichever 7,179
occurs first.
(G) An employee of a corporation, limited liability 7,181
company, or business trust having control or supervision of or 7,182
charged with the responsibility of filing the report and making 7,183
payment, or an officer, member, manager, or trustee of a 7,184
corporation, limited liability company, or business trust who is 7,185
responsible for the execution of the corporation's, limited 7,186
liability company's, or business trust's fiscal responsibilities, 7,187
shall be personally liable for failure to file the report or pay 7,188
the tax due as required by this section. The dissolution, 7,189
170
termination, or bankruptcy of a corporation, limited liability 7,190
company, or business trust does not discharge a responsible 7,191
officer's, member's, manager's, employee's, or trustee's 7,192
liability for a failure of the corporation, limited liability 7,193
company, or business trust to file returns or pay tax due. 7,194
(H) If an employer required to deduct and withhold income 7,196
tax from compensation and to pay that tax to the state under 7,197
sections 5747.06 and 5747.07 of the Revised Code sells the 7,198
employer's business or stock of merchandise or quits the 7,199
employer's business, the taxes required to be deducted and 7,201
withheld and paid to the state pursuant to those sections prior 7,202
to that time, together with any interest and penalties imposed on 7,203
those taxes, become due and payable immediately, and that person 7,204
shall make a final return within fifteen days after the date of 7,205
selling or quitting business. The employer's successor shall 7,206
withhold a sufficient amount of the purchase money to cover the 7,207
amount of the taxes, interest, and penalties due and unpaid, 7,208
until the former owner produces a receipt from the tax 7,209
commissioner showing that the taxes, interest, and penalties have 7,210
been paid or a certificate indicating that no such taxes are due. 7,211
If the purchaser of the business or stock of merchandise fails to 7,212
withhold purchase money, the purchaser shall be personally liable 7,213
for the payment of the taxes, interest, and penalties accrued and 7,215
unpaid during the operation of the business by the former owner. 7,216
If the amount of taxes, interest, and penalties outstanding at 7,217
the time of the purchase exceeds the total purchase money, the 7,218
tax commissioner in the commissioner's discretion may adjust the 7,219
liability of the seller or the responsibility of the purchaser to 7,221
pay that liability to maximize the collection of withholding tax 7,222
revenue.
(I)(1) An employer described in division (I)(2) of this 7,224
section shall make all payments required by this section for the 7,225
year by electronic funds transfer under section 5747.072 of the 7,226
Revised Code. 7,227
171
(2)(a) For 1994, an employer described in division (I)(2) 7,229
of this section is one whose actual or required payments under 7,230
this section exceeded five hundred thousand dollars during the 7,231
twelve-month period ending June 30, 1993. 7,232
(b) For 1995, an employer described in division (I)(2) of 7,234
this section is one whose actual or required payments under this 7,235
section exceeded five hundred thousand dollars during the 7,236
twelve-month period ending June 30, 1994. 7,237
(c) For 1996, an employer described in division (I)(2) of 7,239
this section is one whose actual or required payments under this 7,240
section exceeded three hundred thousand dollars during the 7,241
twelve-month period ending June 30, 1995. 7,242
(d) For 1997 and thereafter THROUGH 2000, an employer 7,244
described in division (I)(2) of this section is one whose actual 7,246
or required payments under this section exceeded one hundred 7,247
eighty thousand dollars during the twelve-month period ending on 7,248
the thirtieth day of June of the preceding calendar year. 7,249
(e) FOR 2001 AND THEREAFTER, AN EMPLOYER DESCRIBED IN 7,251
DIVISION (I)(2) OF THIS SECTION IS ONE WHOSE ACTUAL OR REQUIRED 7,252
PAYMENTS UNDER THIS SECTION EXCEEDED EIGHTY-FOUR THOUSAND DOLLARS 7,253
DURING THE TWELVE-MONTH PERIOD ENDING ON THE THIRTIETH DAY OF 7,254
JUNE OF THE PRECEDING CALENDAR YEAR. 7,255
Sec. 5747.09. (A) As used in this section: 7,264
(1) "Estimated taxes" means the amount that the taxpayer 7,266
estimates to be his THE TAXPAYER'S combined tax liability under 7,267
this chapter and Chaper CHAPTER 5748. of the Revised Code for the 7,269
current taxable year. 7,270
(2) "Tax liability" means the total taxes due for the 7,272
taxable year, after allowing any credit to which the taxpayer is 7,273
entitled, but prior to applying any estimated tax payment, 7,274
withholding payment, or refund from another tax year. 7,275
(3) "Taxes paid" include payments of estimated taxes made 7,277
under division (C) of this section, taxes withheld from the 7,278
taxpayer's compensation, and tax refunds applied by the taxpayer 7,279
172
in payment of estimated taxes. 7,280
(B) Every taxpayer shall make declaration of estimated 7,282
taxes for the current taxable year, in the form that the tax 7,283
commissioner shall prescribe, if the amount payable as estimated 7,284
taxes, less the amount to be withheld from the taxpayer's 7,285
compensation, is more than three FIVE hundred dollars. For 7,286
purposes of this section, taxes withheld from compensation shall 7,288
be considered as paid in equal amounts on each payment date 7,289
unless the taxpayer establishes the dates on which all amounts 7,290
were actually withheld, in which case the amounts withheld shall 7,291
be considered as paid on the dates on which the amounts were 7,292
actually withheld. Taxpayers filing joint returns pursuant to 7,293
section 5747.08 of the Revised Code shall file joint declarations 7,294
of estimated taxes. A taxpayer may amend a declaration under 7,295
rules prescribed by the commissioner. A taxpayer having a 7,296
taxable year of less than twelve months shall make a declaration 7,297
under rules prescribed by the commissioner. The declaration of 7,298
estimated taxes for an individual under a disability shall be 7,299
made and filed by the person who is required to file the income 7,300
tax return. 7,301
The declaration of estimated taxes shall be filed on or 7,303
before the fifteenth day of April of each year or on or before 7,304
the fifteenth day of the fourth month after the taxpayer becomes 7,305
subject to tax for the first time. 7,306
Taxpayers reporting on a fiscal year basis shall file a 7,308
declaration on or before the fifteenth day of the fourth month 7,309
after the beginning of each fiscal year or period. 7,310
The declaration shall be filed upon a form prescribed by 7,312
the commissioner and furnished by or obtainable from the 7,313
commissioner. 7,314
The original declaration or any subsequent amendment may be 7,316
increased or decreased on or before any subsequent quarterly 7,317
payment day as provided in this section. 7,318
(C) The required portion of the tax liability for the 7,320
173
taxable year that shall be paid through estimated taxes made 7,321
payable to the treasurer of state, including the application of 7,322
tax refunds to estimated taxes, and withholding on or before the 7,323
applicable payment date shall be as follows: 7,324
(1) On or before the fifteenth day of the fourth month 7,326
after the beginning of the taxable year, twenty-two and one-half 7,327
per cent of the tax liability for the taxable year; 7,328
(2) On or before the fifteenth day of the sixth month 7,330
after the beginning of the taxable year, forty-five per cent of 7,331
the tax liability for the taxable year; 7,332
(3) On or before the fifteenth day of the ninth month 7,334
after the beginning of the taxable year, sixty-seven and one-half 7,335
per cent of the tax liability for the taxable year; 7,336
(4) On or before the fifteenth day of the first month of 7,338
the following taxable year, ninety per cent of the tax liability 7,339
for the taxable year. 7,340
When an amended return has been filed, the unpaid balance 7,342
shown due on the amended return shall be paid in equal 7,343
installments on or before the remaining payment dates. 7,344
On or before the fifteenth day of the fourth month of the 7,346
year following that for which the declaration or amended 7,347
declaration was filed, an annual return shall be filed and any 7,348
balance which may be due shall be paid with the return in 7,349
accordance with section 5747.08 of the Revised Code. 7,350
(D) In the case of any underpayment of estimated taxes, an 7,352
interest penalty shall be added to the taxes for the tax year at 7,353
the rate per annum prescribed by section 5703.47 of the Revised 7,354
Code upon the amount of underpayment for the period of 7,355
underpayment, unless the underpayment is due to reasonable cause 7,356
as described in division (E) of this section. The amount of the 7,357
underpayment shall be determined as follows: 7,358
(1) For the first payment of estimated taxes each year, 7,360
twenty-two and one-half per cent of the tax liability, less the 7,361
amount of taxes paid by the date prescribed for that payment; 7,362
174
(2) For the second payment of estimated taxes each year, 7,364
forty-five per cent of the tax liability, less the amount of 7,365
taxes paid by the date prescribed for that payment; 7,366
(3) For the third payment of estimated taxes each year, 7,368
sixty-seven and one-half per cent of the tax liability, less the 7,369
amount of taxes paid by the date prescribed for that payment; 7,370
(4) For the fourth payment of estimated taxes each year, 7,372
ninety per cent of the tax liability, less the amount of taxes 7,373
paid by the date prescribed for that payment. 7,374
The period of the underpayment shall run from the day the 7,376
estimated payment was required to be made to the date on which 7,377
the payment is made. For purposes of this section, a payment of 7,378
estimated taxes on or before any payment date shall be considered 7,379
a payment of any previous underpayment only to the extent the 7,380
payment of estimated taxes exceeds the amount of the payment 7,381
presently required to be paid to avoid any penalty. 7,382
The interest penalty imposed under division (D) of this 7,384
section shall be in lieu of any other interest charge or penalty 7,385
imposed for failure to file an estimated return and make 7,386
estimated payments as required by this section. 7,387
(E) An underpayment of estimated taxes determined under 7,389
division (D) of this section shall be due to reasonable cause and 7,390
the interest penalty imposed by this section shall not be added 7,391
to the taxes for the tax year if either of the following apply: 7,392
(1) The amount of tax that was paid equals at least ninety 7,394
per cent of the tax liability for the current taxable year, 7,395
determined by annualizing the income received during the year up 7,396
to the end of the month immediately preceding the month in which 7,397
the payment is due; 7,398
(2) The amount of tax that was paid equals at least one 7,400
hundred per cent of the tax liability shown on the return of the 7,401
taxpayer for the preceding taxable year, provided that the 7,402
immediately preceding taxable year reflected a period of twelve 7,403
months and the taxpayer filed a return under section 5747.08 of 7,404
175
the Revised Code for that year. 7,405
The tax commissioner may waive the requirement for filing a 7,407
declaration of estimated taxes for any class of taxpayers if he 7,408
finds AFTER FINDING THAT the waiver is reasonable and proper in 7,409
view of administrative costs and other factors. 7,411
Sec. 5747.13. (A) If any employer collects the tax 7,420
imposed by section 5747.02 or under Chapter 5748. of the Revised 7,421
Code and fails to remit the tax as required by law, or fails to 7,422
collect the tax, the employer is personally liable for any amount 7,424
collected which the employer fails to remit, or any amount which 7,425
the employer fails to collect. If any taxpayer fails to file a 7,426
return or fails to pay the tax imposed by section 5747.02 or 7,427
under Chapter 5748. of the Revised Code, the taxpayer is 7,428
personally liable for the amount of the tax.
If any employer, taxpayer, or qualifying entity required to 7,431
file a return under this chapter fails to file the return within 7,432
the time prescribed, files an incorrect return, fails to remit 7,433
the full amount of the taxes due for the period covered by the 7,434
return, or fails to remit any additional tax due as a result of a 7,435
reduction in the amount of the credit allowed under division (B) 7,436
of section 5747.05 of the Revised Code together with interest on 7,437
the additional tax within the time prescribed by that division, 7,438
the tax commissioner may make an assessment against any person 7,439
liable for any deficiency for the period for which the return is 7,440
or taxes are due, based upon any information in the 7,441
commissioner's possession.
An assessment issued against either the employer or the 7,443
taxpayer pursuant to this section shall not be considered an 7,444
election of remedies or a bar to an assessment against the other 7,445
for failure to report or pay the same tax. No assessment shall 7,446
be issued against any person if the tax actually has been paid by 7,447
another. 7,448
No assessment shall be made or issued against an employer, 7,451
taxpayer, or qualifying entity more than four years after the 7,452
176
final date the return subject to assessment was required to be 7,453
filed or the date the return was filed, whichever is later. 7,454
However, the commissioner may assess any balance due as the 7,455
result of a reduction in the credit allowed under division (B) of 7,456
section 5747.05 of the Revised Code, including applicable penalty 7,457
and interest, within four years of the date on which the taxpayer 7,458
reports a change in either the portion of the taxpayer's adjusted 7,459
gross income subjected to an income tax or tax measured by income 7,460
in another state or the District of Columbia or the amount of 7,461
liability for an income tax or tax measured by income to another 7,462
state or the District of Columbia, as required by division (B)(3) 7,463
of section 5747.05 of the Revised Code. Such time limits may be 7,464
extended if both the employer, taxpayer, or qualifying entity and 7,466
the commissioner consent in writing to the extension. Any such 7,467
extension shall extend the four-year time limit in division (B) 7,468
of section 5747.11 of the Revised Code for the same period of 7,469
time. There shall be no bar or limit to an assessment against an 7,470
employer for taxes withheld from employees and not remitted to 7,471
the state, against an employer, taxpayer, or qualifying entity 7,473
that fails to file a return subject to assessment as required by 7,474
this chapter, or against an employer, taxpayer, or qualifying 7,476
entity that files a fraudulent return.
The commissioner shall give the party assessed written 7,478
notice of the assessment by personal service or certified mail AS 7,479
PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 7,480
(B) Unless the party to whom the notice of assessment is 7,482
directed files with the commissioner within thirty SIXTY days 7,483
after service of the notice of assessment, either personally or 7,485
by certified mail, a petition for reassessment in writing, signed 7,486
by the party assessed, or by the party's authorized agent having 7,487
knowledge of the facts and makes payment of the portion of the 7,488
assessment required by division (E) of this section, the 7,489
assessment shall become final, and the amount of the assessment 7,490
shall be due and payable from the party assessed to the 7,491
177
commissioner with remittance made payable to the treasurer of 7,492
state. The petition shall indicate the objections of the party 7,493
assessed, but additional objections may be raised in writing if 7,494
received prior to the date shown on the final determination by 7,495
the commissioner.
Unless the petitioner waives a hearing, the commissioner 7,497
shall assign a time and place for the hearing on the petition and 7,498
notify the petitioner of the time and place of the hearing by 7,499
personal service or certified mail, but the commissioner may 7,500
continue the hearing from time to time if necessary. 7,501
The commissioner may make such correction to an assessment 7,503
as the commissioner finds proper. The commissioner shall serve a 7,505
copy of a final determination on the petitioner by personal 7,506
service or certified mail, and the commissioner's decision in the
matter shall be final, subject to appeal as provided in section 7,507
5717.02 of the Revised Code. Only objections decided on the 7,508
merits by the board of tax appeals or a court shall be given 7,509
collateral estoppel or res judicata effect in considering an 7,510
application for refund of amounts paid pursuant to the 7,511
assessment.
(C) After an assessment becomes final, if any portion of 7,513
the assessment remains unpaid, including accrued interest, a 7,514
certified copy of the commissioner's entry making the assessment 7,515
final may be filed in the office of the clerk of the court of 7,516
common pleas in the county in which the employer's, taxpayer's, 7,517
or qualifying entity's place of business is located or the county 7,518
in which the party assessed resides. If the party assessed is 7,519
not a resident of this state, the certified copy of the entry may 7,520
be filed in the office of the clerk of the court of common pleas 7,521
of Franklin county.
Immediately upon the filing of the entry, the clerk shall 7,523
enter a judgment against the party assessed in the amount shown 7,524
on the entry. The judgment shall be filed by the clerk in one of 7,525
two loose-leaf books, one entitled "special judgments for state 7,526
178
and school district income taxes," and the other entitled 7,527
"special judgments for qualifying entity taxes." The judgment 7,528
shall have the same effect as other judgments. Execution shall 7,529
issue upon the judgment upon the request of the tax commissioner, 7,530
and all laws applicable to sales on execution shall apply to 7,531
sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 7,534
days after the assessment was issued shall bear interest at the 7,536
rate per annum prescribed by section 5703.47 of the Revised Code 7,537
from the day the tax commissioner issues the assessment until it 7,538
is paid. Interest shall be paid in the same manner as the tax 7,539
and may be collected by the issuance of an assessment under this 7,540
section.
(D) All money collected under this section shall be 7,542
considered as revenue arising from the taxes imposed by this 7,543
chapter or Chapter 5733. or 5748. of the Revised Code, as 7,544
appropriate.
(E) The portion of an assessment which must be paid upon 7,546
the filing of a petition for reassessment shall be as follows: 7,547
(1) If the sole item objected to is the assessed penalty 7,549
or interest, full payment of the assessment, including INTEREST 7,551
BUT NOT penalty and interest, is required; 7,553
(2) If the taxpayer or qualifying entity that is assessed 7,555
failed to file, prior to the date of issuance of the assessment, 7,557
the annual return or report required by section 5747.08 or 7,558
5747.42 of the Revised Code, any amended return or amended report 7,559
required by section 5747.10 or 5747.45 of the Revised Code for 7,560
the taxable year at issue, or any report required by division (B) 7,561
of section 5747.05 of the Revised Code to indicate a reduction in 7,562
the amount of the credit provided under that division, full 7,563
payment of the assessment, including INTEREST BUT NOT penalty and 7,564
interest, is required, except as otherwise provided under 7,566
division (E)(6) or (7) of this section;
(3) If the employer assessed had not filed, prior to the 7,568
179
date of issuance of the assessment, the annual return required by 7,569
division (E)(2) of section 5747.07 of the Revised Code covering 7,570
the period at issue, full payment of the assessment, including 7,571
INTEREST BUT NOT penalty and interest, is required; 7,572
(4) If the taxpayer or qualifying entity that is assessed 7,574
filed, prior to the date of issuance of the assessment, the 7,576
annual return or report required by section 5747.08 or 5747.42 of 7,578
the Revised Code, all amended returns or reports required by 7,579
section 5747.10 or 5747.45 of the Revised Code for the taxable 7,580
year at issue, and all reports required by division (B) of 7,581
section 5747.05 of the Revised Code to indicate a reduction in 7,582
the amount of the credit provided under that division, and a 7,583
balance of the taxes shown due on the returns or reports as 7,584
computed on the returns or reports remains unpaid, payment of 7,585
only that portion of the assessment representing the unpaid 7,586
balance OF TAX AND INTEREST is required; 7,587
(5) If the employer assessed filed, prior to the date of 7,589
issuance of the assessment, the annual return required by 7,590
division (E)(2) of section 5747.07 of the Revised Code covering 7,591
the period at issue, and a balance of the taxes shown due on the 7,592
return as computed on the return remains unpaid, payment of only 7,593
that portion of the assessment representing the unpaid balance OF 7,594
TAX AND INTEREST is required; 7,596
(6) In the case of a party assessed as a qualifying entity 7,598
subject to the tax levied under section 5733.41 or 5747.41 of the 7,599
Revised Code, if the party does not dispute that it is a 7,600
qualifying entity subject to that tax but claims the protections 7,601
of section 101 of Public Law 86-272, 73 Stat. 555, 15 U.S.C.A. 7,602
381, as amended, no payment is required; 7,603
(7) In the case of a party assessed as a qualifying entity 7,605
subject to the tax levied under section 5733.41 or 5747.41 of the 7,606
Revised Code, if the party does dispute that it is a qualifying 7,607
entity subject to that tax, no payment is required; 7,608
(8) If none of the conditions specified in divisions 7,610
180
(E)(1) to (7) of this section apply, no payment is required. 7,611
(F) Notwithstanding the fact that a petition for 7,613
reassessment is pending, the petitioner may pay all or a portion 7,614
of the assessment that is the subject of the petition. The 7,615
acceptance of a payment by the treasurer of state does not 7,616
prejudice any claim for refund upon final determination of the 7,617
petition. 7,618
If upon final determination of the petition an error in the 7,620
assessment is corrected by the commissioner, upon petition so 7,621
filed or pursuant to a decision of the board of tax appeals or 7,622
any court to which the determination or decision has been 7,623
appealed, so that the amount due from the party assessed under 7,624
the corrected assessment is less than the portion paid, there 7,625
shall be issued to the petitioner or to the petitioner's assigns 7,626
or legal representative a refund in the amount of the overpayment 7,627
as provided by section 5747.11 of the Revised Code, with interest 7,628
on that amount as provided by such section, subject to section 7,629
5747.12 of the Revised Code. 7,630
Sec. 5747.15. (A) In addition to any other penalty 7,639
imposed by this chapter or Chapter 5703. of the Revised Code, the 7,640
following penalties shall apply: 7,641
(1) If a taxpayer, qualifying entity, or employer required 7,643
to file any report or return, including an informational notice, 7,644
report, or return, under this chapter fails to make and file the 7,646
report or return within the time prescribed, including any 7,647
extensions of time granted by the tax commissioner, a penalty 7,648
shall MAY be imposed equal to NOT EXCEEDING the greater of fifty 7,649
dollars per month or fraction of a month, not to exceed five 7,650
hundred dollars, or five per cent per month or fraction of a 7,651
month, not to exceed fifty per cent, of the sum of the taxes 7,652
required to be shown on the report or return, for each month or 7,653
fraction of a month elapsing between the due date, including 7,654
extensions of the due date, and the date on which filed. 7,655
(2) If a taxpayer fails to pay any amount of tax required 7,657
181
to be paid under section 5733.41 or 5747.41 or Chapter 5748. of 7,658
the Revised Code, except estimated tax under section 5747.09 or 7,659
5747.43 of the Revised Code, by the dates prescribed for payment, 7,660
a penalty shall MAY be imposed equal to NOT EXCEEDING twice the 7,662
applicable interest charged under division (G) of section 5747.08 7,664
of the Revised Code for the delinquent payment.
(3)(a) If an employer fails to pay any amount of tax 7,666
imposed by section 5747.02 of the Revised Code and required to be 7,667
paid under this chapter by the dates prescribed for payment, a 7,668
penalty shall MAY be imposed equal to NOT EXCEEDING the sum of 7,670
ten per cent of the delinquent payment plus twice the interest
charged under division (F)(5) of section 5747.07 of the Revised 7,671
Code for the delinquent payment. 7,672
(b) If a qualifying entity fails to pay any amount of tax 7,674
imposed by section 5733.41 or 5747.41 of the Revised Code and 7,676
required to be paid under this chapter by the dates prescribed 7,677
for payment, a penalty shall MAY be imposed equal to NOT 7,678
EXCEEDING the sum of ten per cent of the delinquent payment plus 7,679
twice the applicable interest charged under division (G) of 7,681
section 5747.08 of the Revised Code for the delinquent payment. 7,682
(4)(a) If an employer withholds from employees the tax 7,685
imposed by section 5747.02 of the Revised Code and fails to remit
the tax withheld to the state as required by this chapter on or 7,687
before the dates prescribed for payment, a penalty shall MAY be 7,688
imposed equal to NOT EXCEEDING fifty per cent of the delinquent 7,689
payment. 7,690
(b) If a qualifying entity withholds any amount of tax 7,692
imposed under section 5747.41 of the Revised Code from an 7,694
individual's qualifying amount and fails to remit that amount to 7,695
the state as required by sections 5747.42 to 5747.453 of the 7,696
Revised Code on or before the dates prescribed for payment, a
penalty shall MAY be imposed equal to NOT EXCEEDING fifty per 7,698
cent of the delinquent payment.
(5) If a taxpayer, qualifying entity, or employer files 7,700
182
what purports to be a return required by this chapter that does 7,701
not contain information upon which the substantial correctness of 7,702
the return may be judged or contains information that on its face 7,703
indicates that the return is substantially incorrect, and the 7,704
filing of the return in that manner is due to a position that is 7,705
frivolous or a desire that is apparent from the return to delay 7,706
or impede the administration of the tax levied by section 7,707
5733.41, 5747.02, or 5747.41, or Chapter 5748. of the Revised 7,709
Code, a penalty of UP TO five hundred dollars shall MAY be 7,710
imposed.
(6) If a taxpayer or qualifying entity makes a fraudulent 7,712
attempt to evade the reporting or payment of the tax required to 7,713
be shown on any return required under this chapter, a penalty 7,714
shall MAY be imposed equal to NOT EXCEEDING the greater of one 7,716
thousand dollars or one hundred per cent of the tax required to 7,718
be shown on the return.
(7) If any person makes a false or fraudulent claim for a 7,720
refund under this chapter, a penalty shall MAY be imposed equal 7,722
to NOT EXCEEDING the greater of one thousand dollars or one 7,723
hundred per cent of the claim. The penalty imposed under 7,724
division (A)(7) of this section, any refund issued on the claim, 7,725
and interest on any refund from the date of the refund, may be 7,726
assessed under section 5747.13 of the Revised Code as tax, 7,727
penalty, or interest imposed under section 5733.41, 5747.02, or 7,728
5747.41 of the Revised Code, without regard to whether the person 7,729
making the claim is otherwise subject to the provisions of this 7,730
chapter or Chapter 5733. of the Revised Code, and without regard 7,732
to any time limitation for the assessment imposed by division (A) 7,733
of section 5747.13 of the Revised Code.
(B) For purposes of this section, the taxes required to be 7,735
shown on the return shall be reduced by the amount of any part of 7,736
the taxes paid on or before the date, including any extensions of 7,737
the date, prescribed for filing the return. 7,738
(C) Any penalty imposed under this section shall be in 7,740
183
addition to all other penalties imposed under this section. All 7,741
or part of any penalty imposed under this section may be abated 7,742
by the commissioner. All or part of any penalty imposed under 7,743
this section may be abated by the commissioner if the taxpayer, 7,744
qualifying entity, or employer shows that the failure to comply 7,745
with the provisions of this chapter is due to reasonable cause 7,747
and not willful neglect.
Sec. 5749.07. (A) If any severer required by this chapter 7,756
to make and file returns and pay the tax levied by section 7,757
5749.02 of the Revised Code, fails to make such return or pay 7,758
such tax, the tax commissioner may make an assessment against the 7,759
severer based upon any information in the commissioner's 7,760
possession.
No assessment shall be made or issued against any severer 7,762
for any tax imposed by section 5749.02 of the Revised Code more 7,763
than four years after the return was due or was filed, whichever 7,764
is later. This section does not bar an assessment against a 7,765
severer who fails to file a return as required by this chapter, 7,766
or who files a fraudulent return. 7,767
The commissioner shall give the party assessed written 7,769
notice of such assessment by personal service or certified mail 7,770
AS PROVIDED IN SECTION 5703.37 OF THE REVISED CODE. 7,771
(B) Unless the party to whom such notice of assessment is 7,773
directed files with the commissioner within thirty SIXTY days 7,774
after service of the notice assessment, either personally or by 7,776
certified mail, a petition for reassessment in writing, signed by 7,777
the party assessed, or by an authorized agent of the party 7,779
assessed having knowledge of the facts, the assessment shall
become final and the amount of the assessment shall be due and 7,781
payable from the party assessed to the treasurer of state. The 7,782
petition shall indicate the objections of the party assessed, but 7,783
additional objections may be raised in writing if received prior 7,784
to the date shown on the final determination by the commissioner. 7,785
Unless the petitioner waives a hearing, the commissioner 7,787
184
shall assign a time and place for the hearing on the petition and 7,788
notify the petitioner of the time and place of the hearing by 7,789
personal service or certified mail, but the commissioner may 7,790
continue the hearing from time to time if necessary. 7,791
The commissioner may make such correction to the assessment 7,793
as the commissioner finds proper. The commissioner shall serve a 7,795
copy of the final determination on the petitioner by personal
service or by certified mail, and the commissioner's decision in 7,796
the matter shall be final, subject to appeal as provided in 7,797
section 5717.02 of the Revised Code. Only objections decided on 7,798
the merits by the board of tax appeals or a court shall be given 7,799
collateral estoppel or res judicata effect in considering an 7,800
application for refund of amounts paid pursuant to the 7,801
assessment.
(C) After an assessment becomes final, if any portion of 7,803
the assessment remains unpaid, including accrued interest, a 7,804
certified copy of the commissioner's entry making the assessment 7,806
final may be filed in the office of the clerk of the court of 7,807
common pleas in the county in which the party assessed resides or 7,808
in which the party's business is conducted. If the party 7,809
assessed maintains no place of business in this state and is not 7,810
a resident of this state, the certified copy of the entry may be 7,811
filed in the office of the clerk of the court of common pleas of 7,812
Franklin county.
The clerk, immediately upon the filing of such entry, shall 7,814
enter a judgment for the state against the party assessed in the 7,815
amount shown on the entry. The judgment may be filed by the 7,816
clerk in a loose-leaf book entitled "special judgments for state 7,817
severance tax," and shall have the same effect as other 7,819
judgments. Execution shall issue upon the judgment upon the 7,820
request of the tax commissioner, and all laws applicable to sales 7,821
on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within thirty SIXTY 7,824
days after the day the assessment is issued shall bear interest 7,826
185
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax commissioner issues the 7,827
assessment until it is paid. Interest shall be paid in the same 7,828
manner as the tax and may be collected by the issuance of an 7,829
assessment under this section.
(D) All money collected by the commissioner under this 7,831
section shall be paid to the treasurer of state, and when paid 7,832
shall be considered as revenue arising from the tax imposed by 7,833
section 5749.02 of the Revised Code. 7,834
Sec. 5749.08. The tax commissioner shall refund to 7,843
taxpayers the amount of taxes paid illegally or erroneously or 7,844
paid on an illegal or erroneous assessment. Applications for 7,845
refund shall be filed with the tax commissioner, on the form 7,846
prescribed by him THE COMMISSIONER, within four years from the 7,847
date of the illegal or erroneous payment of the tax. On the 7,848
filing of such application the commissioner shall determine the 7,849
amount of refund due PLUS INTEREST COMPUTED IN ACCORDANCE WITH 7,850
SECTION 5703.47 OF THE REVISED CODE FROM THE DATE OF THE PAYMENT 7,851
OF AN ERRONEOUS OR ILLEGAL ASSESSMENT UNTIL THE DATE THE REFUND 7,853
IS PAID and certify such amount to the director of budget and 7,854
management and treasurer of state payment from the tax refund 7,855
created by section 5703.052 of the Revised Code.
Sec. 5749.15. Any person who fails to file a return or pay 7,864
the tax as required who is assessed such taxes pursuant to 7,866
section 5749.07 or 5749.10 of the Revised Code is MAY BE liable 7,867
for a penalty of five per cent per month or portion of a month on 7,869
the amount of the unpaid taxes due, not to exceed a maximum
penalty of UP TO twenty-five per cent OF THE AMOUNT ASSESSED. 7,870
The tax commissioner may remit all or a portion of the penalty, 7,872
and may adopt rules relating to the IMPOSITION AND remission of 7,873
penalties imposed under this section. 7,874
Section 2. That existing sections 3734.904, 3734.907, 7,876
3769.088, 4301.422, 4303.33, 4305.13, 4305.131, 5703.05, 5703.11, 7,877
5703.37, 5705.37, 5711.04, 5711.18, 5711.25, 5711.28, 5711.31, 7,878
186
5717.01, 5717.02, 5727.11, 5727.26, 5727.47, 5727.89, 5728.01, 7,879
5728.02, 5728.03, 5728.04, 5728.06, 5728.08, 5728.09, 5728.10, 7,880
5733.11, 5733.28, 5735.01, 5735.023, 5735.05, 5735.12, 5735.121, 7,881
5735.14, 5735.141, 5735.142, 5735.145, 5735.18, 5735.23, 5739.01, 7,882
5739.02, 5739.03, 5739.032, 5739.033, 5739.12, 5739.122, 5739.13, 7,883
5739.133, 5739.15, 5739.17, 5739.19, 5739.30, 5741.02, 5741.121, 7,884
5743.03, 5743.081, 5743.082, 5743.52, 5743.56, 5747.07, 5747.09, 7,885
5747.13, 5747.15, 5749.07, 5749.08, and 5749.15 and sections 7,886
5703.141, 5735.17, 5735.32, 5739.161, and 5747.082 of the Revised 7,887
Code are hereby repealed.
Section 3. That the version of section 5741.02 of the 7,889
Revised Code that is to take effect July 1, 2001, be amended to 7,890
read as follows: 7,891
Sec. 5741.02. (A) For the use of the general revenue fund 7,901
of the state, an excise tax is hereby levied on the storage, use, 7,902
or other consumption in this state of tangible personal property 7,903
or the benefit realized in this state of any service provided. 7,904
The tax shall be collected pursuant to the schedules in section 7,905
5739.025 of the Revised Code. 7,906
(B) Each consumer, storing, using, or otherwise consuming 7,908
in this state tangible personal property or realizing in this 7,909
state the benefit of any service provided, shall be liable for 7,910
the tax, and such liability shall not be extinguished until the 7,911
tax has been paid to this state; provided, that the consumer 7,912
shall be relieved from further liability for the tax if the tax 7,913
has been paid to a seller in accordance with section 5741.04 of 7,914
the Revised Code or prepaid by the seller in accordance with 7,915
section 5741.06 of the Revised Code. 7,916
(C) The tax does not apply to the storage, use, or 7,918
consumption in this state of the following described tangible 7,919
personal property or services, nor to the storage, use, or 7,920
consumption or benefit in this state of tangible personal 7,921
property or services purchased under the following described 7,922
circumstances: 7,923
187
(1) When the sale of property or service in this state is 7,925
subject to the excise tax imposed by sections 5739.01 to 5739.31 7,926
of the Revised Code, provided said tax has been paid; 7,927
(2) Except as provided in division (D) of this section, 7,929
tangible personal property or services, the acquisition of which, 7,930
if made in Ohio, would be a sale not subject to the tax imposed 7,931
by sections 5739.01 to 5739.31 of the Revised Code; 7,932
(3) Property or services, the storage, use, or other 7,934
consumption of or benefit from which this state is prohibited 7,935
from taxing by the Constitution of the United States, laws of the 7,937
United States, or the Constitution of this state. This exemption 7,939
shall not exempt from the application of the tax imposed by this 7,940
section the storage, use, or consumption of tangible personal 7,941
property that was purchased in interstate commerce, but that has 7,943
come to rest in this state, provided that fuel to be used or 7,944
transported in carrying on interstate commerce that is stopped 7,946
within this state pending transfer from one conveyance to another
is exempt from the excise tax imposed by this section and section 7,947
5739.02 of the Revised Code; 7,948
(4) Transient use of tangible personal property in this 7,950
state by a nonresident tourist or vacationer, or a non-business 7,951
use within this state by a nonresident of this state, if the 7,952
property so used was purchased outside this state for use outside 7,953
this state and is not required to be registered or licensed under 7,954
the laws of this state; 7,955
(5) Tangible personal property or services rendered upon 7,957
which taxes have been paid to another jurisdiction to the extent 7,958
of the amount of the tax paid to such other jurisdiction. Where 7,959
the amount of the tax imposed by this section and imposed 7,960
pursuant to section 5741.021, 5741.022, or 5741.023 of the 7,961
Revised Code exceeds the amount paid to another jurisdiction, the 7,962
difference shall be allocated between the tax imposed by this 7,963
section and any tax imposed by a county or a transit authority 7,964
pursuant to section 5741.021, 5741.022, or 5741.023 of the 7,965
188
Revised Code, in proportion to the respective rates of such 7,966
taxes. 7,967
As used in this subdivision, "taxes paid to another 7,969
jurisdiction" means the total amount of retail sales or use tax 7,970
or similar tax based upon the sale, purchase, or use of tangible 7,971
personal property or services rendered legally, levied by and 7,972
paid to another state or political subdivision thereof, or to the 7,973
District of Columbia, where the payment of such tax does not 7,974
entitle the taxpayer to any refund or credit for such payment. 7,975
(6) The transfer of a used manufactured home or used 7,977
mobile home, as defined by section 5739.0210 of the Revised Code, 7,978
made on or after January 1, 2000; 7,979
(7) Drugs that are or are intended to be distributed free 7,981
of charge to a practitioner licensed to prescribe, dispense, and 7,982
administer drugs to a human being in the course of a professional 7,983
practice and that by law may be dispensed only by or upon the 7,984
order of such a practitioner.
(D) The tax applies to the storage, use, or other 7,986
consumption in this state of tangible personal property or 7,987
services, the acquisition of which at the time of sale was 7,988
excepted under division (E)(1) of section 5739.01 of the Revised 7,989
Code from the tax imposed by section 5739.02 of the Revised Code, 7,990
but which has subsequently been temporarily or permanently 7,991
stored, used, or otherwise consumed in a taxable manner. 7,992
(E) IF ANY TRANSACTION IS CLAIMED TO BE EXEMPT UNDER 7,994
DIVISION (E) OF SECTION 5739.01 OF THE REVISED CODE OR UNDER 7,996
SECTION 5739.02 OF THE REVISED CODE, WITH THE EXCEPTION OF 7,997
DIVISIONS (B)(1) TO (11) OR (28) OF SECTION 5739.02 OF THE 7,998
REVISED CODE, THE CONSUMER SHALL FURNISH TO THE SELLER, AND THE 7,999
SELLER SHALL OBTAIN FROM THE CONSUMER, A CERTIFICATE SPECIFYING 8,000
THE REASON THAT THE TRANSACTION IS NOT SUBJECT TO THE TAX. IF 8,001
THE TRANSACTION IS CLAIMED TO BE EXEMPT UNDER DIVISION (B)(13) OF 8,002
SECTION 5739.02 OF THE REVISED CODE, THE EXEMPTION CERTIFICATE 8,003
SHALL BE SIGNED BY BOTH THE CONTRACTOR AND CONTRACTEE, AND THE 8,004
189
CONTRACTEE SHALL BE DEEMED TO BE THE CONSUMER OF ALL ITEMS
PURCHASED UNDER THE CLAIM OF EXEMPTION IF IT IS SUBSEQUENTLY 8,006
DETERMINED THAT THE EXEMPTION IS NOT PROPERLY CLAIMED. THE 8,007
CERTIFICATE SHALL BE IN SUCH FORM AS THE TAX COMMISSIONER BY RULE 8,008
PRESCRIBES. IF NO CERTIFICATE IS FURNISHED OR OBTAINED WITHIN 8,009
THE PERIOD FOR FILING THE RETURN FOR THE PERIOD IN WHICH THE 8,010
TRANSACTION IS CONSUMMATED, IT SHALL BE PRESUMED THAT THE TAX 8,011
APPLIES. THE FAILURE TO HAVE SO FURNISHED OR OBTAINED A 8,012
CERTIFICATE SHALL NOT PRECLUDE A SELLER OR CONSUMER FROM 8,013
ESTABLISHING, WITHIN ONE HUNDRED TWENTY DAYS OF THE GIVING OF 8,014
NOTICE BY THE COMMISSIONER OF INTENTION TO LEVY AN ASSESSMENT, 8,015
THAT THE TRANSACTION IS NOT SUBJECT TO THE TAX.
(F) A SELLER WHO FILES A PETITION FOR REASSESSMENT 8,017
CONTESTING THE ASSESSMENT OF TAX ON TRANSACTIONS FOR WHICH THE 8,018
SELLER OBTAINED NO VALID EXEMPTION CERTIFICATES AND FOR WHICH THE 8,019
SELLER FAILED TO ESTABLISH THAT THE TRANSACTIONS WERE NOT SUBJECT 8,020
TO THE TAX DURING THE ONE-HUNDRED-TWENTY-DAY PERIOD ALLOWED UNDER 8,021
DIVISION (E) OF THIS SECTION MAY PRESENT TO THE TAX COMMISSIONER 8,022
ADDITIONAL EVIDENCE TO PROVE THAT THE TRANSACTIONS WERE EXEMPT. 8,023
THE SELLER SHALL FILE SUCH EVIDENCE WITHIN NINETY DAYS OF THE 8,024
RECEIPT BY THE SELLER OF THE NOTICE OF ASSESSMENT, EXCEPT THAT, 8,025
UPON APPLICATION AND FOR REASONABLE CAUSE, THE TAX COMMISSIONER 8,026
MAY EXTEND THE PERIOD FOR SUBMITTING SUCH EVIDENCE THIRTY DAYS. 8,027
(G) For the purpose of the proper administration of 8,029
sections 5741.01 to 5741.22 of the Revised Code, and to prevent 8,030
the evasion of the tax hereby levied, it shall be presumed that 8,031
any use, storage, or other consumption of tangible personal 8,032
property in this state is subject to the tax until the contrary 8,033
is established. 8,034
Section 4. That the existing version of section 5741.02 of 8,036
the Revised Code that is to take effect July 1, 2001, is hereby 8,037
repealed. 8,038
Section 5. Section 4301.422 of the Revised Code is 8,040
presented in this act as a composite of the section as amended by 8,041
190
both Sub. H.B. 239 and Am. Sub. S.B. 188 of the 121st General 8,042
Assembly, with the new language of neither of the acts shown in 8,044
capital letters. Section 5739.02 of the Revised Code is 8,045
presented in this act as a composite of the section as amended by 8,046
both Sub. H.B. 223 and Am. Sub. S.B. 3 of the 123rd General 8,047
Assembly, with the new language of neither of the acts shown in 8,048
capital letters. This is in recognition of the principle stated 8,049
in division (B) of section 1.52 of the Revised Code that such 8,050
amendments are to be harmonized where not substantively 8,051
irreconcilable and constitutes a legislative finding that such is 8,052
the resulting version in effect prior to the effective date of 8,053
this act.