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