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