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          

                                                          4      


                                                                 
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          

                                                          5      


                                                                 
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.