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