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           

                                                          3      


                                                                 
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          

                                                          4      


                                                                 
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          

                                                          5      


                                                                 
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          

                                                          6      


                                                                 
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          

                                                          7      


                                                                 
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          

                                                          8      


                                                                 
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.                                                                            

                                                          10     


                                                                 
      (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          

                                                          11     


                                                                 
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          

                                                          13     


                                                                 
      (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          

                                                          14     


                                                                 
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          

                                                          15     


                                                                 
      (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.