As Reported by House Ways & Means Committee             1            

123rd General Assembly                                             4            

   Regular Session                               Am. H. B. No. 99  5            

      1999-2000                                                    6            


       REPRESENTATIVES YOUNG-AMSTUTZ-BEATTY-BRADING-BUCHY-         8            

           CALLENDER-CAREY-CATES-CORBIN-CORE-COUGHLIN-             9            

          DAMSCHRODER-EVANS-FLANNERY-GARDNER-GRENDELL-             10           

         HARTNETT-HOOD-HOUSEHOLDER-JACOBSON-JERSE-JONES-           11           

      JORDAN-KREBS-LUCAS-MAIER-MEAD-R.MILLER-MOTTLEY-MYERS-        12           

       NETZLEY-OLMAN-PATTON-PRINGLE-ROMAN-SALERNO-SCHUCK-          13           

      SCHULER-SULLIVAN-TAYLOR-TERWILLEGER-VESPER-VAN VYVEN-        14           

      WESTON-WILLAMOWSKI-WILLIAMS-HOLLISTER-BRITTON-BARNES-        15           

                 JOLIVETTE-HAINES-AUSTRIA-PERRY                    16           


_________________________________________________________________   17           

                          A   B I L L                                           

             To amend sections 5733.26 and 5747.08 and to enact    19           

                sections 5733.261 and 5747.132 of the Revised      20           

                Code to eliminate the payment of interest by a     21           

                taxpayer on repayment of certain excess refunds    22           

                of state income or corporation franchise  taxes.   24           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        26           

      Section 1.  That sections 5733.26 and 5747.08 be amended     28           

and sections 5733.261 and 5747.132 of the Revised Code be enacted  30           

to read as follows:                                                             

      Sec. 5733.26.  (A)  If EXCEPT AS PROVIDED IN SECTION         39           

5733.261 OF THE REVISED CODE, IF the tax imposed by section        41           

5733.06 of the Revised Code, or any portion of that tax, whether   42           

determined by the tax commissioner or the taxpayer, is not paid    43           

on or before the date prescribed for its payment, interest shall   44           

be assessed, collected, and paid, in the same manner as the tax,   45           

upon such unpaid amount at the rate per annum prescribed by        46           

section 5703.47 of the Revised Code from the date prescribed for   47           

its payment until it is paid or until the day an assessment is     48           

                                                          2      


                                                                 
issued under section 5733.11 of the Revised Code, whichever        49           

occurs first.                                                                   

      (B)  Interest shall be allowed and paid at the rate per      51           

annum prescribed by section 5703.47 of the Revised Code upon       52           

amounts refunded with respect to the tax imposed by section        54           

5733.06 of the Revised Code.  The interest shall run from                       

whichever of the following dates is the latest until the date the  56           

refund is paid:  the date of the illegal, erroneous, or excessive  57           

payment; the ninetieth day after the final date the annual report  58           

under section 5733.02 of the Revised Code was required to be       59           

filed; or the ninetieth day after the date that report was filed.  60           

      If the overpayment results from the carryback of a net       62           

capital loss to a previous taxable year, the overpayment is        63           

deemed not to have been made prior to the filing date, including   64           

any extension thereof, for the taxable year in which the net       65           

capital loss arises.                                               66           

      Sec. 5733.261.  (A)  AS USED IN THIS SECTION, "QUALIFYING    69           

REFUND OVERPAYMENT" MEANS AN AMOUNT RECEIVED BY A TAXPAYER IN      70           

EXCESS OF A REFUND OR REQUEST FOR PAYMENT CLAIMED OR MADE BY OR    71           

ON BEHALF OF THE TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT   72           

FILED WITH THE TAX COMMISSIONER.                                   73           

      (B)  A TAXPAYER IS NOT LIABLE FOR ANY INTEREST OR PENALTY    76           

WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND OVERPAYMENT   77           

IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE   78           

TAX COMMISSIONER NOT LATER THAN THIRTY DAYS AFTER THE TAXPAYER     79           

RECEIVES AN ASSESSMENT FOR IT.  IF THE TAXPAYER DOES NOT PAY THE   80           

ENTIRE AMOUNT OF THE OVERPAYMENT TO THE COMMISSIONER WITHIN THE    81           

TIME PRESCRIBED BY THIS SECTION, INTEREST SHALL ACCRUE ON THE      82           

AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION 5733.11 OF THE        84           

REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES THE ASSESSMENT   85           

UNTIL THE DEFICIENCY IS PAID.                                      86           

      Sec. 5747.08.  An annual return with respect to the tax      95           

imposed by section 5747.02 of the Revised Code and each tax        96           

imposed under Chapter 5748. of the Revised Code shall be made by   97           

                                                          3      


                                                                 
every taxpayer for any taxable year for which the taxpayer is      98           

liable for the tax imposed by that section or under that chapter,  99           

unless the total credits allowed under divisions (E), (F), and     100          

(G) of section 5747.05 of the Revised Code for the year are equal  101          

to or exceed the tax imposed by section 5747.02 of the Revised     102          

Code, in which case no return shall be required unless the         103          

taxpayer is liable for a tax imposed pursuant to Chapter 5748. of  104          

the Revised Code.                                                  105          

      (A)  If an individual is deceased, any return or notice      107          

required of that individual under this chapter shall be made and   108          

filed by that decedent's executor, administrator, or other person  110          

charged with the property of that decedent.                                     

      (B)  If an individual is unable to make a return or notice   112          

required by this chapter, the return or notice required of that    113          

individual shall be made and filed by the individual's duly        114          

authorized agent, guardian, conservator, fiduciary, or other       115          

person charged with the care of the person or property of that     116          

individual.                                                                     

      (C)  Returns or notices required of an estate or a trust     118          

shall be made and filed by the fiduciary of the estate or trust.   119          

      (D)(1)(a)  Except as otherwise provided in division          122          

(D)(1)(b) of this section, any pass-through entity may file a      124          

single return on behalf of one or more of the entity's investors   125          

other than an investor that is a person subject to the tax         127          

imposed under section 5733.06 of the Revised Code.  The single                  

return shall set forth the name, address, and social security      128          

number of each of those pass-through entity investors and shall    131          

indicate the distributive share of each of those pass-through      132          

entity investor's income taxable in this state in accordance with  133          

sections 5747.20 to 5747.231 of the Revised Code.  Such            136          

pass-through entity investors for whom the pass-through entity     137          

elects to file a single return are not entitled to the exemption   138          

or credit provided for by sections 5747.02 and 5747.022 of the     139          

Revised Code; shall calculate the tax before business credits at   142          

                                                          4      


                                                                 
the highest rate of tax set forth in section 5747.02 of the        143          

Revised Code for the taxable year for which the return is filed;   145          

and are entitled to only their distributive share of the business  146          

credits as defined in division (D)(2) of this section.  A single   148          

check drawn by the pass-through entity shall accompany the return  150          

in full payment of the tax due for such investors other than       151          

investors who are persons subject to the tax imposed under         152          

section 5733.06 of the Revised Code.                               153          

      (b)(i)  A pass-through entity shall not include in such a    156          

single return any investor that is a trust to the extent that any  157          

direct or indirect current, future, or contingent beneficiary of   158          

the trust is a person subject to the tax imposed under section     159          

5733.06 of the Revised Code.                                       160          

      (ii)  A pass-through entity shall not include in such a      163          

single return any investor that is itself a pass-through entity    164          

to the extent that any direct or indirect investor in the second   165          

pass-through entity is a person subject to the tax imposed under   166          

section 5733.06 of the Revised Code.                               167          

      (c)  Nothing in division (D) of this section precludes the   171          

tax commissioner from requiring such investors to file the return  172          

and make the payment of taxes and related interest, penalty, and   173          

interest penalty required by this section or section 5747.02,      174          

5747.09, or 5747.15 of the Revised Code.  Nothing in division (D)  176          

of this section shall be construed to provide to such an investor  177          

or pass-through entity any additional deduction or credit, other   178          

than the credit provided by division (J) of this section, solely   180          

on account of the entity's filing a return in accordance with      181          

this section.  Such a pass-through entity also shall make the      182          

filing and payment of estimated taxes on behalf of the             183          

pass-through entity investors other than an investor that is a     185          

person subject to the tax imposed under section 5733.06 of the     186          

Revised Code.                                                                   

      (2)  For the purposes of this section, "business credits"    189          

means the credits listed in section 5747.98 of the Revised Code    192          

                                                          5      


                                                                 
excluding the following credits:                                   193          

      (b)(a)  The retirement credit under division (B) of section  195          

5747.055 of the Revised Code;                                      197          

      (c)(b)  The senior citizen credit under division (C) of      200          

section 5747.05 of the Revised Code;                                            

      (d)(c)  The lump sum distribution credit under division (D)  203          

of section 5747.05 of the Revised Code;                            205          

      (e)(d)  The dependent care credit under section 5747.054 of  208          

the Revised Code;                                                  209          

      (f)(e)  The lump sum retirement income credit under          212          

division (C) of section 5747.055 of the Revised Code;              214          

      (g)(f)  The lump sum retirement income credit under          217          

division (D) of section 5747.055 of the Revised Code;              219          

      (h)(g)  The lump sum retirement income credit under          222          

division (E) of section 5747.055 of the Revised Code;              224          

      (i)(h)  The credit for displaced workers who pay for job     227          

training under section 5747.27 of the Revised Code;                229          

      (j)(i)  The twenty-dollar personal exemption credit under    232          

section 5747.022 of the Revised Code;                              234          

      (k)(j)  The joint filing credit under division (G) of        237          

section 5747.05 of the Revised Code;                               239          

      (l)(k)  The nonresident credit under division (A) of         242          

section 5747.05 of the Revised Code;                               244          

      (m)(l)  The credit for a resident's out-of-state income      247          

under division (B) of section 5747.05 of the Revised Code.         250          

      (3)  The election provided for under division (D) of this    253          

section applies only to the taxable year for which the election    254          

is made by the pass-through entity.  Unless the tax commissioner   255          

provides otherwise, this election, once made, is binding and       256          

irrevocable for the taxable year for which the election is made.   257          

Nothing in this division shall be construed to provide for any     258          

deduction or credit that would not be allowable if a nonresident   259          

pass-through entity investor were to file an annual return.        260          

      (4)  If a pass-through entity makes the election provided    262          

                                                          6      


                                                                 
for under division (D) of this section, the pass-through entity    264          

shall be liable for any additional taxes, interest, interest       265          

penalty, or penalties imposed by this chapter if the tax           267          

commissioner determines that the single return does not reflect    268          

the correct tax due by nonresident pass-through entity investors   269          

covered by that return.  Nothing in this division shall be         270          

construed to limit or alter the liability, if any, imposed on      271          

pass-through entity investors for unpaid or underpaid taxes,       272          

interest, interest penalty, or penalties as a result of the                     

pass-through entity's making the election provided for under       273          

division (D) of this section.  For the purposes of division (D)    276          

of this section, "correct tax due" means the tax that would have   277          

been paid by the pass-through entity had the single return been    278          

filed in a manner reflecting and including the findings and        279          

determinations made by the tax commissioner.  Nothing in division  281          

(D) of this section shall be construed to make or hold a           282          

pass-through entity liable for tax attributable to a pass-through  283          

entity investor's income from a source other than the              284          

pass-through entity electing to file the single return.            285          

      (E)  If a husband and wife file a joint federal income tax   287          

return for a taxable year, they shall file a joint return under    288          

this section for that taxable year, and their liabilities are      289          

joint and several, but, if the federal income tax liability of     290          

either spouse is determined on a separate federal income tax       291          

return, they shall file separate returns under this section.       292          

      If either spouse is not required to file a federal income    294          

tax return and either or both are required to file a return        295          

pursuant to this chapter, they may elect to file separate or       296          

joint returns, and, pursuant to that election, their liabilities   297          

are separate or joint and several.  If a husband and wife file     298          

separate returns pursuant to this chapter, each must claim the     299          

taxpayer's own exemption, but not both, as authorized under        300          

section 5747.02 of the Revised Code on the taxpayer's own return.  303          

      (F)  Each return or notice required to be filed under this   305          

                                                          7      


                                                                 
section shall contain the signature of the taxpayer or the         307          

taxpayer's duly authorized agent and of the person who prepared    308          

the return for the taxpayer, and shall include the taxpayer's      309          

social security number.  Each return shall be verified by a        310          

declaration under the penalties of perjury.  The tax commissioner  311          

shall prescribe the form that the signature and declaration shall  312          

take.                                                                           

      (G)  Each return or notice required to be filed under this   314          

section shall be made and filed as required by section 5747.04 of  315          

the Revised Code, on or before the fifteenth day of April of each  316          

year, on forms that the tax commissioner shall prescribe,          317          

together with remittance made payable to the treasurer of state    318          

in the combined amount of the state and all school district        319          

income taxes shown to be due on the form, unless the combined      320          

amount shown to be due is one dollar or less, in which case that   321          

amount need not be remitted.                                       322          

      Upon good cause shown, the commissioner may extend the       324          

period for filing any notice or return required to be filed under  325          

this section and may adopt rules relating to extensions.  If the   326          

extension results in an extension of time for the payment of any   327          

state or school district income tax liability with respect to      328          

which the return is filed, the taxpayer shall pay at the time the  329          

tax liability is paid an amount of interest computed at the rate   330          

per annum prescribed by section 5703.47 of the Revised Code on     331          

that liability from the time that payment is due without           332          

extension to the time of actual payment.  In EXCEPT AS PROVIDED    334          

IN SECTION 5747.132 OF THE REVISED CODE, IN addition to all other  336          

interest charges and penalties, all taxes imposed under this                    

chapter or Chapter 5748. of the Revised Code and remaining unpaid  340          

after they become due, except combined amounts due of one dollar   341          

or less, bear interest at the rate per annum prescribed by                      

section 5703.47 of the Revised Code until paid or until the day    342          

an assessment is issued under section 5747.13 of the Revised       343          

Code, whichever occurs first.  If                                  344          

                                                          8      


                                                                 
      IF the commissioner considers it necessary in order to       347          

ensure the payment of the tax imposed by section 5747.02 of the    348          

Revised Code or any tax imposed under Chapter 5748. of the         349          

Revised Code, the commissioner may require returns and payments    350          

to be made otherwise than as provided in this section.             351          

      (H)  If any report, claim, statement, or other document      353          

required to be filed, or any payment required to be made, within   354          

a prescribed period or on or before a prescribed date under this   355          

chapter is delivered after that period or that date by United      356          

States mail to the agency, officer, or office with which the       357          

report, claim, statement, or other document is required to be      358          

filed, or to which the payment is required to be made, the date    359          

of the postmark stamped on the cover in which the report, claim,   360          

statement, or other document, or payment is mailed shall be        361          

deemed to be the date of delivery or the date of payment.          362          

      If a payment is required to be made by electronic funds      364          

transfer pursuant to section 5747.072 of the Revised Code, the     365          

payment is considered to be made when the payment is received by   366          

the treasurer of state or credited to an account designated by     367          

the treasurer of state for the receipt of tax payments.            368          

      "The date of the postmark" means, in the event there is      371          

more than one date on the cover, the earliest date imprinted on    372          

the cover by the United States postal service.                                  

      (I)  The amounts withheld by the employer pursuant to        374          

section 5747.06 of the Revised Code shall be allowed to the        375          

recipient of the compensation as credits against payment of the    376          

appropriate taxes imposed on the recipient by section 5747.02 and  378          

under Chapter 5748. of the Revised Code.                                        

      (J)  If, in accordance with division (D) of this section, a  382          

pass-through entity elects to file a single return and if any      383          

investor is required to file the return and make the payment of    384          

taxes required by this chapter on account of the investor's other  385          

income that is not included in a single return filed by a          386          

pass-through entity, the investor is entitled to a refundable      387          

                                                          9      


                                                                 
credit equal to the investor's proportionate share of the tax      388          

paid by the pass-through entity on behalf of the investor.  The    389          

investor shall claim the credit for the investor's taxable year    390          

in which or with which ends the taxable year of the pass-through   391          

entity.  Nothing in this chapter shall be construed to allow any   392          

credit provided in this chapter to be claimed more than once.      393          

For the purposes of computing any interest, penalty, or interest   394          

penalty, the investor shall be deemed to have paid the refundable  395          

credit provided by this division on the day that the pass-through  396          

entity paid the estimated tax or the tax giving rise to the        397          

credit.                                                                         

      Sec. 5747.132.  (A)  AS USED IN THIS SECTION:                399          

      (1)  "QUALIFYING TAXPAYER" MEANS A TAXPAYER, EMPLOYER, OR    401          

QUALIFYING ENTITY.                                                 402          

      (2)  "QUALIFYING REFUND OVERPAYMENT" MEANS AN AMOUNT         404          

RECEIVED BY A QUALIFYING TAXPAYER IN EXCESS OF A REFUND OR         405          

REQUEST FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE         406          

QUALIFYING TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT FILED   408          

WITH THE TAX COMMISSIONER.                                                      

      (B)  A QUALIFYING TAXPAYER IS NOT LIABLE FOR ANY INTEREST    411          

OR PENALTY WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND    412          

OVERPAYMENT IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE          413          

OVERPAYMENT TO THE TAX COMMISSIONER NOT LATER THAN THIRTY DAYS     414          

AFTER THE TAXPAYER RECEIVES AN ASSESSMENT FOR IT.  IF THE          415          

TAXPAYER DOES NOT PAY THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE  416          

COMMISSIONER WITHIN THE TIME PRESCRIBED BY THIS SECTION, INTEREST  417          

SHALL ACCRUE ON THE AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION   418          

5747.13 OF THE REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES   420          

THE ASSESSMENT UNTIL THE DEFICIENCY IS PAID.                       421          

      Section 2.  That existing sections 5733.26 and 5747.08 of    423          

the Revised Code are hereby repealed.                              424          

      Section 3.  The amendment or enactment by this act of        426          

sections 5733.26, 5733.261, 5747.08, and 5747.132 of the Revised   428          

Code shall be applied to prohibit the accrual of interest or       429          

                                                          10     


                                                                 
penalty with respect to tax refund overpayment assessments         430          

received by taxpayers after the effective date of this act,        432          

regardless of the time of claim for the refund.                    433