As Passed by the House                        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-PETERSON-BUEHRER-GOODMAN-       16           

     WINKLER-CLANCY-TIBERI-DePIERO-D.MILLER-HARRIS-SCHURING-       17           

            SUTTON-STAPLETON-HOOPS-THOMAS-WILSON-OGG               18           


_________________________________________________________________   19           

                          A   B I L L                                           

             To amend sections 5733.26 and 5747.08 and to enact    21           

                sections 5733.261 and 5747.132 of the Revised      22           

                Code to eliminate the payment of interest by a     23           

                taxpayer on repayment of certain excess refunds    24           

                of state income or corporation franchise  taxes.   26           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        28           

      Section 1.  That sections 5733.26 and 5747.08 be amended     30           

and sections 5733.261 and 5747.132 of the Revised Code be enacted  32           

to read as follows:                                                             

      Sec. 5733.26.  (A)  If EXCEPT AS PROVIDED IN SECTION         41           

5733.261 OF THE REVISED CODE, IF the tax imposed by section        43           

5733.06 of the Revised Code, or any portion of that tax, whether   44           

determined by the tax commissioner or the taxpayer, is not paid    45           

on or before the date prescribed for its payment, interest shall   46           

be assessed, collected, and paid, in the same manner as the tax,   47           

upon such unpaid amount at the rate per annum prescribed by        48           

                                                          2      


                                                                 
section 5703.47 of the Revised Code from the date prescribed for   49           

its payment until it is paid or until the day an assessment is     50           

issued under section 5733.11 of the Revised Code, whichever        51           

occurs first.                                                                   

      (B)  Interest shall be allowed and paid at the rate per      53           

annum prescribed by section 5703.47 of the Revised Code upon       54           

amounts refunded with respect to the tax imposed by section        56           

5733.06 of the Revised Code.  The interest shall run from                       

whichever of the following dates is the latest until the date the  58           

refund is paid:  the date of the illegal, erroneous, or excessive  59           

payment; the ninetieth day after the final date the annual report  60           

under section 5733.02 of the Revised Code was required to be       61           

filed; or the ninetieth day after the date that report was filed.  62           

      If the overpayment results from the carryback of a net       64           

capital loss to a previous taxable year, the overpayment is        65           

deemed not to have been made prior to the filing date, including   66           

any extension thereof, for the taxable year in which the net       67           

capital loss arises.                                               68           

      Sec. 5733.261.  (A)  AS USED IN THIS SECTION, "QUALIFYING    71           

REFUND OVERPAYMENT" MEANS AN AMOUNT RECEIVED BY A TAXPAYER IN      72           

EXCESS OF A REFUND OR REQUEST FOR PAYMENT CLAIMED OR MADE BY OR    73           

ON BEHALF OF THE TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT   74           

FILED WITH THE TAX COMMISSIONER.                                   75           

      (B)  A TAXPAYER IS NOT LIABLE FOR ANY INTEREST OR PENALTY    78           

WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND OVERPAYMENT   79           

IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE   80           

TAX COMMISSIONER NOT LATER THAN THIRTY DAYS AFTER THE TAXPAYER     81           

RECEIVES AN ASSESSMENT FOR IT.  IF THE TAXPAYER DOES NOT PAY THE   82           

ENTIRE AMOUNT OF THE OVERPAYMENT TO THE COMMISSIONER WITHIN THE    83           

TIME PRESCRIBED BY THIS SECTION, INTEREST SHALL ACCRUE ON THE      84           

AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION 5733.11 OF THE        86           

REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES THE ASSESSMENT   87           

UNTIL THE DEFICIENCY IS PAID.                                      88           

      Sec. 5747.08.  An annual return with respect to the tax      97           

                                                          3      


                                                                 
imposed by section 5747.02 of the Revised Code and each tax        98           

imposed under Chapter 5748. of the Revised Code shall be made by   99           

every taxpayer for any taxable year for which the taxpayer is      100          

liable for the tax imposed by that section or under that chapter,  101          

unless the total credits allowed under divisions (E), (F), and     102          

(G) of section 5747.05 of the Revised Code for the year are equal  103          

to or exceed the tax imposed by section 5747.02 of the Revised     104          

Code, in which case no return shall be required unless the         105          

taxpayer is liable for a tax imposed pursuant to Chapter 5748. of  106          

the Revised Code.                                                  107          

      (A)  If an individual is deceased, any return or notice      109          

required of that individual under this chapter shall be made and   110          

filed by that decedent's executor, administrator, or other person  112          

charged with the property of that decedent.                                     

      (B)  If an individual is unable to make a return or notice   114          

required by this chapter, the return or notice required of that    115          

individual shall be made and filed by the individual's duly        116          

authorized agent, guardian, conservator, fiduciary, or other       117          

person charged with the care of the person or property of that     118          

individual.                                                                     

      (C)  Returns or notices required of an estate or a trust     120          

shall be made and filed by the fiduciary of the estate or trust.   121          

      (D)(1)(a)  Except as otherwise provided in division          124          

(D)(1)(b) of this section, any pass-through entity may file a      126          

single return on behalf of one or more of the entity's investors   127          

other than an investor that is a person subject to the tax         129          

imposed under section 5733.06 of the Revised Code.  The single                  

return shall set forth the name, address, and social security      130          

number of each of those pass-through entity investors and shall    133          

indicate the distributive share of each of those pass-through      134          

entity investor's income taxable in this state in accordance with  135          

sections 5747.20 to 5747.231 of the Revised Code.  Such            138          

pass-through entity investors for whom the pass-through entity     139          

elects to file a single return are not entitled to the exemption   140          

                                                          4      


                                                                 
or credit provided for by sections 5747.02 and 5747.022 of the     141          

Revised Code; shall calculate the tax before business credits at   144          

the highest rate of tax set forth in section 5747.02 of the        145          

Revised Code for the taxable year for which the return is filed;   147          

and are entitled to only their distributive share of the business  148          

credits as defined in division (D)(2) of this section.  A single   150          

check drawn by the pass-through entity shall accompany the return  152          

in full payment of the tax due for such investors other than       153          

investors who are persons subject to the tax imposed under         154          

section 5733.06 of the Revised Code.                               155          

      (b)(i)  A pass-through entity shall not include in such a    158          

single return any investor that is a trust to the extent that any  159          

direct or indirect current, future, or contingent beneficiary of   160          

the trust is a person subject to the tax imposed under section     161          

5733.06 of the Revised Code.                                       162          

      (ii)  A pass-through entity shall not include in such a      165          

single return any investor that is itself a pass-through entity    166          

to the extent that any direct or indirect investor in the second   167          

pass-through entity is a person subject to the tax imposed under   168          

section 5733.06 of the Revised Code.                               169          

      (c)  Nothing in division (D) of this section precludes the   173          

tax commissioner from requiring such investors to file the return  174          

and make the payment of taxes and related interest, penalty, and   175          

interest penalty required by this section or section 5747.02,      176          

5747.09, or 5747.15 of the Revised Code.  Nothing in division (D)  178          

of this section shall be construed to provide to such an investor  179          

or pass-through entity any additional deduction or credit, other   180          

than the credit provided by division (J) of this section, solely   182          

on account of the entity's filing a return in accordance with      183          

this section.  Such a pass-through entity also shall make the      184          

filing and payment of estimated taxes on behalf of the             185          

pass-through entity investors other than an investor that is a     187          

person subject to the tax imposed under section 5733.06 of the     188          

Revised Code.                                                                   

                                                          5      


                                                                 
      (2)  For the purposes of this section, "business credits"    191          

means the credits listed in section 5747.98 of the Revised Code    194          

excluding the following credits:                                   195          

      (b)(a)  The retirement credit under division (B) of section  197          

5747.055 of the Revised Code;                                      199          

      (c)(b)  The senior citizen credit under division (C) of      202          

section 5747.05 of the Revised Code;                                            

      (d)(c)  The lump sum distribution credit under division (D)  205          

of section 5747.05 of the Revised Code;                            207          

      (e)(d)  The dependent care credit under section 5747.054 of  210          

the Revised Code;                                                  211          

      (f)(e)  The lump sum retirement income credit under          214          

division (C) of section 5747.055 of the Revised Code;              216          

      (g)(f)  The lump sum retirement income credit under          219          

division (D) of section 5747.055 of the Revised Code;              221          

      (h)(g)  The lump sum retirement income credit under          224          

division (E) of section 5747.055 of the Revised Code;              226          

      (i)(h)  The credit for displaced workers who pay for job     229          

training under section 5747.27 of the Revised Code;                231          

      (j)(i)  The twenty-dollar personal exemption credit under    234          

section 5747.022 of the Revised Code;                              236          

      (k)(j)  The joint filing credit under division (G) of        239          

section 5747.05 of the Revised Code;                               241          

      (l)(k)  The nonresident credit under division (A) of         244          

section 5747.05 of the Revised Code;                               246          

      (m)(l)  The credit for a resident's out-of-state income      249          

under division (B) of section 5747.05 of the Revised Code.         252          

      (3)  The election provided for under division (D) of this    255          

section applies only to the taxable year for which the election    256          

is made by the pass-through entity.  Unless the tax commissioner   257          

provides otherwise, this election, once made, is binding and       258          

irrevocable for the taxable year for which the election is made.   259          

Nothing in this division shall be construed to provide for any     260          

deduction or credit that would not be allowable if a nonresident   261          

                                                          6      


                                                                 
pass-through entity investor were to file an annual return.        262          

      (4)  If a pass-through entity makes the election provided    264          

for under division (D) of this section, the pass-through entity    266          

shall be liable for any additional taxes, interest, interest       267          

penalty, or penalties imposed by this chapter if the tax           269          

commissioner determines that the single return does not reflect    270          

the correct tax due by nonresident pass-through entity investors   271          

covered by that return.  Nothing in this division shall be         272          

construed to limit or alter the liability, if any, imposed on      273          

pass-through entity investors for unpaid or underpaid taxes,       274          

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

pass-through entity's making the election provided for under       275          

division (D) of this section.  For the purposes of division (D)    278          

of this section, "correct tax due" means the tax that would have   279          

been paid by the pass-through entity had the single return been    280          

filed in a manner reflecting and including the findings and        281          

determinations made by the tax commissioner.  Nothing in division  283          

(D) of this section shall be construed to make or hold a           284          

pass-through entity liable for tax attributable to a pass-through  285          

entity investor's income from a source other than the              286          

pass-through entity electing to file the single return.            287          

      (E)  If a husband and wife file a joint federal income tax   289          

return for a taxable year, they shall file a joint return under    290          

this section for that taxable year, and their liabilities are      291          

joint and several, but, if the federal income tax liability of     292          

either spouse is determined on a separate federal income tax       293          

return, they shall file separate returns under this section.       294          

      If either spouse is not required to file a federal income    296          

tax return and either or both are required to file a return        297          

pursuant to this chapter, they may elect to file separate or       298          

joint returns, and, pursuant to that election, their liabilities   299          

are separate or joint and several.  If a husband and wife file     300          

separate returns pursuant to this chapter, each must claim the     301          

taxpayer's own exemption, but not both, as authorized under        302          

                                                          7      


                                                                 
section 5747.02 of the Revised Code on the taxpayer's own return.  305          

      (F)  Each return or notice required to be filed under this   307          

section shall contain the signature of the taxpayer or the         309          

taxpayer's duly authorized agent and of the person who prepared    310          

the return for the taxpayer, and shall include the taxpayer's      311          

social security number.  Each return shall be verified by a        312          

declaration under the penalties of perjury.  The tax commissioner  313          

shall prescribe the form that the signature and declaration shall  314          

take.                                                                           

      (G)  Each return or notice required to be filed under this   316          

section shall be made and filed as required by section 5747.04 of  317          

the Revised Code, on or before the fifteenth day of April of each  318          

year, on forms that the tax commissioner shall prescribe,          319          

together with remittance made payable to the treasurer of state    320          

in the combined amount of the state and all school district        321          

income taxes shown to be due on the form, unless the combined      322          

amount shown to be due is one dollar or less, in which case that   323          

amount need not be remitted.                                       324          

      Upon good cause shown, the commissioner may extend the       326          

period for filing any notice or return required to be filed under  327          

this section and may adopt rules relating to extensions.  If the   328          

extension results in an extension of time for the payment of any   329          

state or school district income tax liability with respect to      330          

which the return is filed, the taxpayer shall pay at the time the  331          

tax liability is paid an amount of interest computed at the rate   332          

per annum prescribed by section 5703.47 of the Revised Code on     333          

that liability from the time that payment is due without           334          

extension to the time of actual payment.  In EXCEPT AS PROVIDED    336          

IN SECTION 5747.132 OF THE REVISED CODE, IN addition to all other  338          

interest charges and penalties, all taxes imposed under this                    

chapter or Chapter 5748. of the Revised Code and remaining unpaid  342          

after they become due, except combined amounts due of one dollar   343          

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

section 5703.47 of the Revised Code until paid or until the day    344          

                                                          8      


                                                                 
an assessment is issued under section 5747.13 of the Revised       345          

Code, whichever occurs first.  If                                  346          

      IF the commissioner considers it necessary in order to       349          

ensure the payment of the tax imposed by section 5747.02 of the    350          

Revised Code or any tax imposed under Chapter 5748. of the         351          

Revised Code, the commissioner may require returns and payments    352          

to be made otherwise than as provided in this section.             353          

      (H)  If any report, claim, statement, or other document      355          

required to be filed, or any payment required to be made, within   356          

a prescribed period or on or before a prescribed date under this   357          

chapter is delivered after that period or that date by United      358          

States mail to the agency, officer, or office with which the       359          

report, claim, statement, or other document is required to be      360          

filed, or to which the payment is required to be made, the date    361          

of the postmark stamped on the cover in which the report, claim,   362          

statement, or other document, or payment is mailed shall be        363          

deemed to be the date of delivery or the date of payment.          364          

      If a payment is required to be made by electronic funds      366          

transfer pursuant to section 5747.072 of the Revised Code, the     367          

payment is considered to be made when the payment is received by   368          

the treasurer of state or credited to an account designated by     369          

the treasurer of state for the receipt of tax payments.            370          

      "The date of the postmark" means, in the event there is      373          

more than one date on the cover, the earliest date imprinted on    374          

the cover by the United States postal service.                                  

      (I)  The amounts withheld by the employer pursuant to        376          

section 5747.06 of the Revised Code shall be allowed to the        377          

recipient of the compensation as credits against payment of the    378          

appropriate taxes imposed on the recipient by section 5747.02 and  380          

under Chapter 5748. of the Revised Code.                                        

      (J)  If, in accordance with division (D) of this section, a  384          

pass-through entity elects to file a single return and if any      385          

investor is required to file the return and make the payment of    386          

taxes required by this chapter on account of the investor's other  387          

                                                          9      


                                                                 
income that is not included in a single return filed by a          388          

pass-through entity, the investor is entitled to a refundable      389          

credit equal to the investor's proportionate share of the tax      390          

paid by the pass-through entity on behalf of the investor.  The    391          

investor shall claim the credit for the investor's taxable year    392          

in which or with which ends the taxable year of the pass-through   393          

entity.  Nothing in this chapter shall be construed to allow any   394          

credit provided in this chapter to be claimed more than once.      395          

For the purposes of computing any interest, penalty, or interest   396          

penalty, the investor shall be deemed to have paid the refundable  397          

credit provided by this division on the day that the pass-through  398          

entity paid the estimated tax or the tax giving rise to the        399          

credit.                                                                         

      Sec. 5747.132.  (A)  AS USED IN THIS SECTION:                401          

      (1)  "QUALIFYING TAXPAYER" MEANS A TAXPAYER, EMPLOYER, OR    403          

QUALIFYING ENTITY.                                                 404          

      (2)  "QUALIFYING REFUND OVERPAYMENT" MEANS AN AMOUNT         406          

RECEIVED BY A QUALIFYING TAXPAYER IN EXCESS OF A REFUND OR         407          

REQUEST FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE         408          

QUALIFYING TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT FILED   410          

WITH THE TAX COMMISSIONER.                                                      

      (B)  A QUALIFYING TAXPAYER IS NOT LIABLE FOR ANY INTEREST    413          

OR PENALTY WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND    414          

OVERPAYMENT IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE          415          

OVERPAYMENT TO THE TAX COMMISSIONER NOT LATER THAN THIRTY DAYS     416          

AFTER THE TAXPAYER RECEIVES AN ASSESSMENT FOR IT.  IF THE          417          

TAXPAYER DOES NOT PAY THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE  418          

COMMISSIONER WITHIN THE TIME PRESCRIBED BY THIS SECTION, INTEREST  419          

SHALL ACCRUE ON THE AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION   420          

5747.13 OF THE REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES   422          

THE ASSESSMENT UNTIL THE DEFICIENCY IS PAID.                       423          

      Section 2.  That existing sections 5733.26 and 5747.08 of    425          

the Revised Code are hereby repealed.                              426          

      Section 3.  The amendment or enactment by this act of        428          

                                                          10     


                                                                 
sections 5733.26, 5733.261, 5747.08, and 5747.132 of the Revised   430          

Code shall be applied to prohibit the accrual of interest or       431          

penalty with respect to tax refund overpayment assessments         432          

received by taxpayers after the effective date of this act,        434          

regardless of the time of claim for the refund.                    435