As Reported by the Senate Ways and 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-PETERSON-BUEHRER-GOODMAN-       16           

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

   SUTTON-STAPLETON-HOOPS-THOMAS-WILSON-OGG- SENATOR BLESSING      19           


_________________________________________________________________   21           

                          A   B I L L                                           

             To amend sections 5733.26 and 5747.08 and to enact    23           

                sections 5733.261 and 5747.132 of the Revised      24           

                Code to eliminate the payment of interest by a     25           

                taxpayer on repayment of certain excess refunds    26           

                of state income or corporation franchise  taxes.   28           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        30           

      Section 1.  That sections 5733.26 and 5747.08 be amended     32           

and sections 5733.261 and 5747.132 of the Revised Code be enacted  34           

to read as follows:                                                             

      Sec. 5733.26.  (A)  If EXCEPT AS PROVIDED IN SECTION         43           

5733.261 OF THE REVISED CODE, IF the tax imposed by section        45           

5733.06 of the Revised Code, or any portion of that tax, whether   46           

determined by the tax commissioner or the taxpayer, is not paid    47           

on or before the date prescribed for its payment, interest shall   48           

be assessed, collected, and paid, in the same manner as the tax,   49           

upon such unpaid amount at the rate per annum prescribed by        50           

                                                          2      


                                                                 
section 5703.47 of the Revised Code from the date prescribed for   51           

its payment until it is paid or until the day an assessment is     52           

issued under section 5733.11 of the Revised Code, whichever        53           

occurs first.                                                                   

      (B)  Interest shall be allowed and paid at the rate per      55           

annum prescribed by section 5703.47 of the Revised Code upon       56           

amounts refunded with respect to the tax imposed by section        58           

5733.06 of the Revised Code.  The interest shall run from                       

whichever of the following dates is the latest until the date the  60           

refund is paid:  the date of the illegal, erroneous, or excessive  61           

payment; the ninetieth day after the final date the annual report  62           

under section 5733.02 of the Revised Code was required to be       63           

filed; or the ninetieth day after the date that report was filed.  64           

      If the overpayment results from the carryback of a net       66           

capital loss to a previous taxable year, the overpayment is        67           

deemed not to have been made prior to the filing date, including   68           

any extension thereof, for the taxable year in which the net       69           

capital loss arises.                                               70           

      Sec. 5733.261.  (A)  AS USED IN THIS SECTION, "QUALIFYING    73           

REFUND OVERPAYMENT" MEANS AN AMOUNT RECEIVED BY A TAXPAYER IN      74           

EXCESS OF A REFUND OR REQUEST FOR PAYMENT CLAIMED OR MADE BY OR    75           

ON BEHALF OF THE TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT   76           

FILED WITH THE TAX COMMISSIONER.                                   77           

      (B)  A TAXPAYER IS NOT LIABLE FOR ANY INTEREST OR PENALTY    80           

WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND OVERPAYMENT   81           

IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE   82           

TAX COMMISSIONER NOT LATER THAN THIRTY DAYS AFTER THE TAXPAYER     83           

RECEIVES AN ASSESSMENT FOR IT.  IF THE TAXPAYER DOES NOT PAY THE   84           

ENTIRE AMOUNT OF THE OVERPAYMENT TO THE COMMISSIONER WITHIN THE    85           

TIME PRESCRIBED BY THIS SECTION, INTEREST SHALL ACCRUE ON THE      86           

AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION 5733.11 OF THE        88           

REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES THE ASSESSMENT   89           

UNTIL THE DEFICIENCY IS PAID.                                      90           

      Sec. 5747.08.  An annual return with respect to the tax      99           

                                                          3      


                                                                 
imposed by section 5747.02 of the Revised Code and each tax        100          

imposed under Chapter 5748. of the Revised Code shall be made by   101          

every taxpayer for any taxable year for which the taxpayer is      102          

liable for the tax imposed by that section or under that chapter,  103          

unless the total credits allowed under divisions (E), (F), and     104          

(G) of section 5747.05 of the Revised Code for the year are equal  105          

to or exceed the tax imposed by section 5747.02 of the Revised     106          

Code, in which case no return shall be required unless the         107          

taxpayer is liable for a tax imposed pursuant to Chapter 5748. of  108          

the Revised Code.                                                  109          

      (A)  If an individual is deceased, any return or notice      111          

required of that individual under this chapter shall be made and   112          

filed by that decedent's executor, administrator, or other person  114          

charged with the property of that decedent.                                     

      (B)  If an individual is unable to make a return or notice   116          

required by this chapter, the return or notice required of that    117          

individual shall be made and filed by the individual's duly        118          

authorized agent, guardian, conservator, fiduciary, or other       119          

person charged with the care of the person or property of that     120          

individual.                                                                     

      (C)  Returns or notices required of an estate or a trust     122          

shall be made and filed by the fiduciary of the estate or trust.   123          

      (D)(1)(a)  Except as otherwise provided in division          126          

(D)(1)(b) of this section, any pass-through entity may file a      128          

single return on behalf of one or more of the entity's investors   129          

other than an investor that is a person subject to the tax         131          

imposed under section 5733.06 of the Revised Code.  The single                  

return shall set forth the name, address, and social security      132          

number of each of those pass-through entity investors and shall    135          

indicate the distributive share of each of those pass-through      136          

entity investor's income taxable in this state in accordance with  137          

sections 5747.20 to 5747.231 of the Revised Code.  Such            140          

pass-through entity investors for whom the pass-through entity     141          

elects to file a single return are not entitled to the exemption   142          

                                                          4      


                                                                 
or credit provided for by sections 5747.02 and 5747.022 of the     143          

Revised Code; shall calculate the tax before business credits at   146          

the highest rate of tax set forth in section 5747.02 of the        147          

Revised Code for the taxable year for which the return is filed;   149          

and are entitled to only their distributive share of the business  150          

credits as defined in division (D)(2) of this section.  A single   152          

check drawn by the pass-through entity shall accompany the return  154          

in full payment of the tax due for such investors other than       155          

investors who are persons subject to the tax imposed under         156          

section 5733.06 of the Revised Code.                               157          

      (b)(i)  A pass-through entity shall not include in such a    160          

single return any investor that is a trust to the extent that any  161          

direct or indirect current, future, or contingent beneficiary of   162          

the trust is a person subject to the tax imposed under section     163          

5733.06 of the Revised Code.                                       164          

      (ii)  A pass-through entity shall not include in such a      167          

single return any investor that is itself a pass-through entity    168          

to the extent that any direct or indirect investor in the second   169          

pass-through entity is a person subject to the tax imposed under   170          

section 5733.06 of the Revised Code.                               171          

      (c)  Nothing in division (D) of this section precludes the   175          

tax commissioner from requiring such investors to file the return  176          

and make the payment of taxes and related interest, penalty, and   177          

interest penalty required by this section or section 5747.02,      178          

5747.09, or 5747.15 of the Revised Code.  Nothing in division (D)  180          

of this section shall be construed to provide to such an investor  181          

or pass-through entity any additional deduction or credit, other   182          

than the credit provided by division (J) of this section, solely   184          

on account of the entity's filing a return in accordance with      185          

this section.  Such a pass-through entity also shall make the      186          

filing and payment of estimated taxes on behalf of the             187          

pass-through entity investors other than an investor that is a     189          

person subject to the tax imposed under section 5733.06 of the     190          

Revised Code.                                                                   

                                                          5      


                                                                 
      (2)  For the purposes of this section, "business credits"    193          

means the credits listed in section 5747.98 of the Revised Code    196          

excluding the following credits:                                   197          

      (b)(a)  The retirement credit under division (B) of section  199          

5747.055 of the Revised Code;                                      201          

      (c)(b)  The senior citizen credit under division (C) of      204          

section 5747.05 of the Revised Code;                                            

      (d)(c)  The lump sum distribution credit under division (D)  207          

of section 5747.05 of the Revised Code;                            209          

      (e)(d)  The dependent care credit under section 5747.054 of  212          

the Revised Code;                                                  213          

      (f)(e)  The lump sum retirement income credit under          216          

division (C) of section 5747.055 of the Revised Code;              218          

      (g)(f)  The lump sum retirement income credit under          221          

division (D) of section 5747.055 of the Revised Code;              223          

      (h)(g)  The lump sum retirement income credit under          226          

division (E) of section 5747.055 of the Revised Code;              228          

      (i)(h)  The credit for displaced workers who pay for job     231          

training under section 5747.27 of the Revised Code;                233          

      (j)(i)  The twenty-dollar personal exemption credit under    236          

section 5747.022 of the Revised Code;                              238          

      (k)(j)  The joint filing credit under division (G) of        241          

section 5747.05 of the Revised Code;                               243          

      (l)(k)  The nonresident credit under division (A) of         246          

section 5747.05 of the Revised Code;                               248          

      (m)(l)  The credit for a resident's out-of-state income      251          

under division (B) of section 5747.05 of the Revised Code.         254          

      (3)  The election provided for under division (D) of this    257          

section applies only to the taxable year for which the election    258          

is made by the pass-through entity.  Unless the tax commissioner   259          

provides otherwise, this election, once made, is binding and       260          

irrevocable for the taxable year for which the election is made.   261          

Nothing in this division shall be construed to provide for any     262          

deduction or credit that would not be allowable if a nonresident   263          

                                                          6      


                                                                 
pass-through entity investor were to file an annual return.        264          

      (4)  If a pass-through entity makes the election provided    266          

for under division (D) of this section, the pass-through entity    268          

shall be liable for any additional taxes, interest, interest       269          

penalty, or penalties imposed by this chapter if the tax           271          

commissioner determines that the single return does not reflect    272          

the correct tax due by nonresident pass-through entity investors   273          

covered by that return.  Nothing in this division shall be         274          

construed to limit or alter the liability, if any, imposed on      275          

pass-through entity investors for unpaid or underpaid taxes,       276          

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

pass-through entity's making the election provided for under       277          

division (D) of this section.  For the purposes of division (D)    280          

of this section, "correct tax due" means the tax that would have   281          

been paid by the pass-through entity had the single return been    282          

filed in a manner reflecting and including the findings and        283          

determinations made by the tax commissioner.  Nothing in division  285          

(D) of this section shall be construed to make or hold a           286          

pass-through entity liable for tax attributable to a pass-through  287          

entity investor's income from a source other than the              288          

pass-through entity electing to file the single return.            289          

      (E)  If a husband and wife file a joint federal income tax   291          

return for a taxable year, they shall file a joint return under    292          

this section for that taxable year, and their liabilities are      293          

joint and several, but, if the federal income tax liability of     294          

either spouse is determined on a separate federal income tax       295          

return, they shall file separate returns under this section.       296          

      If either spouse is not required to file a federal income    298          

tax return and either or both are required to file a return        299          

pursuant to this chapter, they may elect to file separate or       300          

joint returns, and, pursuant to that election, their liabilities   301          

are separate or joint and several.  If a husband and wife file     302          

separate returns pursuant to this chapter, each must claim the     303          

taxpayer's own exemption, but not both, as authorized under        304          

                                                          7      


                                                                 
section 5747.02 of the Revised Code on the taxpayer's own return.  307          

      (F)  Each return or notice required to be filed under this   309          

section shall contain the signature of the taxpayer or the         311          

taxpayer's duly authorized agent and of the person who prepared    312          

the return for the taxpayer, and shall include the taxpayer's      313          

social security number.  Each return shall be verified by a        314          

declaration under the penalties of perjury.  The tax commissioner  315          

shall prescribe the form that the signature and declaration shall  316          

take.                                                                           

      (G)  Each return or notice required to be filed under this   318          

section shall be made and filed as required by section 5747.04 of  319          

the Revised Code, on or before the fifteenth day of April of each  320          

year, on forms that the tax commissioner shall prescribe,          321          

together with remittance made payable to the treasurer of state    322          

in the combined amount of the state and all school district        323          

income taxes shown to be due on the form, unless the combined      324          

amount shown to be due is one dollar or less, in which case that   325          

amount need not be remitted.                                       326          

      Upon good cause shown, the commissioner may extend the       328          

period for filing any notice or return required to be filed under  329          

this section and may adopt rules relating to extensions.  If the   330          

extension results in an extension of time for the payment of any   331          

state or school district income tax liability with respect to      332          

which the return is filed, the taxpayer shall pay at the time the  333          

tax liability is paid an amount of interest computed at the rate   334          

per annum prescribed by section 5703.47 of the Revised Code on     335          

that liability from the time that payment is due without           336          

extension to the time of actual payment.  In EXCEPT AS PROVIDED    338          

IN SECTION 5747.132 OF THE REVISED CODE, IN addition to all other  340          

interest charges and penalties, all taxes imposed under this                    

chapter or Chapter 5748. of the Revised Code and remaining unpaid  344          

after they become due, except combined amounts due of one dollar   345          

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

section 5703.47 of the Revised Code until paid or until the day    346          

                                                          8      


                                                                 
an assessment is issued under section 5747.13 of the Revised       347          

Code, whichever occurs first.  If                                  348          

      IF the commissioner considers it necessary in order to       351          

ensure the payment of the tax imposed by section 5747.02 of the    352          

Revised Code or any tax imposed under Chapter 5748. of the         353          

Revised Code, the commissioner may require returns and payments    354          

to be made otherwise than as provided in this section.             355          

      (H)  If any report, claim, statement, or other document      357          

required to be filed, or any payment required to be made, within   358          

a prescribed period or on or before a prescribed date under this   359          

chapter is delivered after that period or that date by United      360          

States mail to the agency, officer, or office with which the       361          

report, claim, statement, or other document is required to be      362          

filed, or to which the payment is required to be made, the date    363          

of the postmark stamped on the cover in which the report, claim,   364          

statement, or other document, or payment is mailed shall be        365          

deemed to be the date of delivery or the date of payment.          366          

      If a payment is required to be made by electronic funds      368          

transfer pursuant to section 5747.072 of the Revised Code, the     369          

payment is considered to be made when the payment is received by   370          

the treasurer of state or credited to an account designated by     371          

the treasurer of state for the receipt of tax payments.            372          

      "The date of the postmark" means, in the event there is      375          

more than one date on the cover, the earliest date imprinted on    376          

the cover by the United States postal service.                                  

      (I)  The amounts withheld by the employer pursuant to        378          

section 5747.06 of the Revised Code shall be allowed to the        379          

recipient of the compensation as credits against payment of the    380          

appropriate taxes imposed on the recipient by section 5747.02 and  382          

under Chapter 5748. of the Revised Code.                                        

      (J)  If, in accordance with division (D) of this section, a  386          

pass-through entity elects to file a single return and if any      387          

investor is required to file the return and make the payment of    388          

taxes required by this chapter on account of the investor's other  389          

                                                          9      


                                                                 
income that is not included in a single return filed by a          390          

pass-through entity, the investor is entitled to a refundable      391          

credit equal to the investor's proportionate share of the tax      392          

paid by the pass-through entity on behalf of the investor.  The    393          

investor shall claim the credit for the investor's taxable year    394          

in which or with which ends the taxable year of the pass-through   395          

entity.  Nothing in this chapter shall be construed to allow any   396          

credit provided in this chapter to be claimed more than once.      397          

For the purposes of computing any interest, penalty, or interest   398          

penalty, the investor shall be deemed to have paid the refundable  399          

credit provided by this division on the day that the pass-through  400          

entity paid the estimated tax or the tax giving rise to the        401          

credit.                                                                         

      Sec. 5747.132.  (A)  AS USED IN THIS SECTION:                403          

      (1)  "QUALIFYING TAXPAYER" MEANS A TAXPAYER, EMPLOYER, OR    405          

QUALIFYING ENTITY.                                                 406          

      (2)  "QUALIFYING REFUND OVERPAYMENT" MEANS AN AMOUNT         408          

RECEIVED BY A QUALIFYING TAXPAYER IN EXCESS OF A REFUND OR         409          

REQUEST FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE         410          

QUALIFYING TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT FILED   412          

WITH THE TAX COMMISSIONER.                                                      

      (B)  A QUALIFYING TAXPAYER IS NOT LIABLE FOR ANY INTEREST    415          

OR PENALTY WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND    416          

OVERPAYMENT IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE          417          

OVERPAYMENT TO THE TAX COMMISSIONER NOT LATER THAN THIRTY DAYS     418          

AFTER THE TAXPAYER RECEIVES AN ASSESSMENT FOR IT.  IF THE          419          

TAXPAYER DOES NOT PAY THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE  420          

COMMISSIONER WITHIN THE TIME PRESCRIBED BY THIS SECTION, INTEREST  421          

SHALL ACCRUE ON THE AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION   422          

5747.13 OF THE REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES   424          

THE ASSESSMENT UNTIL THE DEFICIENCY IS PAID.                       425          

      Section 2.  That existing sections 5733.26 and 5747.08 of    427          

the Revised Code are hereby repealed.                              428          

      Section 3.  The amendment or enactment by this act of        430          

                                                          10     


                                                                 
sections 5733.26, 5733.261, 5747.08, and 5747.132 of the Revised   432          

Code shall be applied to prohibit the accrual of interest or       433          

penalty with respect to tax refund overpayment assessments         434          

received by taxpayers after the effective date of this act,        436          

regardless of the time of claim for the refund.                    437