As Passed by the Senate                       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-              19           

     SENATORS BLESSING-BRADY-WATTS-PRENTISS-ESPY-OELSLAGER-                     

            WACHTMANN-NEIN-JOHNSON-RAY-SPADA-DiDONATO              20           


_________________________________________________________________   22           

                          A   B I L L                                           

             To amend sections 5733.26 and 5747.08 and to enact    24           

                sections 5733.261 and 5747.132 of the Revised      25           

                Code to eliminate the payment of interest by a     26           

                taxpayer on repayment of certain excess refunds    27           

                of state income or corporation franchise  taxes.   29           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        31           

      Section 1.  That sections 5733.26 and 5747.08 be amended     33           

and sections 5733.261 and 5747.132 of the Revised Code be enacted  35           

to read as follows:                                                             

      Sec. 5733.26.  (A)  If EXCEPT AS PROVIDED IN SECTION         44           

5733.261 OF THE REVISED CODE, IF the tax imposed by section        46           

5733.06 of the Revised Code, or any portion of that tax, whether   47           

determined by the tax commissioner or the taxpayer, is not paid    48           

on or before the date prescribed for its payment, interest shall   49           

                                                          2      


                                                                 
be assessed, collected, and paid, in the same manner as the tax,   50           

upon such unpaid amount at the rate per annum prescribed by        51           

section 5703.47 of the Revised Code from the date prescribed for   52           

its payment until it is paid or until the day an assessment is     53           

issued under section 5733.11 of the Revised Code, whichever        54           

occurs first.                                                                   

      (B)  Interest shall be allowed and paid at the rate per      56           

annum prescribed by section 5703.47 of the Revised Code upon       57           

amounts refunded with respect to the tax imposed by section        59           

5733.06 of the Revised Code.  The interest shall run from                       

whichever of the following dates is the latest until the date the  61           

refund is paid:  the date of the illegal, erroneous, or excessive  62           

payment; the ninetieth day after the final date the annual report  63           

under section 5733.02 of the Revised Code was required to be       64           

filed; or the ninetieth day after the date that report was filed.  65           

      If the overpayment results from the carryback of a net       67           

capital loss to a previous taxable year, the overpayment is        68           

deemed not to have been made prior to the filing date, including   69           

any extension thereof, for the taxable year in which the net       70           

capital loss arises.                                               71           

      Sec. 5733.261.  (A)  AS USED IN THIS SECTION, "QUALIFYING    74           

REFUND OVERPAYMENT" MEANS AN AMOUNT RECEIVED BY A TAXPAYER IN      75           

EXCESS OF A REFUND OR REQUEST FOR PAYMENT CLAIMED OR MADE BY OR    76           

ON BEHALF OF THE TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT   77           

FILED WITH THE TAX COMMISSIONER.                                   78           

      (B)  A TAXPAYER IS NOT LIABLE FOR ANY INTEREST OR PENALTY    81           

WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND OVERPAYMENT   82           

IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE   83           

TAX COMMISSIONER NOT LATER THAN THIRTY DAYS AFTER THE TAXPAYER     84           

RECEIVES AN ASSESSMENT FOR IT.  IF THE TAXPAYER DOES NOT PAY THE   85           

ENTIRE AMOUNT OF THE OVERPAYMENT TO THE COMMISSIONER WITHIN THE    86           

TIME PRESCRIBED BY THIS SECTION, INTEREST SHALL ACCRUE ON THE      87           

AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION 5733.11 OF THE        89           

REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES THE ASSESSMENT   90           

                                                          3      


                                                                 
UNTIL THE DEFICIENCY IS PAID.                                      91           

      Sec. 5747.08.  An annual return with respect to the tax      100          

imposed by section 5747.02 of the Revised Code and each tax        101          

imposed under Chapter 5748. of the Revised Code shall be made by   102          

every taxpayer for any taxable year for which the taxpayer is      103          

liable for the tax imposed by that section or under that chapter,  104          

unless the total credits allowed under divisions (E), (F), and     105          

(G) of section 5747.05 of the Revised Code for the year are equal  106          

to or exceed the tax imposed by section 5747.02 of the Revised     107          

Code, in which case no return shall be required unless the         108          

taxpayer is liable for a tax imposed pursuant to Chapter 5748. of  109          

the Revised Code.                                                  110          

      (A)  If an individual is deceased, any return or notice      112          

required of that individual under this chapter shall be made and   113          

filed by that decedent's executor, administrator, or other person  115          

charged with the property of that decedent.                                     

      (B)  If an individual is unable to make a return or notice   117          

required by this chapter, the return or notice required of that    118          

individual shall be made and filed by the individual's duly        119          

authorized agent, guardian, conservator, fiduciary, or other       120          

person charged with the care of the person or property of that     121          

individual.                                                                     

      (C)  Returns or notices required of an estate or a trust     123          

shall be made and filed by the fiduciary of the estate or trust.   124          

      (D)(1)(a)  Except as otherwise provided in division          127          

(D)(1)(b) of this section, any pass-through entity may file a      129          

single return on behalf of one or more of the entity's investors   130          

other than an investor that is a person subject to the tax         132          

imposed under section 5733.06 of the Revised Code.  The single                  

return shall set forth the name, address, and social security      133          

number of each of those pass-through entity investors and shall    136          

indicate the distributive share of each of those pass-through      137          

entity investor's income taxable in this state in accordance with  138          

sections 5747.20 to 5747.231 of the Revised Code.  Such            141          

                                                          4      


                                                                 
pass-through entity investors for whom the pass-through entity     142          

elects to file a single return are not entitled to the exemption   143          

or credit provided for by sections 5747.02 and 5747.022 of the     144          

Revised Code; shall calculate the tax before business credits at   147          

the highest rate of tax set forth in section 5747.02 of the        148          

Revised Code for the taxable year for which the return is filed;   150          

and are entitled to only their distributive share of the business  151          

credits as defined in division (D)(2) of this section.  A single   153          

check drawn by the pass-through entity shall accompany the return  155          

in full payment of the tax due for such investors other than       156          

investors who are persons subject to the tax imposed under         157          

section 5733.06 of the Revised Code.                               158          

      (b)(i)  A pass-through entity shall not include in such a    161          

single return any investor that is a trust to the extent that any  162          

direct or indirect current, future, or contingent beneficiary of   163          

the trust is a person subject to the tax imposed under section     164          

5733.06 of the Revised Code.                                       165          

      (ii)  A pass-through entity shall not include in such a      168          

single return any investor that is itself a pass-through entity    169          

to the extent that any direct or indirect investor in the second   170          

pass-through entity is a person subject to the tax imposed under   171          

section 5733.06 of the Revised Code.                               172          

      (c)  Nothing in division (D) of this section precludes the   176          

tax commissioner from requiring such investors to file the return  177          

and make the payment of taxes and related interest, penalty, and   178          

interest penalty required by this section or section 5747.02,      179          

5747.09, or 5747.15 of the Revised Code.  Nothing in division (D)  181          

of this section shall be construed to provide to such an investor  182          

or pass-through entity any additional deduction or credit, other   183          

than the credit provided by division (J) of this section, solely   185          

on account of the entity's filing a return in accordance with      186          

this section.  Such a pass-through entity also shall make the      187          

filing and payment of estimated taxes on behalf of the             188          

pass-through entity investors other than an investor that is a     190          

                                                          5      


                                                                 
person subject to the tax imposed under section 5733.06 of the     191          

Revised Code.                                                                   

      (2)  For the purposes of this section, "business credits"    194          

means the credits listed in section 5747.98 of the Revised Code    197          

excluding the following credits:                                   198          

      (b)(a)  The retirement credit under division (B) of section  200          

5747.055 of the Revised Code;                                      202          

      (c)(b)  The senior citizen credit under division (C) of      205          

section 5747.05 of the Revised Code;                                            

      (d)(c)  The lump sum distribution credit under division (D)  208          

of section 5747.05 of the Revised Code;                            210          

      (e)(d)  The dependent care credit under section 5747.054 of  213          

the Revised Code;                                                  214          

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

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

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

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

      (h)(g)  The lump sum retirement income credit under          227          

division (E) of section 5747.055 of the Revised Code;              229          

      (i)(h)  The credit for displaced workers who pay for job     232          

training under section 5747.27 of the Revised Code;                234          

      (j)(i)  The twenty-dollar personal exemption credit under    237          

section 5747.022 of the Revised Code;                              239          

      (k)(j)  The joint filing credit under division (G) of        242          

section 5747.05 of the Revised Code;                               244          

      (l)(k)  The nonresident credit under division (A) of         247          

section 5747.05 of the Revised Code;                               249          

      (m)(l)  The credit for a resident's out-of-state income      252          

under division (B) of section 5747.05 of the Revised Code.         255          

      (3)  The election provided for under division (D) of this    258          

section applies only to the taxable year for which the election    259          

is made by the pass-through entity.  Unless the tax commissioner   260          

provides otherwise, this election, once made, is binding and       261          

irrevocable for the taxable year for which the election is made.   262          

                                                          6      


                                                                 
Nothing in this division shall be construed to provide for any     263          

deduction or credit that would not be allowable if a nonresident   264          

pass-through entity investor were to file an annual return.        265          

      (4)  If a pass-through entity makes the election provided    267          

for under division (D) of this section, the pass-through entity    269          

shall be liable for any additional taxes, interest, interest       270          

penalty, or penalties imposed by this chapter if the tax           272          

commissioner determines that the single return does not reflect    273          

the correct tax due by nonresident pass-through entity investors   274          

covered by that return.  Nothing in this division shall be         275          

construed to limit or alter the liability, if any, imposed on      276          

pass-through entity investors for unpaid or underpaid taxes,       277          

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

pass-through entity's making the election provided for under       278          

division (D) of this section.  For the purposes of division (D)    281          

of this section, "correct tax due" means the tax that would have   282          

been paid by the pass-through entity had the single return been    283          

filed in a manner reflecting and including the findings and        284          

determinations made by the tax commissioner.  Nothing in division  286          

(D) of this section shall be construed to make or hold a           287          

pass-through entity liable for tax attributable to a pass-through  288          

entity investor's income from a source other than the              289          

pass-through entity electing to file the single return.            290          

      (E)  If a husband and wife file a joint federal income tax   292          

return for a taxable year, they shall file a joint return under    293          

this section for that taxable year, and their liabilities are      294          

joint and several, but, if the federal income tax liability of     295          

either spouse is determined on a separate federal income tax       296          

return, they shall file separate returns under this section.       297          

      If either spouse is not required to file a federal income    299          

tax return and either or both are required to file a return        300          

pursuant to this chapter, they may elect to file separate or       301          

joint returns, and, pursuant to that election, their liabilities   302          

are separate or joint and several.  If a husband and wife file     303          

                                                          7      


                                                                 
separate returns pursuant to this chapter, each must claim the     304          

taxpayer's own exemption, but not both, as authorized under        305          

section 5747.02 of the Revised Code on the taxpayer's own return.  308          

      (F)  Each return or notice required to be filed under this   310          

section shall contain the signature of the taxpayer or the         312          

taxpayer's duly authorized agent and of the person who prepared    313          

the return for the taxpayer, and shall include the taxpayer's      314          

social security number.  Each return shall be verified by a        315          

declaration under the penalties of perjury.  The tax commissioner  316          

shall prescribe the form that the signature and declaration shall  317          

take.                                                                           

      (G)  Each return or notice required to be filed under this   319          

section shall be made and filed as required by section 5747.04 of  320          

the Revised Code, on or before the fifteenth day of April of each  321          

year, on forms that the tax commissioner shall prescribe,          322          

together with remittance made payable to the treasurer of state    323          

in the combined amount of the state and all school district        324          

income taxes shown to be due on the form, unless the combined      325          

amount shown to be due is one dollar or less, in which case that   326          

amount need not be remitted.                                       327          

      Upon good cause shown, the commissioner may extend the       329          

period for filing any notice or return required to be filed under  330          

this section and may adopt rules relating to extensions.  If the   331          

extension results in an extension of time for the payment of any   332          

state or school district income tax liability with respect to      333          

which the return is filed, the taxpayer shall pay at the time the  334          

tax liability is paid an amount of interest computed at the rate   335          

per annum prescribed by section 5703.47 of the Revised Code on     336          

that liability from the time that payment is due without           337          

extension to the time of actual payment.  In EXCEPT AS PROVIDED    339          

IN SECTION 5747.132 OF THE REVISED CODE, IN addition to all other  341          

interest charges and penalties, all taxes imposed under this                    

chapter or Chapter 5748. of the Revised Code and remaining unpaid  345          

after they become due, except combined amounts due of one dollar   346          

                                                          8      


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

section 5703.47 of the Revised Code until paid or until the day    347          

an assessment is issued under section 5747.13 of the Revised       348          

Code, whichever occurs first.  If                                  349          

      IF the commissioner considers it necessary in order to       352          

ensure the payment of the tax imposed by section 5747.02 of the    353          

Revised Code or any tax imposed under Chapter 5748. of the         354          

Revised Code, the commissioner may require returns and payments    355          

to be made otherwise than as provided in this section.             356          

      (H)  If any report, claim, statement, or other document      358          

required to be filed, or any payment required to be made, within   359          

a prescribed period or on or before a prescribed date under this   360          

chapter is delivered after that period or that date by United      361          

States mail to the agency, officer, or office with which the       362          

report, claim, statement, or other document is required to be      363          

filed, or to which the payment is required to be made, the date    364          

of the postmark stamped on the cover in which the report, claim,   365          

statement, or other document, or payment is mailed shall be        366          

deemed to be the date of delivery or the date of payment.          367          

      If a payment is required to be made by electronic funds      369          

transfer pursuant to section 5747.072 of the Revised Code, the     370          

payment is considered to be made when the payment is received by   371          

the treasurer of state or credited to an account designated by     372          

the treasurer of state for the receipt of tax payments.            373          

      "The date of the postmark" means, in the event there is      376          

more than one date on the cover, the earliest date imprinted on    377          

the cover by the United States postal service.                                  

      (I)  The amounts withheld by the employer pursuant to        379          

section 5747.06 of the Revised Code shall be allowed to the        380          

recipient of the compensation as credits against payment of the    381          

appropriate taxes imposed on the recipient by section 5747.02 and  383          

under Chapter 5748. of the Revised Code.                                        

      (J)  If, in accordance with division (D) of this section, a  387          

pass-through entity elects to file a single return and if any      388          

                                                          9      


                                                                 
investor is required to file the return and make the payment of    389          

taxes required by this chapter on account of the investor's other  390          

income that is not included in a single return filed by a          391          

pass-through entity, the investor is entitled to a refundable      392          

credit equal to the investor's proportionate share of the tax      393          

paid by the pass-through entity on behalf of the investor.  The    394          

investor shall claim the credit for the investor's taxable year    395          

in which or with which ends the taxable year of the pass-through   396          

entity.  Nothing in this chapter shall be construed to allow any   397          

credit provided in this chapter to be claimed more than once.      398          

For the purposes of computing any interest, penalty, or interest   399          

penalty, the investor shall be deemed to have paid the refundable  400          

credit provided by this division on the day that the pass-through  401          

entity paid the estimated tax or the tax giving rise to the        402          

credit.                                                                         

      Sec. 5747.132.  (A)  AS USED IN THIS SECTION:                404          

      (1)  "QUALIFYING TAXPAYER" MEANS A TAXPAYER, EMPLOYER, OR    406          

QUALIFYING ENTITY.                                                 407          

      (2)  "QUALIFYING REFUND OVERPAYMENT" MEANS AN AMOUNT         409          

RECEIVED BY A QUALIFYING TAXPAYER IN EXCESS OF A REFUND OR         410          

REQUEST FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE         411          

QUALIFYING TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT FILED   413          

WITH THE TAX COMMISSIONER.                                                      

      (B)  A QUALIFYING TAXPAYER IS NOT LIABLE FOR ANY INTEREST    416          

OR PENALTY WITH RESPECT TO THE REPAYMENT OF A QUALIFYING REFUND    417          

OVERPAYMENT IF THE TAXPAYER PAYS THE ENTIRE AMOUNT OF THE          418          

OVERPAYMENT TO THE TAX COMMISSIONER NOT LATER THAN THIRTY DAYS     419          

AFTER THE TAXPAYER RECEIVES AN ASSESSMENT FOR IT.  IF THE          420          

TAXPAYER DOES NOT PAY THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE  421          

COMMISSIONER WITHIN THE TIME PRESCRIBED BY THIS SECTION, INTEREST  422          

SHALL ACCRUE ON THE AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION   423          

5747.13 OF THE REVISED CODE FROM THE DAY THE COMMISSIONER ISSUES   425          

THE ASSESSMENT UNTIL THE DEFICIENCY IS PAID.                       426          

      Section 2.  That existing sections 5733.26 and 5747.08 of    428          

                                                          10     


                                                                 
the Revised Code are hereby repealed.                              429          

      Section 3.  The amendment or enactment by this act of        431          

sections 5733.26, 5733.261, 5747.08, and 5747.132 of the Revised   433          

Code shall be applied to prohibit the accrual of interest or       434          

penalty with respect to tax refund overpayment assessments         435          

received by taxpayers after the effective date of this act,        437          

regardless of the time of claim for the refund.                    438