To amend sections 323.152, 2935.01, 3317.026, 3734.905, 3734.907, 3769.088, 3924.66, 4305.131, 4307.05, 4307.07, 4503.065, 5117.071, 5703.05, 5703.21, 5703.37, 5703.51, 5711.31, 5715.49, 5715.50, 5717.02, 5727.26, 5727.28, 5727.39, 5727.47, 5727.471, 5727.89, 5727.91, 5727.93, 5728.01, 5728.02, 5728.03, 5728.04, 5728.06, 5728.061, 5728.07, 5728.08, 5728.09, 5728.10, 5728.11, 5728.13, 5733.021, 5733.04, 5733.05, 5733.11, 5733.12, 5733.28, 5735.06, 5735.11, 5735.12, 5735.122, 5735.13, 5735.14, 5735.141, 5735.142, 5735.18, 5735.311, 5739.01, 5739.011, 5739.02, 5739.026, 5739.031, 5739.033, 5739.05, 5739.104, 5739.13, 5739.17, 5739.31, 5739.99, 5741.01, 5741.13, 5743.05, 5743.081, 5743.53, 5743.56, 5745.11, 5745.12, 5747.025, 5747.06, 5747.08, 5747.13, 5749.07, and 5749.08; to amend, for the purpose of adopting a new section number as indicated in parentheses, section 5735.311 (5728.05); to enact new sections 5739.07 and 5741.10 and sections 5703.60 and 5703.70; and to repeal sections 5728.05, 5735.31, 5739.07, 5741.10, and 5747.181 of the Revised Code to amend the procedures for determining the amounts of, and hearing challenges to, various tax assessments and refunds, to alter the method of adjusting eligibility criteria for the homestead exemption, energy subsidies, the credit for installation of emergency telephone systems, the personal exemption, and the deduction for medical savings accounts, to authorize the release by public officials of certain information relating to vendors, to increase the loss carryover period for corporations, to change record-keeping requirements for certain taxpayers, to conform state law to federal law with regard to taxation of mobile telecommunications service, to increase protection of tax department employees from assault, and to make other changes relating to the administration of the tax laws by the Department of Taxation; and to amend the versions of sections 5733.021 and 5733.12 of the Revised Code that are scheduled to take effect July 1, 2002, and the versions of sections 5727.26, 5728.08, and 5735.06 of the Revised Code that are scheduled to take effect January 1, 2003, to continue the provisions of this act on and after those dates.
SECTION 1. That sections 323.152, 2935.01, 3317.026, 3734.905, 3734.907, 3769.088, 3924.66, 4305.131, 4307.05, 4307.07, 4503.065, 5117.071, 5703.05, 5703.21, 5703.37, 5703.51, 5711.31, 5715.49, 5715.50, 5717.02, 5727.26, 5727.28, 5727.39, 5727.47, 5727.471, 5727.89, 5727.91, 5727.93, 5728.01, 5728.02, 5728.03, 5728.04, 5728.06, 5728.061, 5728.07, 5728.08, 5728.09, 5728.10, 5728.11, 5728.13, 5733.021, 5733.04, 5733.05, 5733.11, 5733.12, 5733.28, 5735.06, 5735.11, 5735.12, 5735.122, 5735.13, 5735.14, 5735.141, 5735.142, 5735.18, 5735.311, 5739.01, 5739.011, 5739.02, 5739.026, 5739.031, 5739.033, 5739.05, 5739.104, 5739.13, 5739.17, 5739.31, 5739.99, 5741.01, 5741.13, 5743.05, 5743.081, 5743.53, 5743.56, 5745.11, 5745.12, 5747.025, 5747.06, 5747.08, 5747.13, 5749.07, and 5749.08 be amended; that section 5735.311 (5728.05) be amended for the purpose of adopting a new section number as indicated in parentheses; and that new sections 5739.07 and 5741.10 and sections 5703.60 and 5703.70 of the Revised Code be enacted to read as follows:
Sec. 323.152. In addition to the reduction in taxes required under section 319.302 of the Revised Code, taxes shall be reduced as provided in divisions (A) and (B) of this section.
(A)(1) Division (A) of this section applies to any of the following:
(a) A person who is permanently and totally disabled;
(b) A person who is sixty-five years of age or older;
(c) A person who is the surviving spouse of a deceased person who was permanently and totally disabled or sixty-five years of age or older and who applied and qualified for a reduction in taxes under this division in the year of death, provided the surviving spouse is at least fifty-nine but not sixty-five or more years of age on the date the deceased spouse dies.
(2) Real property taxes on a homestead owned and occupied, or a homestead in a housing cooperative occupied, by a person to whom division (A) of this section applies shall be reduced for each year for which the owner obtains a certificate of reduction from the county auditor under section 323.154 of the Revised Code or for which the occupant obtains a certificate of reduction in accordance with section 323.159 of the Revised Code. The reduction shall equal the amount obtained by multiplying the tax rate for the tax year for which the certificate is issued by the reduction in taxable value shown in the following schedule:
Reduce Taxable Value | ||
Total Income | by the Lesser of: |
$11,900 or less | $5,000 or seventy-five per cent | |
More than $11,900 but not more than $17,500 | $3,000 or sixty per cent | |
More than $17,500 but not more than $23,000 | $1,000 or twenty-five per cent | |
More than $23,000 | -0- |
(3) Each calendar year
beginning in
1999, the tax
commissioner shall adjust the foregoing schedule
by completing the
following
steps
calculations in September of each year:
(a) Determine the percentage increase in the gross
domestic
product deflator determined by the bureau of economic
analysis of
the United
States department of commerce
from the first day of
July
January of
the preceding calendar year to the last day of
June
December of the
current
preceding calendar
year;
(b) Multiply that percentage increase by each of the total income amounts, and by each dollar amount by which taxable value is reduced, for the current tax year;
(c) Add the resulting product to each of the total income amounts, and to each of the dollar amounts by which taxable value is reduced, for the current tax year;
(d) Round the resulting sum to the nearest multiple of one hundred dollars.
The commissioner shall certify the amounts resulting from the adjustment to each county auditor not later than the first day of December each year. The certified amounts apply to the following tax year. The commissioner shall not make the adjustment in any calendar year in which the amounts resulting from the adjustment would be less than the total income amounts, or less than the dollar amounts by which taxable value is reduced, for the current tax year.
(B) Real property taxes on any homestead, and manufactured home taxes on any manufactured or mobile home on which a manufactured home tax is assessed pursuant to division (D)(2) of section 4503.06 of the Revised Code, shall be reduced for each year for which the owner obtains a certificate of reduction from the county auditor under section 323.154 of the Revised Code. The amount of the reduction shall equal one-fourth of the amount by which the taxes charged and payable on the homestead or the manufactured or mobile home are reduced for such year under section 319.302 of the Revised Code.
(C) The reductions granted by this section do not apply to special assessments or respread of assessments levied against the homestead, and if there is a transfer of ownership subsequent to the filing of an application for a reduction in taxes, such reductions are not forfeited for such year by virtue of such transfer.
(D) The reductions in taxable value referred to in this
section
shall be applied solely as a factor for the purpose of
computing
the reduction of taxes under this section and shall not
affect
the total value of property in any subdivision or taxing
district
as listed and assessed for taxation on the tax lists and
duplicates, or any direct or indirect limitations on indebtedness
of a subdivision or taxing district. If after application of
sections 5705.31 and 5705.32 of the Revised Code, including the
allocation of all levies within the ten-mill limitation to debt
charges to the extent therein provided, there would be
insufficient funds for payment of debt charges not provided for
by
levies in excess of the ten-mill limitation, the reduction of
taxes provided for in sections 323.151 to 323.159 of
the Revised
Code, shall be proportionately adjusted to the extent necessary
to
provide such funds from levies within the ten-mill limitation.
(E) No reduction shall be made on the taxes due on the homestead of any person convicted of violating division (C) or (D) of section 323.153 of the Revised Code for a period of three years following the conviction.
Sec. 2935.01. As used in this chapter:
(A) "Magistrate" has the same meaning as in section 2931.01 of the Revised Code.
(B) "Peace officer" includes, except as provided in section 2935.081 of the Revised Code, a sheriff; deputy sheriff; marshal; deputy marshal; member of the organized police department of any municipal corporation, including a member of the organized police department of a municipal corporation in an adjoining state serving in Ohio under a contract pursuant to section 737.04 of the Revised Code; member of a police force employed by a metropolitan housing authority under division (D) of section 3735.31 of the Revised Code; member of a police force employed by a regional transit authority under division (Y) of section 306.05 of the Revised Code; state university law enforcement officer appointed under section 3345.04 of the Revised Code; enforcement agent of the department of public safety designated under section 5502.14 of the Revised Code; employee of the department of taxation to whom investigation powers have been delegated under section 5743.45 of the Revised Code; employee of the department of natural resources who is a natural resources law enforcement staff officer designated pursuant to section 1501.013 of the Revised Code, a forest officer designated pursuant to section 1503.29 of the Revised Code, a preserve officer designated pursuant to section 1517.10 of the Revised Code, a wildlife officer designated pursuant to section 1531.13 of the Revised Code, a park officer designated pursuant to section 1541.10 of the Revised Code, or a state watercraft officer designated pursuant to section 1547.521 of the Revised Code; individual designated to perform law enforcement duties under section 511.232, 1545.13, or 6101.75 of the Revised Code; Ohio veterans' home police officer appointed under section 5907.02 of the Revised Code; special police officer employed by a port authority under section 4582.04 or 4582.28 of the Revised Code; police constable of any township; police officer of a township or joint township police district; the house sergeant at arms if the house sergeant at arms has arrest authority pursuant to division (E)(1) of section 101.311 of the Revised Code; and an assistant house sergeant at arms; and, for the purpose of arrests within those areas, and for the purposes of Chapter 5503. of the Revised Code, and the filing of and service of process relating to those offenses witnessed or investigated by them, includes the superintendent and troopers of the state highway patrol.
(C) "Prosecutor" includes the county prosecuting attorney and any assistant prosecutor designated to assist the county prosecuting attorney, and, in the case of courts inferior to courts of common pleas, includes the village solicitor, city director of law, or similar chief legal officer of a municipal corporation, any such officer's assistants, or any attorney designated by the prosecuting attorney of the county to appear for the prosecution of a given case.
(D) "Offense," except where the context specifically indicates otherwise, includes felonies, misdemeanors, and violations of ordinances of municipal corporations and other public bodies authorized by law to adopt penal regulations.
Sec. 3317.026. (A) As used in this section, "refunded taxes" means taxes charged and payable from real and tangible personal property, including public utility property, that have been found to have been overpaid as the result of reductions in the taxable value of such property and that have been refunded, including any interest or penalty refunded with those taxes. If taxes are refunded over a period of time pursuant to division (B)(2), (3), or (4) of section 319.36 or division (C) of section 5727.471 of the Revised Code, the total amount of taxes required to be refunded, excluding any interest accruing after the day the undertaking is entered into, shall be considered to have been refunded on the day the first portion of the overpayment is paid or credited.
(B) Not later than the last day of February each year, each county auditor shall certify to the tax commissioner, for each school district in the county, the amount of refunded taxes refunded in the preceding calendar year and the reductions in taxable value that resulted in those refunds, except for reductions in taxable value that previously have been reported to the tax commissioner on an abstract. If the tax commissioner determines that the amount of refunded taxes certified for a school district exceeds three per cent of the total taxes charged and payable for current expenses of the school district for the calendar year in which those taxes were refunded, the tax commissioner shall certify the reductions in taxable value that resulted in those refunds on or before the first day of June to the department of education. Upon receiving the certification by the tax commissioner, the department of education shall reduce the total taxable value of the school district, as defined in section 3317.02 of the Revised Code, by the total amount of the reductions in taxable value that resulted in those refunds for the purpose of computing the state aid for the school district for the current fiscal year under section 3317.022 of the Revised Code. The increase in the amount of such aid resulting from the adjustment required by this section shall be paid to the school district on or before the thirtieth day of June of the current year.
(C) If an adjustment is
made under this
section
division in
the
amount of state aid paid to a
school district, the tax value
reductions from which that
adjustment results shall not be used in
recomputing aid to a
school district under section 3317.027 of the
Revised Code.
(C) Not later than the first day of June each year, the tax commissioner shall certify to the department of education for each school district the total of the increases in taxable value above the amount of taxable value on which tax was paid, as provided in division (B)(1) or (2) of section 5727.47 of the Revised Code, as determined by the commissioner, and for which a notification was sent pursuant to section 5727.471 of the Revised Code, in the preceding calendar year. Upon receiving the certification, the department shall increase the total taxable value, as defined in section 3317.02 of the Revised Code, of the school district by the total amount of the increase in taxable value certified by the commissioner for the school district for the purpose of computing the school district's state aid for the following fiscal year under sections 3317.022 and 3317.0212 of the Revised Code.
Sec. 3734.905. (A) The treasurer of state shall refund
the
fee imposed by section 3734.901 of the Revised Code paid
illegally
or erroneously, or paid on an illegal or erroneous
assessment.
Applications for refund shall be filed with the tax
commissioner
on a form prescribed by
him
the commissioner,
within four years of
the illegal or erroneous payment of the fee.
Upon
On the filing of
the application, the commissioner shall
determine the amount of
refund
due and
to which the applicant is
entitled. If the amount is not less than that claimed, the
commissioner shall certify
that
the amount to the director of
budget
and
management and treasurer of state for payment from the
tax
refund
fund created by section 5703.052 of the Revised Code.
If
the amount is less than that claimed, the
commissioner shall
proceed in accordance with section 5703.70 of
the Revised Code.
If the
application for refund is for fees paid on an illegal
or
erroneous
assessment, the certified amount shall include
interest
calculated
at the rate per annum
pursuant to
prescribed
by section 5703.47 of
the Revised
Code from the date of
overpayment to the date of the
commissioner's certification.
(B) When the fee imposed pursuant to section 3734.901 of
the
Revised Code has been paid on tires that are sold by a retail
dealer or wholesale distributor to a motor vehicle manufacturer,
or to a wholesale distributor or retail dealer for the purpose of
resale outside this state, the seller in this state is entitled
to
a refund of the amount of the fee actually paid on the tires.
To
obtain a refund under this division, the seller shall apply to
the
tax commissioner, shall furnish documentary evidence
satisfactory
to the
tax commissioner that the price paid by the
purchaser did
not include the fee, and shall provide the name and
address of the
purchaser to the
tax commissioner. The seller
shall apply on the
form prescribed by the
tax commissioner,
within four years after
the date of the sale. Upon receipt of an
application, the
tax
commissioner shall determine the amount of
any refund due and
shall certify that amount to the director of
budget and management
and the treasurer of state for payment from
the tax refund fund
created in section 5703.052 of the Revised
Code.
(C) If any person entitled to a refund of fees under this section, or section 5703.70 of the Revised Code, is indebted to the state for any tax administered by the tax commissioner, or any charge, penalties, or interest arising from such tax, the amount allowable on the application for refund first shall be applied in satisfaction of the debt.
Sec. 3734.907. (A) Any person required to pay the fee
imposed by section 3734.901 of the Revised Code is personally
liable for the fee. The tax commissioner may make an assessment,
based upon any information in the commissioner's possession,
against any person who fails to file a return or pay any fee,
interest, or additional charge as required by sections 3734.90 to
3734.9014 of the Revised Code. The commissioner shall give the
person assessed written notice of the assessment
as
in the manner
provided in
section
5703.37 of the Revised Code.
With the notice,
the commissioner shall provide instructions on how to petition for
reassessment and request a hearing on the petition.
(B) When the information in the possession of the tax commissioner indicates that a person liable for the fee imposed by section 3734.901 of the Revised Code has not paid the full amount of fee due, the commissioner may audit a representative sample of the person's business and may issue an assessment based on the audit.
(C) A penalty of up to fifteen per cent may be added to all amounts assessed under this section. The commissioner may adopt rules providing for the imposition and remission of the penalties.
(D) Unless the person assessed files with the tax
commissioner within sixty days after service of the
notice of
assessment, either personally or by certified mail
as provided in
section 5703.056 of the Revised Code, a
written petition
for
reassessment
in writing
signed by the person assessed or
the
that
person's
authorized agent
having knowledge of the facts, the
assessment
becomes final and
the amount of the assessment is due
and
payable
from the person
assessed to the treasurer of state.
A
The
petition
shall indicate the
objections
to the assessment of
the
person
assessed, but
additional objections may be raised in
writing
if
received by the commissioner prior to the date
shown on
the
final
determination of the
person assessed, but
additional
objections
may be raised in
writing prior to the date
shown on the
final
determination
of the
tax commissioner.
The
commissioner
shall
grant the petitioner a
hearing on the petition,
unless
waived by the petitioner.
The commissioner may make
any correction to
the assessment
.
If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.that the commissioner finds proper and shall issue
a final
determination thereon. The
commissioner shall serve a copy of
the
final
determination on
the petitioner
either by personal
service
or by
certified mail,
and the
commissioner's decision in
the
matter is final, subject to appeal
under section 5717.02 of
the
Revised Code
(E) After an assessment becomes final, if any portion of the assessment, including accrued interest, remains unpaid, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the person assessed resides or in which the person's business is conducted. If the person assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state against the
person assessed in the
amount shown
to be due
on the entry. The
judgment may be filed by
the clerk
in
a loose-leaf book entitled
"special judgments for
state tire
fee,"
and shall have the same
effect as
other
judgments. Execution
shall issue upon the
judgment upon
the
request of the tax
commissioner, and all laws
applicable to
sales
on execution shall
apply to sales made under
the judgment.
The portion of the assessment not paid within sixty days
after the
day the assessment was issued shall bear interest
at the
rate per annum prescribed by section 5703.47 of the
Revised Code
from the day
the
tax commissioner issues the assessment until the
day the assessment is
paid. Interest shall be paid in the same
manner as the fee and may be
collected by the issuance of an
assessment under this
section.
(F) If the
tax commissioner believes that collection of the
fee
will be jeopardized unless proceedings to collect or secure
collection of the fee are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the fee.
Upon
Immediately upon the issuance of the
jeopardy assessment,
the
commissioner
immediately shall file an
entry with the clerk
of the
court of common pleas in the manner
prescribed by division
(E) of
this section. Notice of the
jeopardy assessment shall be
served
on the person assessed or the
person's legal
representative, as
provided in section 5703.37 of
the Revised Code,
within five days
of the filing of the entry with
the clerk.
The total amount
assessed is immediately due and
payable, unless the person
assessed files a petition for
reassessment in accordance with
division (D) of this section and
provides security in a form
satisfactory to the commissioner and
in an amount sufficient to
satisfy the unpaid balance of the
assessment. Full or partial
payment of the assessment does not
prejudice the commissioner's
consideration of the petition for
reassessment.
(G) All money collected by the tax commissioner under this section shall be paid to the treasurer of state as revenue arising from the fee imposed by section 3734.901 of the Revised Code.
Sec. 3769.088. (A) If any permit holder required by this chapter to pay the taxes levied by sections 3769.08, 3769.087, 3769.26, and 3769.28 of the Revised Code fails to pay the taxes, the tax commissioner may make an assessment against the permit holder based upon any information in the commissioner's possession.
A penalty of up to fifteen per cent may be added to the amount of every assessment made under this section. The commissioner may adopt rules providing for the imposition and remission of penalties added to assessments made under this section.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days
after
service of the notice of assessment, either personally
or by
certified mail, a
written petition for reassessment
in
writing, signed by
the party
assessed, or
by the
that party's
authorized agent
having
knowledge
of the facts, the assessment
shall become
becomes final and
the
amount of the assessment
shall
be
is due and payable from the
party
assessed to the
tax
commissioner. The petition shall
indicate
the
objections of the
party assessed, but additional
objections
may be
raised in writing
if received
by the
commissioner prior to the date shown on
the
final
determination
by
the commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction to
the assessment
as the commissioner finds proper. The
commissioner shall
serve a
copy of the
commissioner's
final determination on the petitioner
by personal service or
certified mail, and the commissioner's
decision in the
matter
shall be final,
subject to appeal as
provided in section 5717.02 of the
Revised
Code. Only objections
decided on the merits by the board
of tax
appeals or a court shall
be given collateral estoppel or
res
judicata effect in considering
an application for refund of
amounts paid pursuant to the
assessment.
If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the place, track, or enclosure for which the permit was issued is located or the county in which the party assessed resides or has its principal place of business. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of
such
the entry,
the clerk
shall
enter a judgment for the state against
the party assessed in
the
amount shown on the entry. The judgment
may be filed by the
clerk
in a loose-leaf book entitled
"special
judgments for state
horse
racing tax," and shall have the same
effect as
other
judgments.
Execution shall issue upon the judgment
upon
the
request of the
tax commissioner, and all laws applicable
to
sales
on execution
shall apply to sales made under the
judgment.
The portion of the assessment not paid within sixty days after the day the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until the day the assessment is paid. Interest shall be paid in the same manner as the tax and may be collected by the issuance of an assessment under this section.
(D) All money collected by the tax commissioner under this section shall be treated as revenue arising from the taxes imposed by sections 3769.08, 3769.087, 3769.26, and 3769.28 of the Revised Code.
Sec. 3924.66. (A) In determining Ohio adjusted gross income under Chapter 5747. of the Revised Code, an account holder may deduct an amount equaling the total of the deposits that the account holder, the account holder's spouse, or the account holder's employer made to the account during the taxable year, to the extent that the funds for the deposits have not otherwise been deducted or excluded in determining the account holder's federal adjusted gross income. The amount deducted by an account holder for a taxable year shall not exceed three thousand dollars. If two married persons each have an account, each spouse may claim the deduction described in this section, and the amount deducted by each spouse shall not exceed three thousand dollars, whether the spouses file returns jointly or separately.
(B) The maximum deduction allowed under division (A) of
this
section shall be adjusted annually by the department of taxation
to
reflect increases in the consumer price index for all items for
all urban
consumers for the
north central
midwest region, as
published
determined by
the United
States bureau of labor
statistics
for the period of the first day of January of the
preceding calendar year to the last day of December of the
preceding calendar year. The department of taxation shall
determine in September of each tax year the adjustment that will
be effective for the succeeding tax year. The department shall
not make the adjustment in any tax year in which the maximum
deduction resulting from the adjustment is less than the maximum
deduction allowed for the previous tax year.
(C) In determining Ohio adjusted gross income under Chapter 5747. of the Revised Code, an account holder may deduct the investment earnings of a medical savings account from the account holder's federal adjusted gross income, to the extent that these earnings have been included in the account holder's federal adjusted gross income.
(D) In determining Ohio adjusted gross income under
Chapter
5747. of the Revised Code, an account holder shall add to the
account
holder's federal adjusted gross income an amount equal to
the sum of
the amounts described in divisions
(D)(1) and (2) of
this section
to the extent that those amounts were included in the
account
holder's federal adjusted gross income and previously
deducted
in determining the account holder's
Ohio adjusted gross
income. In
determining the extent to which amounts withdrawn from
the
account shall be included in the account holder's
Ohio
adjusted gross income, the
tax commissioner shall be guided by
the
provisions of sections
72 and 408 of the Internal Revenue Code
governing the
determination of the amount of withdrawals from an
individual
retirement account to be included in federal gross
income.
(1) Amounts withdrawn from the account during the taxable year used for any purpose other than to reimburse the account holder for, or to pay, the eligible medical expenses of the account holder or the account holder's spouse or dependents;
(2) Investment earnings during the taxable year on amounts withdrawn from the account that are described in division (D)(1) of this section.
(E) Amounts withdrawn from a medical savings account to reimburse the account holder for, or to pay, the account holder's eligible medical expenses, or the eligible medical expenses of the account holder's spouse or dependents, shall not be included in the account holder's Ohio adjusted gross income in determining taxes due under Chapter 5747. of the Revised Code.
(F) If a dependent of an account holder becomes ineligible to continue to participate in the account holder's policy, plan, or contract of health coverage, the account holder may withdraw funds from the account holder's account and use those funds to pay the premium for the first year of a policy, plan, or contract of health coverage for the dependent and to pay any deductible for the first year of that policy, plan, or contract. Funds withdrawn and used for that purpose shall not be included in the account holder's Ohio adjusted gross income in determining taxes due under Chapter 5747. of the Revised Code.
Sec. 4305.131. (A) If any permit holder fails to pay the
taxes levied
in
by section 4301.42, 4301.43, 4301.432, or 4305.01
of
the Revised Code in the manner prescribed by section 4303.33 of
the Revised Code, or
in
by section 4301.421 or 4301.424 of the
Revised
Code in the manner prescribed in section 4301.422 of the
Revised Code,
and by the rules of the tax commissioner, the
commissioner may
make an assessment against the permit holder
based upon any
information in the commissioner's possession.
No assessment shall be made against any permit holder for any taxes imposed by section 4301.42, 4301.421, 4301.424, 4301.43, 4301.432, or 4305.01 of the Revised Code more than three years after the last day of the calendar month in which the sale was made or more than three years after the return for that period is filed, whichever is later. This section does not bar an assessment against any permit holder or registrant as provided in section 4303.331 of the Revised Code who fails to file a return as required by section 4301.422 or 4303.33 of the Revised Code, or who files a fraudulent return.
A penalty of up to thirty per cent may be added to the amount of every assessment made under this section. The commissioner may adopt rules providing for the imposition and remission of penalties added to assessments made under this section.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days after
service of the notice of assessment, either personally
or by
certified mail
as provided in section 5703.056 of the
Revised
Code, a
written petition for reassessment
in writing,
signed by
the party
assessed, or
by that party's authorized agent
having knowledge
of
the facts, the assessment
shall become
becomes
final and
the
amount of the
assessment
shall be
is due and payable
from the
party
assessed to the
treasurer of state. The petition
shall
indicate
the objections of
the party assessed, but
additional
objections
may be raised in
writing if received
by the
commissioner
prior to the date shown on
the final
determination
by
the
commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction to
the assessment
as the commissioner finds proper. The commissioner shall
serve a
copy of the final
determination on
the petitioner
by
personal
service or certified mail, and the
commissioner's
decision in the
matter
shall be final, subject
to appeal as provided in
section
5717.02 of the Revised Code.
Only
objections decided on the
merits
by
the board of tax appeals
or a
court shall be given
collateral
estoppel or res
judicata
effect in
considering an
application for
refund of amounts paid
pursuant to
the assessment.
If the petition
has been properly filed, the commissioner shall proceed under
section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the permit holder's place of business is located or the county in which the party assessed resides. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state against the
party assessed in the
amount shown on the entry. The judgment may
be filed by the
clerk
in a loose-leaf book entitled "special
judgments for state
beer
and liquor sales taxes," and shall have
the same
effect as
other
judgments. Execution shall issue upon
the judgment upon
the
request of the
tax commissioner, and all
laws applicable to
sales
on execution shall apply to sales made
under the judgment,
except
as otherwise provided in this chapter
and
Chapters 4301. and 4307.
of the
Revised Code.
The portion of the assessment not paid within
sixty days
after the day the assessment was issued shall bear
interest
at the
rate per annum prescribed by section 5703.47 of the
Revised Code
from
the day the
tax commissioner issues the assessment until it
is paid.
Interest shall be paid in the same manner as the tax
and
may be collected by the issuance of an assessment under this
section.
(D) All money collected under this section shall be considered as revenue arising from the taxes imposed by sections 4301.42, 4301.421, 4301.424, 4301.43, 4301.432, and 4305.01 of the Revised Code.
Sec. 4307.05. (A) The tax commissioner shall refund to
persons required to
pay the tax
levied under section 4301.42,
4301.421, 4301.424, 4301.43, 4301.432,
4303.33, or 4305.01 of the
Revised Code the amount of tax paid
illegally or erroneously or
paid on an illegal or erroneous
assessment. Applications for
refund shall be filed with the
commissioner, on the form
prescribed by the commissioner,
within three years
from the date
of the illegal or erroneous payment of the tax or
assessment.
Upon
On the filing of the application, the commissioner
shall
determine the amount of the refund
due and
to which the applicant
is entitled. If the amount is not less than that claimed, the
commissioner shall certify
the
amount to
the director of
budget
and management and treasurer of
state for
payment from the
tax
refund fund created by section
5703.052 of
the Revised Code.
If
the amount is less than that claimed, the
commissioner shall
proceed in accordance with section 5703.70 of
the Revised Code.
(B) The holder of a B-3 permit is entitled to a refund of
the actual amount
of tax paid on wine
sold for sacramental
purposes, upon
condition
the conditions that the permit
holder
make affidavit
that the wine was so sold, that the tax had been
paid
on the wine,
and that the permit holder furnish both of the
following:
(1) A written acknowledgment from the purchaser that the purchaser has received the wine and that the price paid did not include the tax;
(2) The name and address of the purchaser.
Application for a refund shall be made as an application for refund of tax erroneously paid and shall be subject to the requirements and procedures of division (A) of this section. On the filing of the application, the commissioner shall determine the amount of refund due and certify that amount to the director of budget and management and treasurer of state for payment from the tax refund fund. When a refund is granted for payment of an illegal or erroneous assessment issued by the commissioner, the refund shall include interest on the amount of the refund from the date of the overpayment. The interest shall be computed at the rate per annum prescribed by section 5703.47 of the Revised Code.
Sec. 4307.07. When tax has been
paid on bottled beverages
and such bottled beverages are sold and
shipped in interstate or
foreign commerce, or transported by
either the purchaser or seller
out of the state for the purpose
of resale outside the state, the
seller in this state is entitled
to a refund of the actual amount
of tax paid, upon condition that
he
the seller furnishes
documentary evidence satisfactory to the
tax
commissioner, which
may be from the usual business records of the
taxpayer, that the
price paid did not include the tax, together
with the name and
address of the purchaser. The commissioner may
adopt rules
providing for refund to manufacturers or dealers of
the amount of
tax paid on such bottled beverage
which
that becomes
unfit for
sale, or
any similar loss
which
that may occur, on proof of
such
loss. An
application shall be filed with the commissioner,
on the
form
prescribed by
him
the commissioner for such purpose,
within
ninety
days from the date such beverages are sold and shipped in
interstate or foreign commerce, or from the date that such
beverages become unfit for sale or any similar loss occurs.
On
On
the filing of
such
the application, the commissioner
shall determine
the amount of refund
due and
to which the
applicant is entitled. If the amount is not less than that
claimed,
the commissioner shall certify
such
the amount to the
director
of
budget and management and treasurer of state for
payment from
the
tax refund fund created by section 5703.052 of
the Revised
Code.
If the amount is less than that claimed, the commissioner shall proceed in accordance with section 5703.70 of the Revised Code.
Sec. 4503.065. (A) This section applies to any of the following:
(1) An individual who is permanently and totally disabled;
(2) An individual who is sixty-five years of age or older;
(3) An individual who is the surviving spouse of a deceased person who was permanently and totally disabled or sixty-five years of age or older and who applied and qualified for a reduction in assessable value under this section in the year of death, provided the surviving spouse is at least fifty-nine but not sixty-five or more years of age on the date the deceased spouse dies.
(B)(1) The manufactured home tax on a manufactured or mobile home that is paid pursuant to division (C) of section 4503.06 of the Revised Code and that is owned and occupied as a home by an individual whose domicile is in this state and to whom this section applies, shall be reduced for any tax year for which the owner obtains a certificate of reduction from the county auditor under section 4503.067 of the Revised Code, provided the individual did not acquire ownership from a person, other than the individual's spouse, related by consanguinity or affinity for the purpose of qualifying for the reduction in assessable value. An owner includes a settlor of a revocable inter vivos trust holding the title to a manufactured or mobile home occupied by the settlor as of right under the trust. The reduction shall equal the amount obtained by multiplying the tax rate for the tax year for which the certificate is issued by the reduction in assessable value shown in the following schedule.
Reduce Assessable Value | ||
Total Income | by the Lesser of: | |
Column A Column B |
$11,900 or less | $5,000 or seventy-five per cent | |
More than $11,900 but not more than $17,500 | $3,000 or sixty per cent | |
More than $17,500 but not more than $23,000 | $1,000 or twenty-five per cent | |
More than $23,000 | -0- |
(2) Each calendar year
beginning in 1999, the tax
commissioner shall adjust the foregoing schedule by completing
the
following
steps
calculations in September of each year:
(a) Determine the percentage increase in the gross
domestic
product deflator determined by the bureau of economic
analysis of
the United
States department of commerce
from the first day of
July
January of
the preceding calendar year to the last day of
June
December of the
current
preceding calendar
year;
(b) Multiply that percentage increase by each of the total income amounts, and by each dollar amount by which assessable value is reduced, for the ensuing tax year;
(c) Add the resulting product to each of the total income amounts, and to each of the dollar amounts by which assessable value is reduced, for the ensuing tax year;
(d) Round the resulting sum to the nearest multiple of one hundred dollars.
The commissioner shall certify the amounts resulting from the adjustment to each county auditor not later than the first day of December each year. The certified amounts apply to the second ensuing tax year. The commissioner shall not make the adjustment in any calendar year in which the amounts resulting from the adjustment would be less than the total income amounts, or less than the dollar amounts by which assessable value is reduced, for the ensuing tax year.
(C) If the owner or the spouse of the owner of a manufactured or mobile home is eligible for a homestead exemption on the land upon which the home is located, the reduction in assessable value to which the owner or spouse is entitled under this section shall not exceed the difference between the reduction in assessable value to which the owner or spouse is entitled under column A of the above schedule and the amount of the reduction in taxable value that was used to compute the homestead exemption.
(D) No reduction shall be made on the assessable value of the home of any person convicted of violating division (C) or (D) of section 4503.066 of the Revised Code for a period of three years following the conviction.
Sec. 5117.071. (A)
Each
In September of each year, the tax
commissioner shall
adjust
the total income amounts set forth in
sections
5117.07 and
5117.09 of the Revised Code
to be used for
applications submitted for the heating season commencing in the
next calendar year, by completing the
following steps:
(1) Determine the percentage increase in the gross domestic product deflator determined by the bureau of economic analysis of the United States department of commerce for the preceding year;
(2) Multiply that percentage increase by each of the total income amounts for the preceding year;
(3) Add the resulting products to each of the total income amounts for the preceding year;
(4) Round the resulting sums upward to the nearest multiple of ten dollars.
The commissioner shall not make the adjustment in any year in which the amounts resulting from the adjustment would be less than the total income amounts for the preceding year.
(B)
Each
In September of each year, the tax
commissioner also
shall adjust the
current total income amounts set forth in
sections 5117.07 and
5117.09 of the Revised Code. For any year,
the current
total
income
amounts shall equal one-half of the
respective total income
amounts set forth
in those sections and
adjusted under division
(A) of this section for
that year.
(C) Each year, the tax commissioner shall provide both the adjusted total income amounts referred to in division (A) of this section and the current total income amounts referred to in division (B) of this section to the director of development.
(D) The director of development and each energy company and energy dealer shall use the adjusted total income amounts and the current total income amounts determined under divisions (A) and (B) of this section in performing their duties under sections 5117.01 to 5117.12 of the Revised Code.
Sec. 5703.05. All powers, duties, and functions of the department of taxation are vested in and shall be performed by the tax commissioner, which powers, duties, and functions shall include, but shall not be limited to, the following:
(A) Prescribing all blank forms which the department is authorized to prescribe, and to provide such forms and distribute the same as required by law and the rules of the department. The tax commissioner shall include a mail-in registration form prescribed in section 3503.14 of the Revised Code within the return and instructions for the tax levied in odd-numbered years under section 5747.02 of the Revised Code, beginning with the tax levied for 1995. The secretary of state shall bear all costs for the inclusion of the mail-in registration form. That form shall be addressed for return to the office of the secretary of state.
(B) Exercising the authority provided by law, including orders from bankruptcy courts, relative to remitting or refunding taxes or assessments, including penalties and interest thereon, illegally or erroneously assessed or collected, or for any other reason overpaid, and in addition, the commissioner may on written application of any person, firm, or corporation claiming to have overpaid to the treasurer of state at any time within five years prior to the making of such application any tax payable under any law which the department of taxation is required to administer which does not contain any provision for refund, or on the commissioner's own motion investigate the facts and make in triplicate a written statement of the commissioner's findings, and, if the commissioner finds that there has been an overpayment, issue in triplicate a certificate of abatement payable to the taxpayer, the taxpayer's assigns, or legal representative which shows the amount of the overpayment and the kind of tax overpaid. One copy of such statement shall be entered on the journal of the commissioner, one shall be certified to the attorney general, and one certified copy shall be delivered to the taxpayer. All copies of the certificate of abatement shall be transmitted to the attorney general, and if the attorney general finds it to be correct the attorney general shall so certify on each copy, and deliver one copy to the taxpayer, one copy to the commissioner, and the third copy to the treasurer of state. Except as provided in sections 5725.08 and 5725.16 of the Revised Code the taxpayer's copy of any certificates of abatement may be tendered by the payee or transferee thereof to the treasurer of state as payment, to the extent of the amount thereof, of any tax payable to the treasurer of state.
(C) Exercising the authority provided by law relative to consenting to the compromise and settlement of tax claims;
(D) Exercising the authority provided by law relative to the use of alternative tax bases by taxpayers in the making of personal property tax returns;
(E) Exercising the authority provided by law relative to authorizing the prepayment of taxes on retail sales of tangible personal property or on the storage, use, or consumption of personal property, and waiving the collection of such taxes from the consumers;
(F) Exercising the authority provided by law to revoke licenses;
(G) Maintaining a continuous study of the practical operation of all taxation and revenue laws of the state, the manner in which and extent to which such laws provide revenues for the support of the state and its political subdivisions, the probable effect upon such revenue of possible changes in existing laws, and the possible enactment of measures providing for other forms of taxation. For this purpose the commissioner may establish and maintain a division of research and statistics, and may appoint necessary employees who shall be in the unclassified civil service; the results of such study shall be available to the members of the general assembly and the public.
(H) Making all tax assessments, valuations, findings, determinations, computations, and orders the department of taxation is by law authorized and required to make and, pursuant to time limitations provided by law, on the commissioner's own motion, reviewing, redetermining, or correcting any tax assessments, valuations, findings, determinations, computations, or orders the commissioner has made, but the commissioner shall not review, redetermine, or correct any tax assessment, valuation, finding, determination, computation, or order which the commissioner has made as to which an appeal or application for rehearing, review, redetermination, or correction has been filed with the board of tax appeals, unless such appeal or application is withdrawn by the appellant or applicant or dismissed;
(I) Appointing not more than five deputy tax commissioners, who, under such regulations as the rules of the department of taxation prescribe, may act for the commissioner in the performance of such duties as the commissioner prescribes in the administration of the laws which the commissioner is authorized and required to administer, and who shall serve in the unclassified civil service at the pleasure of the commissioner, but if a person who holds a position in the classified service is appointed, it shall not affect the civil service status of such person. The commissioner may designate not more than two of the deputy commissioners to act as commissioner in case of the absence, disability, or recusal of the commissioner or vacancy in the office of commissioner. The commissioner may adopt rules relating to the order of precedence of such designated deputy commissioners and to their assumption and administration of the office of commissioner.
(J) Appointing and prescribing the duties of all other employees of the department of taxation necessary in the performance of the work of the department which the tax commissioner is by law authorized and required to perform, and creating such divisions or sections of employees as, in the commissioner's judgment, is proper;
(K) Organizing the work of the department, which the commissioner is by law authorized and required to perform, so that, in the commissioner's judgment, an efficient and economical administration of the laws will result;
(L) Maintaining a journal, which is open to public
inspection, in which the
tax commissioner shall keep a record of
all
actions taken by
final determinations of the commissioner
relating to
assessments and the reasons therefor;
(M) Adopting and promulgating, in the manner provided by section 5703.14 of the Revised Code, all rules of the department, including rules for the administration of sections 3517.16, 3517.17, and 5747.081 of the Revised Code;
(N) Destroying any or all returns or assessment certificates in the manner authorized by law;
(O) Adopting rules, in accordance with division (B) of section 325.31 of the Revised Code, governing the expenditure of moneys from the real estate assessment fund under that division.
Sec. 5703.21. (A) Except as provided in divisions (B) and (C) of this section, no agent of the department of taxation, except in the agent's report to the department or when called on to testify in any court or proceeding, shall divulge any information acquired by the agent as to the transactions, property, or business of any person while acting or claiming to act under orders of the department. Whoever violates this provision shall thereafter be disqualified from acting as an officer or employee or in any other capacity under appointment or employment of the department.
(B)(1) For purposes of an audit pursuant to section 117.15 of the Revised Code, or an audit of the department pursuant to Chapter 117. of the Revised Code, or an audit, pursuant to that chapter, the objective of which is to express an opinion on a financial report or statement prepared or issued pursuant to division (A)(7) or (9) of section 126.21 of the Revised Code, the officers and employees of the auditor of state charged with conducting the audit shall have access to and the right to examine any state tax returns and state tax return information in the possession of the department to the extent that the access and examination are necessary for purposes of the audit. Any information acquired as the result of that access and examination shall not be divulged for any purpose other than as required for the audit or unless the officers and employees are required to testify in a court or proceeding under compulsion of legal process. Whoever violates this provision shall thereafter be disqualified from acting as an officer or employee or in any other capacity under appointment or employment of the auditor of state.
(2) As provided by section 6103(d)(2) of the Internal Revenue Code, any federal tax returns or federal tax information that the department has acquired from the internal revenue service, through federal and state statutory authority, may be disclosed to the auditor of state solely for purposes of an audit of the department.
(C) Division (A) of this section does not prohibit any of the following:
(1) Divulging information contained in applications, complaints, and related documents filed with the department under section 5715.27 of the Revised Code or in applications filed with the department under section 5715.39 of the Revised Code;
(2) Providing information to the office of child support within the department of job and family services pursuant to section 3125.43 of the Revised Code;
(3) Disclosing to the board of motor vehicle collision repair registration any information in the possession of the department that is necessary for the board to verify the existence of an applicant's valid vendor's license and current state tax identification number under section 4775.07 of the Revised Code;
(4) Providing information to the administrator of workers' compensation pursuant to section 4123.591 of the Revised Code;
(5) Providing to the attorney general information the department obtains under division (J) of section 1346.01 of the Revised Code;
(6) Permitting properly authorized officers, employees, or agents of a municipal corporation from inspecting reports or information pursuant to rules adopted under section 5745.16 of the Revised Code.
(7) Providing information regarding the name, account number, or business address of a holder of a vendor's license issued pursuant to section 5739.17 of the Revised Code, a holder of a direct payment permit issued pursuant to section 5739.031 of the Revised Code, or a seller having a use tax account maintained pursuant to section 5741.17 of the Revised Code, or information regarding the active or inactive status of a vendor's license, direct payment permit, or seller's use tax account.
Sec. 5703.37.
Except as otherwise provided by section
5711.28, 5711.31, 5727.47, or 5731.27 of the Revised Code
Whenever
service of a notice or order is required in the manner provided in
this
section, a
certified copy of
every
the
order or
notice,
service of
which is
required,
shall be
served
upon the person
affected
thereby
either
by
personal
delivery
service or
by
certified mail.
Within the time
specified in
the
an
order of the
department of
taxation, every person
upon
whom it
is
served, if
required by
the
order, shall notify the
department,
in like
manner
by personal
service, certified mail, or a delivery service
authorized under
section 5703.056 of the Revised Code, whether the
terms of the
order are
accepted and will be obeyed.
Sec. 5703.51. (A) The tax commissioner shall include in the instruction booklet for filing the annual return of personal property taxes a general description of the method by which the tax is assessed and collected and the rights and responsibilities of taxpayers in that process.
(B) At or before the commencement of an audit, the tax commissioner shall provide to the taxpayer a written description of the roles of the department of taxation and of the taxpayer during an audit and a statement of the taxpayer's rights, including any right to obtain a refund of an overpayment of a tax. At or before the commencement of an audit, the commissioner shall inform the taxpayer when the audit is considered to have commenced.
(C) With or before the issuance of an assessment, the tax commissioner or county auditor shall provide to the taxpayer:
(1) A written description of the basis for the assessment and any penalty required to be imposed with the assessment;
(2) A written description of the taxpayer's right to appeal the assessment and an explanation of the steps required to request administrative review by the tax commissioner;
(3) A written description of the collection remedies
available to the state, including a statement that if the
taxpayer
fails to pay an
amount owed to the state
assessment within
thirty
sixty
days after
it is due, the tax commissioner will certify the
amount to the
attorney general for collection, and a summary of
the provisions
contained in section 131.02 of the Revised Code.
(D) With or before the issuance of a final determination of the tax commissioner, the commissioner or county auditor shall provide to the taxpayer a written description of the steps required to perfect an appeal to the board of tax appeals.
(E) Except in cases involving suspected criminal violations of the tax law or other criminal activity, the tax commissioner shall conduct an audit of a taxpayer during regular business hours and after providing reasonable notice to the taxpayer. A taxpayer who is unable to comply with a proposed time for an audit on the grounds that the proposed audit would cause inconvenience or hardship must offer reasonable alternative dates for the audit.
(F) At all stages of an audit or the administrative review
of the audit by the tax commissioner or county auditor, a
taxpayer
is entitled to be assisted or represented by an
attorney,
accountant, bookkeeper, or other tax practitioner. The
tax
commissioner shall prescribe a form by which a taxpayer may
designate such a person to assist or represent
him
the taxpayer
in
the conduct of any proceedings resulting from actions by the tax
commissioner
or county auditor. In the absence of this form, the
commissioner
or auditor may accept such other evidence as
he
the
commissioner
considers appropriate that a person is the authorized
representative of a
taxpayer.
A taxpayer may refuse to answer any questions asked by the
person conducting the audit until
he
the taxpayer has an
opportunity to consult with
his
the taxpayer's attorney,
accountant, bookkeeper, or other tax practitioner. This division
does not
authorize the practice of
law by a person who is not an
attorney.
(G) A taxpayer may record, electronically or otherwise, the audit examination.
(H) The failure of the tax commissioner or county auditor
to
comply with a provision of this section shall neither excuse a
taxpayer from payment of any taxes shown to be owed by
him
the
taxpayer nor cure any procedural defect in a taxpayer's case.
(I) If the tax commissioner or county auditor fails to substantially comply with the provisions of this section, the commissioner, on application by the taxpayer, shall excuse the taxpayer from penalties and interest arising from the audit or assessment.
A taxpayer shall make application to the commissioner under this division within one year of the date the taxpayer knows of or should have known that the commissioner or county auditor failed to substantially comply with the provisions of this section.
Sec. 5703.60. (A) If a petition for reassessment has been properly filed under a law that specifies that this section applies, the tax commissioner shall proceed as follows:
(1) Except as provided in division (D) of this section, the commissioner may correct the assessment by issuing a corrected assessment. The corrected assessment may reduce or increase the previous assessment, as the commissioner finds proper. The commissioner shall send the corrected assessment by ordinary mail to the address to which the original assessment was sent, unless the petitioner notifies the commissioner of a different address. The commissioner's mailing of the corrected assessment is an assessment timely made and issued to the extent that the original assessment was timely made and issued, notwithstanding any time limitation otherwise imposed by law.
Within sixty days after the mailing of the corrected assessment, the petitioner may file a new petition for reassessment. The petition shall be filed in the same manner as provided by law for filing the original petition. If a new petition is properly filed within the sixty-day period, the commissioner shall proceed under division (A)(2) or (3) of this section. If a new petition is not properly filed within the sixty-day period, the corrected assessment becomes final, and the amount of the corrected assessment is due and payable from the person assessed.
The issuance of a corrected assessment under this division nullifies the petition for reassessment filed before such issuance, and that petition shall not be subject to further administrative review or appeal. The commissioner may issue to the person assessed only one corrected assessment under this division.
(2) The commissioner may cancel the assessment by issuing either a corrected assessment or a final determination. The commissioner may mail the cancellation in the same manner as a corrected assessment under division (A)(1) of this section. Cancellation of an assessment pursuant to this division is not subject to further administrative review or appeal.
(3) If no corrected assessment or final determination is issued under division (A)(1) or (2) of this section, or if a new petition for reassessment is properly filed under division (A)(1) of this section, the commissioner shall review the assessment or corrected assessment petition that is still pending. If the petitioner requests a hearing, the commissioner shall assign a time and place for the hearing and notify the petitioner of such time and place, but the commissioner may continue the hearing from time to time as necessary. Upon completion of the review and hearing, if requested by the person assessed, the commissioner shall either cancel the assessment or corrected assessment by issuing a corrected assessment or final determination under division (A)(2) of this section, or issue a final determination that reduces, affirms, or increases the assessment or corrected assessment, as the commissioner finds proper. If a final determination is issued under this division, a copy of it shall be served on the petitioner in the manner provided by section 5703.37 of the Revised Code, and it is subject to appeal under section 5717.02 of the Revised Code. Only objections decided on the merits by the board of tax appeals or a court shall be given the effect of collateral estoppel or res judicata in considering an application for refund of amounts paid pursuant to the assessment or corrected assessment.
(B) Except as provided in division (D) of this section, in addition to the authority provided in division (A) of this section and division (H) of section 5703.05 of the Revised Code, the tax commissioner, on the commissioner's own motion, may issue a corrected assessment with regard to the assessment of any tax for which a properly filed petition for reassessment would be subject to division (A) of this section. A corrected assessment may be issued under this division only if the original assessment has not been certified to the attorney general for collection under section 131.02 of the Revised Code, or is not an appeal pursuant to section 5717.02 of the Revised Code. The corrected assessment shall not increase the amount of tax, penalty, or additional charge if the statute of limitations to issue a new assessment for such increase has expired. The corrected assessment shall be issued and reviewed in the same manner as a corrected assessment under division (A)(1) of this section.
(C) If the tax commissioner issues a corrected assessment or final determination under this section that reduces an assessment below the amount paid thereon, and the reduction is made at the written request of the party assessed, either through the filing of a proper petition for reassessment or otherwise, the commissioner shall certify any overpayment as a refund due only to the extent a refund could have been timely claimed when the request was made. If the reduction is made on the commissioner's own motion, the commissioner shall certify any overpayment as a refund due only to the extent a refund could have been timely claimed at the time the reduction was made.
(D) The tax commissioner shall not issue a corrected assessment under division (A)(1) or (B) of this section after the party assessed has requested in writing that the commissioner not use that procedure.
(E) This section does not require the tax commissioner to issue a corrected assessment.
Sec. 5703.70. (A) On the filing of an application for refund under section 3734.905, 4307.05, 4307.07, 5727.28, 5727.91, 5728.061, 5733.12, 5735.122, 5735.13, 5735.14, 5735.141, 5735.142, 5735.18, 5739.07, 5739.071, 5739.104, 5741.10, 5743.05, 5743.53, or 5749.08 of the Revised Code, if the tax commissioner determines that the amount of the refund to which the applicant is entitled is less than the amount claimed in the application, the commissioner shall give the applicant written notice by ordinary mail of the amount. The notice shall be sent to the address shown on the application for a refund unless the applicant notifies the commissioner of a different address. The applicant shall have sixty days from the date the commissioner mails the notice to provide additional information to the commissioner or request a hearing, or both.
(B) If the applicant neither requests a hearing nor provides additional information to the tax commissioner within the time prescribed by division (A) of this section, the commissioner shall take no further action, and the refund amount denied becomes final.
(C)(1) If the applicant requests a hearing within the time prescribed by division (A) of this section, the tax commissioner shall assign a time and place for the hearing and notify the applicant of such time and place, but the commissioner may continue the hearing from time to time as necessary. After the hearing, the commissioner may make such adjustments to the refund as the commissioner finds proper, and shall issue a final determination thereon.
(2) If the applicant does not request a hearing, but provides additional information, within the time prescribed by division (A) of this section, the commissioner shall review the information, make such adjustments to the refund as the commissioner finds proper, and issue a final determination thereon.
(3) The commissioner shall serve a copy of the final determination made under division (C)(1) or (2) of this section on the applicant in the manner provided in section 5703.37 of the Revised Code, and the decision is final, subject to appeal under section 5717.02 of the Revised Code.
(D) The tax commissioner shall certify to the director of budget and management and treasurer of state for payment from the tax refund fund created by section 5703.052 of the Revised Code, the amount to be refunded under division (B) or (C) of this section.
Sec. 5711.31. Whenever the assessor assesses any property
not listed in or omitted from a return, or whenever the assessor
assesses any item or class of taxable property listed in a return
by the taxpayer in excess of the value or amount thereof as so
listed, or without allowing a claim duly made for deduction from
the net book value of accounts receivable, or depreciated book
value of personal property used in business, so listed, the
assessor shall give notice of such assessment to the taxpayer by
mail. The mailing of
such
the notice of assessment shall be
prima-facie evidence of the receipt of the same by the person to
whom such notice is addressed.
With the notice, the assessor shall
provide instructions on how to petition for reassessment and
request a hearing on the petition.
Within sixty days after the mailing of the notice of
assessment prescribed in this section, the party assessed may
file
with the tax commissioner, in person or by certified mail, a
written
petition for reassessment
in writing, signed by the party
assessed, or by
the
that party's authorized agent having
knowledge
of the
facts. If the petition is filed by certified mail, the
date of
the United States postmark placed on the sender's receipt
by the
postal employee to whom the petition is presented shall be
treated as the date of filing. The petition shall have attached
thereto and incorporated therein by reference a true copy of the
notice of assessment complained of, but the failure to attach a
copy of such notice and incorporate it by reference does not
invalidate the petition. The petition also shall indicate the
objections of the party assessed, but additional objections may
be
raised in writing if received prior to the date shown on the
final
determination by the commissioner.
Upon receipt of a properly filed petition, the commissioner shall notify the treasurer of state or the auditor and treasurer of each county having any part of the assessment entered on the tax list or duplicate.
Unless
If the petitioner
waives
requests a hearing
on the
petition, the commissioner
shall assign a time and place for the
hearing
on the petition and
notify the petitioner of
the
such time
and place
of the hearing by
personal service or certified mail,
but the commissioner may
continue the hearing from time to time
if
as necessary.
The commissioner may make
such correction
corrections to the
assessment, as the commissioner finds proper. The
commissioner
shall serve a
copy of the commissioner's final determination on
the
petitioner
by personal
service or by certified mail, and
in
the
manner provided in section 5703.37 of the Revised Code. The
commissioner's
decision in the matter
shall be
is final, subject
to appeal
as provided in
under section 5717.02
of the Revised
Code. The commissioner also shall transmit a copy
of the
commissioner's final determination to the treasurer
of state or
applicable county auditor. In the absence of any further appeal,
or when a decision of the board of tax appeals or of any court to
which the decision has been appealed becomes final, the
commissioner shall notify the treasurer of state or the proper
county auditor of such final determination. If the final
determination orders correction of the assessment, the
notification may be in the form of a corrected assessment
certificate. Upon receipt of the notification, the treasurer of
state or the proper county auditor shall make any corrections to
the treasurer's or auditor's records and tax lists and
duplicates
required in accordance
therewith and proceed as prescribed by
section 5711.32 or 5725.22
of the Revised Code.
The decision of the commissioner upon such petition for reassessment shall be final with respect to the assessment of all taxable property listed in the return of the taxpayer and shall constitute to that extent the final determination of the commissioner with respect to such assessment. Neither this section nor a final judgment of the board of tax appeals or any court to which such final determination may be appealed shall preclude the subsequent assessment in the manner authorized by law of any taxable property which such taxpayer failed to list in such return, or which the assessor has not theretofore assessed.
As used in this section, "taxpayer" includes financial institutions, dealers in intangibles, and domestic insurance companies as defined in section 5725.01 of the Revised Code.
Sec. 5715.49.
No
(A) Except as provided in division (B) of
this section, no former or present county auditor or member
of a
county board
of revision shall divulge, except in the
performance
of
his
official duties or upon the order of the
department of
taxation, or
when called upon to testify in any
court or
proceeding, any information
acquired
by him in the
exercise of the
powers vested
in him by
the laws relating to
taxation, or while
claiming to exercise any such powers,
as to the
transactions,
property, or business of any person, company, firm,
corporation,
association, or partnership. Whoever violates this
section shall
thereafter be disqualified from acting in any
official capacity in
connection
with the assessment or collection
of taxes or
recoupment charges.
(B) Division (A) of this section does not prohibit a county auditor from divulging the name and business address of a vendor, a vendor's license number, or information regarding the active or inactive status of a vendor's license issued by the county auditor pursuant to section 5739.17 of the Revised Code.
Sec. 5715.50.
No
(A) Except as provided in division (B) of
this section, no former or present expert, clerk, or
employee of a
county auditor, county board of revision, or the
tax
commissioner,
and no former or present deputy, assistant, or
agent
of the tax
commissioner shall divulge, except in the
performance
of
his
official duties or in
his
any
report to the county auditor,
the
county board of revision, or the tax
commissioner, or when
called
upon to testify in any court or proceeding, any
information
acquired
by him in the exercise of the powers vested
in him
therein by any law, or while claiming to exercise such
powers, as
to the transactions, property, or business of any person,
company,
firm, corporation, association, or partnership. Whoever
violates
this section shall thereafter be disqualified from
acting in any
official capacity in connection with the assessment
or collection
of taxes or recoupment charges.
The
(B) Division (A) of this section does not prohibit the divulgence of:
(1) The name and address of the
statutory agent in this
state and the names of
officers and
directors of any corporation
are not within the
prohibition of
this section;
(2) The name and business address of a vendor, vendor's license number, or information regarding the active or inactive status of a vendor's license issued by the county auditor pursuant to section 5739.17 of the Revised Code.
Sec. 5717.02. Except as otherwise provided by law, appeals from final determinations by the tax commissioner of any preliminary, amended, or final tax assessments, reassessments, valuations, determinations, findings, computations, or orders made by the commissioner may be taken to the board of tax appeals by the taxpayer, by the person to whom notice of the tax assessment, reassessment, valuation, determination, finding, computation, or order by the commissioner is required by law to be given, by the director of budget and management if the revenues affected by such decision would accrue primarily to the state treasury, or by the county auditors of the counties to the undivided general tax funds of which the revenues affected by such decision would primarily accrue. Appeals from the redetermination by the director of development under division (B) of section 5709.64 or division (A) of section 5709.66 of the Revised Code may be taken to the board of tax appeals by the enterprise to which notice of the redetermination is required by law to be given. Appeals from a decision of the tax commissioner concerning an application for a property tax exemption may be taken to the board of tax appeals by a school district that filed a statement concerning such application under division (C) of section 5715.27 of the Revised Code. Appeals from a redetermination by the director of job and family services under section 5733.42 of the Revised Code may be taken by the person to which the notice of the redetermination is required by law to be given under that section.
Such appeals shall be taken by the filing of a notice of
appeal with the board, and with the tax commissioner if the tax
commissioner's action is the subject of the appeal, with the
director of
development if that director's action is the subject
of the
appeal, or with the director of job and family services if
that director's
action is the subject of the appeal. The notice
of appeal shall be filed
within sixty days after service of the
notice of the tax
assessment, reassessment,
valuation,
determination, finding, computation, or order by the
commissioner
or redetermination by the director has been given as provided in
section 5703.37, 5709.64, 5709.66, or 5733.42
of the Revised Code.
The notice of such
appeal may be filed in person or by certified
mail,
express mail, or authorized delivery service. If the
notice
of such appeal is filed by certified mail, express mail, or
authorized delivery service as provided in section 5703.056 of the
Revised
Code, the date of the United States postmark placed on the
sender's receipt by
the postal service
of
or the date of receipt
recorded by the authorized delivery
service shall be treated as
the date of filing. The notice of appeal shall
have attached
thereto and incorporated therein by reference a
true copy of the
notice sent by the commissioner or director to
the taxpayer,
enterprise, or other person of
the final determination or
redetermination complained of, and shall also
specify the errors
therein complained of, but failure to attach a copy of such
notice
and incorporate it by reference in the notice of appeal
does not
invalidate the appeal.
Upon the filing of a notice of appeal, the tax commissioner or the director, as appropriate, shall certify to the board a transcript of the record of the proceedings before the commissioner or director, together with all evidence considered by the commissioner or director in connection therewith. Such appeals or applications may be heard by the board at its office in Columbus or in the county where the appellant resides, or it may cause its examiners to conduct such hearings and to report to it their findings for affirmation or rejection. The board may order the appeal to be heard upon the record and the evidence certified to it by the commissioner or director, but upon the application of any interested party the board shall order the hearing of additional evidence, and it may make such investigation concerning the appeal as it considers proper.
Sec. 5727.26. (A) The tax commissioner may make an
assessment,
based on any information in the commissioner's
possession, against any natural
gas company or combined company
that fails to file a return
or pay any tax, interest, or
additional charge as required by sections 5727.24
to 5727.29 of
the Revised Code. The
commissioner shall give the company
assessed written notice of the assessment
as
in the manner
provided in section
5703.37
of the Revised Code.
With the notice,
the commissioner
shall provide instructions on how to petition for
reassessment and
request a hearing on the petition. A penalty of
up to fifteen per
cent
may be added to all amounts assessed under
this section. The
tax
commissioner may adopt rules providing for
the imposition and
remission of the penalty.
(B)
If a party to whom the notice of assessment is directed
objects to the assessment, the party may file a petition for
reassessment
Unless the company assessed, within sixty days after
service of the notice of assessment, files with
the tax
commissioner. The, either personally or by certified mail, a
written petition
must be made
in writing, signed by the
party or
the party's
company's authorized agent
having knowledge of the
facts,
and filed with the commissioner,
either personally or by
certified mail, within sixty days
after
service of the
notice of
assessment
becomes final, and the amount of the assessment is due
and payable from the company assessed to the treasurer of state.
The petition shall indicate
the objections of the company
assessed, but additional objections
may be raised in writing if
received
by the commissioner prior to the date shown on
the final
determination
of the commissioner.
Upon receipt of
If a
petition for reassessment has been
properly filed
petition, the commissioner shall
notify the
treasurer of state.
Unless the petitioner waives a hearing, the commissioner
shall
grant the petitioner a hearing on the petition, assign a
time and place
for the hearing, and notify the petitioner of the
time and place of the
hearing as provided in
proceed under
section
5703.37
5703.60 of
the Revised Code.
The commissioner
may continue
the hearing from
time to time, if necessary.
If the party to whom the notice of assessment is directed
does not
file a petition for reassessment, the assessment is final
and the amount
of the assessment is due and payable from the
company assessed to the
treasurer of state.
(C) The tax commissioner may make any correction to the
assessment that the commissioner finds proper and shall issue a
final determination thereon. The commissioner shall serve a copy
of the final determination on the petitioner as provided in
section 5703.37
of the Revised Code, and
the commissioner's
decision in the
matter is final, subject to appeal under section
5717.02 of the
Revised Code. The commissioner
also shall transmit
a copy of the final determination to the treasurer of
state. Only
objections
decided on the merits by the board of tax appeals or a
court shall be given
collateral estoppel or
res judicata effect in
considering an application for refund of an
amount paid pursuant
to the assessment.
(D)(C) After an assessment becomes final, if any portion of
the
assessment, including accrued interest, remains unpaid, a
certified copy of
the tax commissioner's entry making the
assessment final
may be filed in the office of the clerk of the
court of common
pleas in the county in which the natural gas
company's or combined
company's principal place of business is
located,
or in the office of the clerk of court of common pleas of
Franklin
county.
The clerk, immediately on
Immediately upon the filing of the
entry,
must
the clerk shall enter
judgment for the state against
the company assessed in the amount
shown
on the entry. The
judgment may be filed by the clerk in a
loose-leaf
book entitled,
"special judgments for the public
utility excise
tax on natural
gas and combined companies," and
shall
have the same effect as
other judgments.
Execution shall
issue upon the judgment at the
request of the tax
commissioner,
and all laws applicable to sales
on execution shall
apply to sales
made under the judgment.
The portion of the assessment not paid within sixty days after the day the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until it is paid. Interest shall be paid in the same manner as the tax and may be collected by the issuance of an assessment under this section.
(E)(D) If the tax commissioner believes that collection of
the
tax
will be jeopardized unless proceedings to collect or
secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the
person
company
liable for the tax.
On
Immediately upon the issuance of
the jeopardy assessment, the
commissioner
immediately shall file
an entry with the clerk of the
court of common pleas in the manner
prescribed by division
(D)(C) of
this section. Notice of the
jeopardy assessment shall be served
on the
party
company
assessed
or the
party's legal representative as
company's authorized agent
in the manner
provided in section 5703.37 of the Revised Code
within
five days
of the filing of the entry with the clerk. The
total
amount
assessed is immediately due and payable, unless the
person
company
assessed files a petition for reassessment in
accordance with
division (B) of this section and provides security
in a form
satisfactory to the commissioner and in an amount
sufficient to
satisfy the
unpaid balance of the
assessment. Full
or partial
payment of the assessment does not prejudice the
commissioner's
consideration of the petition for reassessment.
(F)(E) All interest collected by the tax commissioner under
this
section shall be paid to the treasurer of state, and when
paid
shall be considered revenue arising from the tax imposed by
section 5727.24 of the Revised Code.
(G)(F) No assessment shall be made or issued against a
natural
gas
company or combined company for the tax imposed by
section
5727.24 of the Revised Code more than four years
after the
return
date for the period in which the tax was reported, or more
than
four years after the return for the period
was filed,
whichever is
later.
Sec. 5727.28. (A) The treasurer of state shall refund to a natural gas company or combined company subject to the tax imposed by section 5727.24 of the Revised Code, the amount of tax paid illegally or erroneously, or paid on an illegal or erroneous assessment. Applications for a refund shall be filed with the tax commissioner, on a form prescribed by the commissioner, within four years of the illegal or erroneous payment of the tax.
On the filing of the application
for a refund, the
commissioner
shall determine the amount of refund
due and
to which
the applicant is entitled. If the amount is not less than that
claimed, the commissioner shall certify
that
the amount to the
director of budget and management and treasurer
of state for
payment
from the tax refund fund under section
5703.052 of the
Revised
Code.
If
the amount is less than that claimed, the
commissioner shall proceed in accordance with section 5703.70 of
the Revised Code.
If the application for refund is
for taxes paid on an illegal
or erroneous assessment, the
tax
commissioner shall
include in the
certified amount interest
calculated at the rate per annum
prescribed
under
by section 5703.47
of the Revised Code from
the
date of overpayment to the date of
the commissioner's
certification.
(B) If a natural gas company or combined company entitled to a refund of taxes under this section, or section 5703.70 of the Revised Code, is indebted to the state for any tax or fee administered by the tax commissioner that is paid to the state, or any charge, penalty, or interest arising from such a tax or fee, the amount refundable may be applied in satisfaction of that debt. If the amount refundable is less than the amount of the debt, it may be applied in partial satisfaction of the debt. If the amount refundable is greater than the amount of the debt, the amount remaining after satisfaction of the debt shall be refunded.
(C) In lieu of granting a refund under division (A) or (B) of this section, the tax commissioner may allow a natural gas company or combined company to claim a credit of the amount of the tax refund on the return for the period during which the tax became refundable. The commissioner may require the company to submit information to support a claim for a credit under this division, and the commissioner may disallow the credit if the information is not provided.
Sec. 5727.39. (A) As used in this section:
(1) "9-1-1 system" has the meaning given in section 4931.40 of the Revised Code.
(2) "Nonrecurring 9-1-1 charges" means nonrecurring charges approved by the public utilities commission for the telephone network portion of a 9-1-1 system pursuant to section 4931.47 of the Revised Code.
(3) "Eligible nonrecurring 9-1-1 charges" means all nonrecurring 9-1-1 charges for a 9-1-1 system except:
(a) Charges for a system that was not established pursuant to a plan adopted under section 4931.44 of the Revised Code or an agreement under section 4931.48 of the Revised Code; or
(b) Charges for that part of a system established pursuant to such a plan or agreement that are excluded from the credit by division (C)(2) of section 4931.47 of the Revised Code.
(4)
"Current year's percentage change in the consumer
price
index" means the greater of one or one plus the percentage
increase in the consumer price index for all urban consumers
(U.S.
city average, all items), prepared by the United States
department
of labor, bureau of labor statistics, for
June
December of the
current
preceding year
over the index for
June
December of the
immediately
second preceding
year.
(B) A telephone company shall be allowed a credit against the tax computed under section 5727.38 of the Revised Code equal to the amount of its eligible nonrecurring 9-1-1 charges.
The credit shall be claimed in the company's annual
statement
required under division (A) of section 5727.31 of the
Revised Code
that covers the twelve-month period in which the
9-1-1 service for
which the credit is claimed becomes available
for use. If the tax
commissioner determines the credit claimed
equals the amount of
the company's eligible nonrecurring 9-1-1
charges,
he
the
commissioner shall credit such amount against
the total taxes
shown to be due from the company for the current year and shall
refund the amount of any overpayment of taxes resulting from the
application of such credit. If the credit allowed under this
section exceeds the total taxes due for the current year,
he
the
commissioner shall credit such excess against taxes due for
succeeding
years
until the full amount of the credit is granted.
The estimated taxes required to be paid by section 5727.31 of the Revised Code shall be based on the taxes for the preceding year prior to any credit allowed under this section for that year.
(C)(1) Within thirty days after June 18, 1985, the tax commissioner shall compute the amount that represents twenty-five per cent of the total taxes for all telephone companies computed under section 5727.38 of the Revised Code based on the annual statements required to be filed with the commissioner in September, 1984, under section 5727.31 of the Revised Code. Such amount shall constitute the credit ceiling for 1985.
(2) Each
October
September, beginning in
1986
2001, the
commissioner
shall
multiply
determine the credit ceiling by
multiplying the preceding year's credit ceiling by the
current
preceding calendar
year's
percentage change in the consumer price
index
for all urban consumers for the midwest region, as
determined by the United States bureau of labor statistics. The
product thus
obtained shall constitute the credit ceiling for the
current year.
(D) After the last day a return may be filed by any
telephone company that is eligible to claim a credit under this
section, the commissioner shall determine whether the sum of the
credits allowed for all prior years plus the sum of the credits
claimed for the current year exceeds the current year's credit
ceiling. If it does, the credits allowed under this section for
the current year shall be reduced by a uniform percentage such
that the sum of the credits allowed for the current year plus the
sum of the credits allowed for all prior years equals the current
year's credit ceiling. Thereafter, no credit shall be granted
under this division, except for the remaining portions of any
credits allowed in the current or any prior years
but that have
not been granted.
Sec. 5727.47. (A)
A copy
Notice of each assessment certified
pursuant
to section 5727.23 or 5727.38 of the Revised Code
shall
be mailed to the public utility, and its mailing shall be
prima-facie evidence of its receipt by the public utility to
which
it is addressed.
With the notice, the tax commissioner shall
provide instructions on how to petition for reassessment and
request a hearing on the petition. If a public utility objects to
any
assessment
certified to it pursuant to such sections, it may
file
a petition
for reassessment with the tax commissioner. The
petition must be
made in writing, signed by the authorized agent
of the utility
having knowledge of the facts, and filed with the
tax
commissioner,
in person
either personally or by
certified
mail, within
sixty days
from
after the
date that
mailing of the
notice of assessment
was mailed
a written petition for
reassessment signed by the utility's authorized agent having
knowledge of the facts. If the petition is
filed by
certified
mail, the date of the United States postmark
placed on
the
sender's receipt by the postal employee to whom the
petition
is
presented shall be treated as the date of filing.
The petition
shall indicate the utility's objections, but
additional objections
may be raised in writing if received
by the commissioner prior
to
the date shown on
the final determination
by the commissioner.
In the case of a petition seeking a reduction in taxable
value filed with
respect to an assessment issued under section
5727.23 of the Revised Code, the
petitioner
shall state in the
petition the total amount of reduction in taxable value sought by
the petitioner. If the petitioner objects to the
percentage of
true value at which taxable property is assessed
by the
tax
commissioner, the petitioner shall state in the petition the total
amount of reduction in taxable
value sought both with and
without
regard to the objection pertaining to the percentage of
true value
at which its taxable property is assessed.
If a petitioner
objects
to the
tax commissioner's apportionment of the taxable
value of
the petitioner's taxable property, the petitioner shall
distinctly state in
the petition that the petitioner objects
to
the
tax commissioner's apportionment, and, within forty-five days
after filing the petition for reassessment, shall submit the
petitioner's proposed apportionment of the taxable value of its
taxable property among taxing districts. If a petitioner that
objects to the
tax commissioner's apportionment fails to
state its
objections to that apportionment in
its petition for reassessment
or fails to submit its proposed
apportionment within forty-five
days after filing the petition for
reassessment, the
tax
commissioner shall dismiss the petitioner's
objection to the
tax
commissioner's apportionment, and the taxable
value of the
petitioner's taxable property, subject to any
adjustment to
taxable value pursuant to the petition or appeal, shall be
apportioned in the manner used by the
tax commissioner in the
preliminary or
amended preliminary assessment issued under
section
5727.23 of the Revised Code.
If an additional objection seeking a reduction in taxable
value in
excess of the reduction stated in the original petition
is properly and timely
raised with respect to an assessment issued
under section 5727.23 of the Revised Code, the
petitioner shall
state the total amount of the
reduction in taxable value sought in
the additional
objection both with and without regard to any
reduction in taxable value
pertaining
to the percentage of true
value at which taxable property is
assessed. If a petitioner
fails to state the reduction in taxable
value sought in the
original petition or in additional
objections properly raised
after the petition is filed, the
tax
commissioner shall notify the
petitioner of the failure by
certified mail. If the petitioner
fails to notify the
tax
commissioner in writing of the reduction
in taxable value sought
in the petition or in an additional
objection within thirty days after
receiving the
tax
commissioner's notice, the
tax
commissioner shall dismiss the
petition or the additional objection in which
that reduction is
sought.
(B)(1) Subject to divisions (B)(2) and (3) of this
section,
a public utility filing a petition
for reassessment regarding an
assessment issued under section 5727.23 or
5727.38 of the Revised
Code shall pay
the tax with respect to the assessment objected to
as required by law. The acceptance of any tax payment by the
treasurer of state or any county treasurer shall not prejudice
any
claim for taxes on final determination by the
tax commissioner or
final decision by the board of tax appeals or any court.
(2) If a public utility properly and timely files a petition for reassessment regarding an assessment issued under section 5727.23 of the Revised Code, the petitioner shall pay the tax as prescribed by divisions (B)(2)(a), (b), and (c) of this section:
(a) If the petitioner does not object to the
tax
commissioner's
apportionment of the taxable value of the
petitioner's taxable property, the
petitioner
is not required to
pay the part of the tax otherwise due on the taxable value
that
the petitioner seeks to have reduced,
subject to division
(B)(2)(c) of this section.
(b) If the petitioner objects to the
tax commissioner's
apportionment of the taxable value of the petitioner's taxable
property, the
petitioner is not required to pay the
tax otherwise
due on the part of the taxable value apportioned to
any taxing
district that the petitioner objects to, subject to
division
(B)(2)(c) of this section. If,
pursuant to division (A) of this
section, the petitioner has,
in a proper and timely manner,
apportioned taxable value to a taxing
district to which the
tax
commissioner did not apportion the
petitioner's taxable value, the
petitioner shall pay the tax due on the
taxable value that the
petitioner has apportioned to the taxing
district, subject to
division (B)(2)(c) of this
section.
(c) If a petitioner objects to the percentage of true value
at
which taxable property is assessed by the
tax commissioner, the
petitioner shall pay the tax due on the
basis of the percentage of
true value at which the public utility's
taxable property is
assessed by the
tax commissioner. In
any case, the petitioner's
payment of tax shall not be less
than the amount of tax due based
on the taxable value reflected on the
last appeal notice issued by
the
tax commissioner under division
(C) of this section. Until
the county auditor receives notification under division (E) of
this section and proceeds under section 5727.471 of the Revised
Code to issue any refund that
is found to be due, the county
auditor shall not issue a refund for
any increase in the reduction
in taxable value that is sought by a petitioner
later than
forty-five days after the petitioner files
the original petition
as required under division (A) of this
section.
(3) Any part of the tax that, under division
(B)(2)(a)
) or
(b) of
this section, is not paid shall be collected
upon
receipt
of the notification as provided in section 5727.471 of the Revised
Code
with interest thereon computed in the same manner as interest
is computed
under division (E) of section 5715.19 of the Revised
Code,
subject to
any correction of the assessment
by the
tax
commissioner under division (E) of this section or the
final
judgment of the board
of tax appeals or a court to which the
board's
final judgment is appealed. The
penalty imposed under
section 323.121 of the Revised Code
shall apply only to the unpaid
portion of the tax if the petitioner's tax
payment is less than
the amount of tax due based on the taxable value
reflected on the
last appeal notice issued by the
tax commissioner under division
(C) of this section.
(C) Upon receipt of a properly filed petition for
reassessment, the tax
commissioner
shall notify the treasurer of
state or the auditor of each county
to which the assessment
objected to has been certified. In the case of a
petition with
respect to an assessment issued
under section 5727.23 of the
Revised Code, the
tax commissioner shall issue an appeal notice
within thirty days
after receiving the amount of the taxable value
reduction and
apportionment changes sought by the petitioner in
the original
petition or in any additional objections properly and
timely
raised by the petitioner. The appeal
notice shall
indicate
the amount of the reduction in taxable value sought in the
petition
or in the additional objections and the extent to which
the reduction in
taxable value
and any change in apportionment
requested by the petitioner
would affect the
tax
commissioner's
apportionment of the taxable value among taxing
districts in the
county as shown in the assessment.
If a petitioner is seeking a
reduction in taxable value on the
basis of a lower percentage of
true value than the percentage at which
the
tax commissioner
assessed the petitioner's taxable property, the
appeal notice
shall indicate the reduction in taxable value sought
by the
petitioner without regard to the reduction sought on the
basis of
the lower percentage and shall indicate that the
petitioner is
required to pay tax on the reduced taxable value
determined
without regard to the reduction sought on the basis of
a lower
percentage of true value, as provided under division
(B)(2)(c)
of
this section. The appeal notice
shall include a statement that
the reduced taxable value and the
apportionment indicated in the
notice are not final and are
subject to adjustment by the
tax
commissioner or by the board of
tax appeals or a court on appeal.
If the
tax commissioner finds an error in the appeal notice, the
tax commissioner may amend the notice, but the notice is only for
informational and tax payment purposes; the notice is not subject
to appeal by any person. The
tax commissioner also shall mail a
copy of the appeal notice to the petitioner. Upon the request of
a taxing
authority, the
county auditor may disclose to the taxing
authority the extent to
which a reduction in taxable value sought
by a petitioner would
affect the apportionment of taxable value to
the taxing district or districts
under the taxing authority's
jurisdiction,
but such a disclosure does not constitute a notice
required by law
to be given for the purpose of section 5717.02 of
the Revised Code.
(D)
Unless
If the petitioner
waives
requests a hearing
on the
petition, the
tax commissioner
shall assign a time and place for
the hearing on the petition and
notify the petitioner of
the
such
time and place
of the hearing by
personal service or certified
mail, but the commissioner may
continue the hearing from time to
time
if
as necessary.
(E) The tax commissioner may make
such correction
corrections to the
assessment
as the
tax commissioner finds
proper. The
tax
commissioner shall
serve a copy of the
commissioner's
final
determination on the petitioner
by personal
service or
certified
mail, and
in the
tax
manner provided in
section 5703.37 of the Revised Code. The commissioner's decision
in the
matter shall be
final,
subject to appeal
as provided in
under section 5717.02 of the
Revised
Code. The
tax commissioner
also shall transmit a copy of
the
final
determination to the
treasurer of state or applicable
county
auditor. In the absence
of any further appeal, or when a
decision of the board of tax
appeals or of any court to which the
decision has been appealed
becomes final, the
tax commissioner
shall
notify the public
utility and, as appropriate, the treasurer
of
state who shall
proceed under section 5727.42 of the Revised
Code, or the
applicable county auditor who shall proceed under
section 5727.471
of the Revised Code.
In any notification
regarding an assessment
issued under section 5727.23 of the
Revised Code, the
tax
commissioner shall include a notice of the
amount of
any state
basic aid overpayment, as defined in section
5727.471 of the
Revised
Code, to a
school district affected by the
notification.
Upon the tax commissioner's request, the department
of
education
shall certify to the tax commissioner the
amount of
any state
basic aid overpayment to a school district.
The notification made under this division is not subject to further appeal.
(F) On appeal, no adjustment shall be made in the tax
commissioner's assessment issued under section 5727.23 of the
Revised Code
that reduces the
taxable value of a petitioner's
taxable property by an amount that exceeds the
reduction sought by
the petitioner in its petition for reassessment or in any
additional objections properly and timely raised after the
petition is filed with the
tax commissioner.
Sec. 5727.471. (A) As used in this section:
(1)
"Notification", "notification" means notification
required by section
5727.47 of
the Revised Code to be sent by the
tax commissioner to
the county
auditor as to the disposition of a
petition for
reassessment, or
of a decision of the board of tax
appeals or any
court with
respect to an assessment of public
utility property
taxes.
(2)
"State basic aid overpayment" for a school district
means
the
amount by which the payment computed for a fiscal year
under
section
3317.022 of the Revised Code exceeds the amount that
would
have been computed for that fiscal year if the taxable value
certified
under division (A)(2) and (B) of section 3317.021 of the
Revised Code for
the tax year preceding that fiscal year had been
the taxable
value shown in the notification for that tax year.
(B) On receipt of the notification, the auditor shall
determine whether there has been an underpayment or overpayment
of
taxes by the public utility. In the case of an underpayment
of
taxes, the auditor shall notify the county treasurer of the
amount, and the treasurer shall proceed to collect the
underpayment as required by law.
From the proceeds of the
underpayment so collected that are
otherwise payable to a city,
local, or exempted village school district,
the county treasurer
shall deduct and withhold an amount equal to the
state basic aid
overpayment, if any, to the school district, plus
interest on that
amount at the rate prescribed by section 5703.47
of the Revised
Code from the last day of the fiscal year for which
the state
basic aid payment was made to the day the underpayment is
collected.
The county treasurer shall pay the amount deducted and
withheld to the
treasurer of state, who shall credit the payment
to the general
revenue fund. If the state basic aid overpayment
and interest
exceeds the amount of the tax underpayment collected
that is
otherwise payable to the school district, the county
treasurer
shall collect the difference from the school district or
deduct
and withhold the difference from the next distribution or
advance
payment of property taxes to the district, and shall pay
that
difference to the treasurer of state, who shall credit the
payment
to the general revenue fund.
In the case of an overpayment of taxes, the auditor shall do any one of the following:
(1) Refund the full amount of the overpayment;
(2) Refund a portion of the overpayment and prorate the remaining balance as a credit against future taxes that may be charged to the public utility;
(3) Prorate the full amount of the overpayment as a credit against future taxes that may be charged to the public utility.
(C)(1) The auditor shall have discretion as to which method to use and shall advise the public utility of the auditor's decision within sixty days after receipt of the notification. The auditor shall make payment of any refund under division (B)(1) or (2) of this section within ninety days after receipt of the notification. Except as otherwise provided in division (C)(2) of this section, any amount to be credited under division (B)(2) or (3) of this section shall be applied to all or a part of the taxes otherwise due from the public utility on real and public utility property tax installment due dates after the date on which the notification was received, but shall not be spread over more than the next ten ensuing installment due dates. If any portion of the overpayment has not been refunded or credited by the tenth such tax installment due date after the date on which the notification was received, the auditor immediately shall refund that portion.
(2) The tax commissioner may certify to a county auditor, in writing, that a public utility is no longer required to file a report under section 5727.08 of the Revised Code. Within ninety days of the date of such certification, the auditor shall refund to the utility, with applicable interest, the portion of any overpayment that has not been refunded or credited to the utility under this section.
(D) The auditor shall add interest to the amount of any overpayment of taxes at the rate per calendar month, rounded to the nearest one-hundredth of one per cent, equal to one-twelfth of the rate per annum prescribed by section 5703.47 of the Revised Code. The interest shall begin to accrue from the first day of the month following the date of the overpayment until the last day of the month preceding the date the overpayment or portion of the overpayment is refunded or credited, and shall be computed separately on each amount actually refunded or credited. In computing interest on credits, when an overpayment is credited against an installment of current taxes due from the utility pursuant to this section, the overpayment shall be considered to have been credited on the last date on which those taxes may be paid without penalty.
(E) The refund and crediting of any overpayment, including interest, shall be paid from or credited against the fund or funds and the taxing districts to which the overpayment originally was paid, in proportion to the amount of the overpayment received. The auditor shall correct the auditor's tax lists in accordance with the refund or credit, and shall certify corrections in the tax duplicates to the county treasurer. At each settlement affected by a refund or credit under this section, the amount of the refund or credit shall be deducted from the amount of any taxes or assessments distributable to the county or any taxing unit in the county that has received the benefit of the taxes or assessment previously overpaid, in proportion to the overpayment previously received.
Sec. 5727.89. (A) The tax commissioner may make an assessment, based on any information in the commissioner's possession, against any natural gas distribution company, electric distribution company, self-assessing purchaser, or qualified end user that fails to file a return or pay any tax, interest, or additional charge as required by sections 5727.80 to 5727.95 of the Revised Code.
When information in the possession of the tax commissioner
indicates that a person liable for the
tax imposed by section
5727.81 or 5727.811 of the
Revised Code has not paid the full
amount of tax due, the commissioner may audit a representative
sample of the person's business and may issue an assessment
based
on the audit. The commissioner shall give the person
assessed
written notice of the assessment
by personal service or
certified
mail
in the manner provided in section 5703.37 of the Revised
Code.
With the notice, the commissioner shall provide instructions
on how to petition for reassessment and request a hearing on the
petition.
The tax commissioner may issue an assessment for which the tax imposed by section 5727.81 or 5727.811 of the Revised Code was due and unpaid on the date the person was informed by an agent of the tax commissioner of an investigation or audit of the person. Any payment of the tax for the period covered by the assessment, after the person is so informed, shall be credited against the assessment.
A penalty of up to fifteen per cent may be added to all amounts assessed under this section. The commissioner may adopt rules providing for the imposition and remission of penalties.
(B) Unless the party
assessed files with the tax
commissioner within sixty
days
after service of the notice of
assessment, either personally or
by certified mail, a written
petition for
reassessment signed by
the party assessed or
the
that
party's
authorized agent having
knowledge of the facts, the
assessment
is
becomes final and the amount
of the assessment is
due and
payable
from the party assessed to
the treasurer of state.
The
petition
shall indicate the
objections of the party assessed,
but
additional objections may
be raised in writing
if received by
the
commissioner prior to the date
shown on the final
determination
of
the tax commissioner.
The
commissioner shall
grant the petitioner a hearing on the petition,
unless waived by
the petitioner.
(C) The commissioner may
make
any correction
to the
assessment
that the commissioner
finds proper and shall
issue a
final determination thereon. The commissioner shall serve a copy
of the final
determination on
the petitioner
either by personal
service or by certified mail as
provided
in section 5703.37 of the
Revised Code,
and the
commissioner's decision in the matter is
final, subject
to appeal
under section 5717.02 of the
Revised
Code.
If the petition has been properly filed, the commissioner
shall proceed under section 5703.60 of the Revised Code.
(D)(C) After an assessment
becomes final, if any portion of
the
assessment, including
accrued interest, remains unpaid, a
certified copy of the
tax
commissioner's entry making the
assessment
final may be filed in
the office of the clerk of the
court of
common pleas in the
county in which the party assessed
resides or
in which the
party's business is conducted. If the
party assessed
maintains
no place of business in this state and is
not
a resident
of this state, the certified copy of the entry
may
be filed in the
office of the clerk of the court of common
pleas
of Franklin
county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state against the
person assessed in
the
amount shown on the entry. The judgment
may be filed by the
clerk
in a loose-leaf book entitled "special
judgments for the
distribution excise taxes," and shall have the
same effect as
other
judgments. Execution shall issue upon the
judgment at the
request
of the tax commissioner, and all laws
applicable to sales
on
execution shall apply to sales made under
the judgment.
The portion of the assessment not paid within sixty days after the day the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until the day the assessment is paid. Interest shall be paid in the same manner as the tax and may be collected by the issuance of an assessment under this section.
(E)(D) If the tax
commissioner believes that collection of
the
tax imposed by
section 5727.81 or 5727.811 of the Revised
Code
will be jeopardized unless
proceedings to collect or secure
collection of the tax are
instituted without delay, the
commissioner may issue a jeopardy
assessment against the person
liable for
the tax.
Upon
Immediately upon the issuance of the
jeopardy assessment, the
commissioner
immediately shall file an
entry with the clerk of
the
court of common pleas in the manner
prescribed by division
(D)(C) of
this section. Notice of
the
jeopardy assessment shall be served
on the party assessed or
the
party's legal representative within
five days of the filing
of the
entry with the clerk. The total
amount assessed is
immediately
due and payable, unless the party
assessed files a
petition for
reassessment in accordance with
division
(B) of this section and
provides security in a form
satisfactory to the commissioner and
in an amount sufficient to
satisfy the unpaid balance of the
assessment. Full or partial
payment of the assessment does not
prejudice the commissioner's
consideration of the petition for
reassessment.
(F)(E) All money collected
by the tax commissioner under
this
section shall be paid to the
treasurer of state, and when
paid
shall be considered as revenue
arising from the taxes imposed
by
sections 5727.81 and 5727.811 of the Revised Code.
Sec. 5727.91. (A) The treasurer of state shall refund the amount of tax paid under section 5727.81 or 5727.811 of the Revised Code that was paid illegally or erroneously, or paid on an illegal or erroneous assessment. A natural gas distribution company, an electric distribution company, or a self-assessing purchaser shall file an application for a refund with the tax commissioner on a form prescribed by the commissioner, within four years of the illegal or erroneous payment of the tax.
Upon
On the filing of the application, the commissioner shall
determine the amount of refund
due and
to which the
applicant is
entitled. If the amount is not less than that claimed,
the
commissioner shall certify that amount to
the
director of budget
and
management and the treasurer of state
for
payment from the tax
refund fund under section 5703.052 of
the
Revised Code.
If
the
amount is less than that claimed, the
commissioner shall proceed
in accordance with section 5703.70 of
the Revised Code.
If the application for
refund is for taxes paid on
an illegal
or erroneous assessment,
the
tax commissioner shall
include in the
certified amount
interest calculated at the rate
per annum
under
prescribed by section 5703.47
of the Revised Code from the date
of
overpayment to the date of the commissioner's
certification.
(B) If a natural gas distribution company or an electric distribution company entitled to a refund of taxes under this section, or section 5703.70 of the Revised Code, is indebted to the state for any tax or fee administered by the tax commissioner that is paid to the state, or any charge, penalty, or interest arising from such a tax or fee, the amount refundable may be applied in satisfaction of the debt. If the amount refundable is less than the amount of the debt, it may be applied in partial satisfaction of the debt. If the amount refundable is greater than the amount of the debt, the amount remaining after satisfaction of the debt shall be refunded. If the natural gas distribution company or electric distribution company has more than one such debt, any debt subject to section 5739.33 or division (G) of section 5747.07 of the Revised Code shall be satisfied first. This section applies only to debts that have become final.
(C)(1) Any electric distribution company that can substantiate to the tax commissioner that the tax imposed by section 5727.81 of the Revised Code was paid on electricity distributed via wires and consumed at a location outside of this state may claim a refund in the manner and within the time period prescribed in division (A) of this section.
(2) Any natural gas distribution company that can substantiate to the tax commissioner that the tax imposed by section 5727.811 of the Revised Code was paid on natural gas distributed via its facilities and consumed at a location outside of this state may claim a refund in the manner and within the time period prescribed in division (A) of this section.
(D) Before a refund is issued under this section or section 5703.70 of the Revised Code, a natural gas company or an electric distribution company shall certify, as prescribed by the tax commissioner, that it either did not include the tax imposed by section 5727.81 of the Revised Code in the case of an electric distribution company, or the tax imposed by section 5727.811 of the Revised Code in the case of a natural gas distribution company, in its distribution charge to its customer upon which a refund of the tax is claimed, or it has refunded or credited to the customer the excess distribution charge related to the tax that was erroneously included in the customer's distribution charge.
Sec. 5727.93. (A) No person shall distribute electricity or natural gas to a meter of an end user in this state or to an unmetered location in this state if that person is not registered with the tax commissioner as an electric distribution company or a natural gas distribution company.
(B) Each person required
to register under division (A)
of
this section shall register prior to distributing electricity or
natural
gas
to a meter of an end user in this state or to an
unmetered location in this
state. The tax commissioner
shall
prescribe the form of the registration application. The
commissioner shall assign an identification number to each
registration and notify the registrant of that number. The
registration shall remain in effect until canceled in writing by
the registrant upon the cessation of distributing electricity or
natural
gas to
a meter of an end user in this state or to an
unmetered location in this
state, or until such registration
is
denied, revoked, or canceled by the commissioner. A
registration
may be revoked or canceled by the tax commissioner
as provided by
Chapter 119. of
the Revised
Code, for failure of an
electric
distribution company to pay the tax imposed by section
5727.81 of
the Revised Code, failure of a natural gas distribution
company to
pay the tax imposed by section 5727.811 of the Revised Code, or
failure of an electric distribution company or a natural gas
distribution
company to
comply with sections
5727.80 and 5727.82
to 5727.95 of the Revised
Code. A
company whose registration is
denied may petition for a hearing,
in accordance with the
procedures set forth in
divisions
division
(B)
and (C) of section
5727.89
of the
Revised Code, not later than thirty
days after
receiving
the denial, and the final determination is
subject to
appeal under
section 5717.02 of the Revised
Code.
(C) The tax commissioner shall maintain a list of the companies registered under this section. The list shall contain the name and address of each company registered by the commissioner. The list and subsequent updates of it shall be open to public inspection.
Sec. 5728.01. As used in sections 5728.02 to 5728.14 of the Revised Code:
(A) "Motor vehicle" means everything on wheels that is self-propelled, other than by muscular power or power collected from electric trolley wires and other than vehicles or machinery not designed for or employed in general highway transportation, used to transport or propel property over a public highway.
(B) "Commercial car" means any motor vehicle used for transporting property, wholly on its own structure on a public highway.
(C) "Commercial tractor" means any motor vehicle designed and used to propel or draw a trailer or semi-trailer or both on a public highway without having any provision for carrying loads independently of such trailer or semi-trailer.
(D) "Trailer" means everything on wheels that is not self-propelled, except vehicles or machinery not designed for or employed in general highway transportation, used for carrying property wholly on its own structure and for being drawn by a motor vehicle on a public highway, including any such vehicle when formed by or operated as a combination of a semi-trailer and a vehicle of the dolly type such as that commonly known as a trailer dolly. "Trailer" does not include manufactured homes as defined in division (C)(4) of section 3781.06 of the Revised Code or mobile homes as defined in division (O) of section 4501.01 of the Revised Code.
(E) "Semi-trailer" means everything on wheels that is not self-propelled, except vehicles or machinery not designed for or employed in general highway transportation, designed and used for carrying property on a public highway when being propelled or drawn by a commercial tractor when part of its own weight or the weight of its load, or both, rest upon and is carried by a commercial tractor.
(F) "Commercial tandem" means any commercial car and trailer or any commercial tractor, semi-trailer, and trailer when fastened together and used as one unit.
(G) "Commercial tractor combination" means any commercial tractor and semi-trailer when fastened together and used as one unit.
(H) "Axle" means two or more load carrying wheels mounted in a single transverse vertical plane.
(I)
"Public highway" means any highway, road, or street
dedicated to public use
except, including a highway under the
control and
jurisdiction of the Ohio turnpike commission created
by the
provisions of section 5537.02 of the Revised Code
and land
and lots over which the public, either as user or owner, generally
has a right to pass even though such land or lots are closed
temporarily by public authorities for the purpose of construction,
reconstruction, maintenance, or repair.
Sec. 5728.02. (A) Except as provided in section 5728.03
of
the Revised Code, every person who is liable for the tax
imposed
by section 5728.06 of the Revised Code on the operation
of a
commercial car with three or more axles when operated alone or as
part
of a commercial tandem, a commercial car with two axles
that
is to be operated as part of a commercial tandem with a gross
vehicle
weight or a registered gross vehicle weight exceeding
twenty-six thousand
pounds, or a
commercial tractor that is, or is
to be, operated or driven upon
a public highway shall cause to be
filed annually with the tax
commissioner a written application for
a
highway
fuel use permit on
blank forms to be furnished by the
commissioner for that purpose.
Each application for a
highway
fuel use permit for a
commercial
car or a commercial tractor shall contain any
information the tax
commissioner prescribes.
(B) Upon receipt of the application, the
tax commissioner
shall
issue to the person making the application a
highway
fuel
use
permit
and any identification device that the
commissioner
considers
necessary for the proper administration of this
chapter.
The
permit and the identification device shall be of a
design and
contain any information the commissioner considers
necessary. The
identification device shall be displayed on the
commercial car or
commercial tractor for which it was issued at
all times in the
manner the commissioner prescribes. The
highway
fuel
use permits
and
the identification device shall not be
transferable. In case
of
the loss of a
highway
fuel use permit or
identification device,
the
commissioner shall issue a duplicate
of the permit or device.
The
highway
fuel use permit shall be valid until it expires
or
is
suspended or surrendered.
Sec. 5728.03. (A) In lieu of filing an application for
an
annual
highway
fuel use permit under section 5728.02 of the
Revised
Code and in lieu of filing returns under section 5728.08
of the
Revised Code, a person who is the owner of a commercial car
with
three or more axles when operated alone or as part of a
commercial
tandem, a commercial car with two axles that is to be
operated as
part of a commercial tandem with a gross vehicle
weight or a
registered
gross vehicle weight exceeding twenty-six
thousand
pounds, or a commercial
tractor that is, or
is to be,
operated or
driven upon a public highway, may file an
application
with the tax
commissioner for a single-trip
highway
fuel
use
permit. The
application shall be based on rules adopted by the
tax
commissioner and
shall include an
amount estimated to be
substantially equivalent to the
highway
use and motor vehicle fuel
use tax liability that the applicant
will incur by driving on the
highways of this state during the
period covered by the
single-trip permit. The amount so
estimated shall be considered
to be the
highway use tax and motor
vehicle fuel use tax liability
so incurred.
The commissioner may authorize independent permit services
or
other persons to issue single-trip
highway
fuel use permits.
(B) The tax commissioner shall adopt rules establishing all of the following:
(1) Procedures for the issuance of single-trip permits;
(2) The length of time the permits are effective;
(3) Requirements that independent permit services or other
persons must meet to be authorized to issue single-trip
highway
fuel
use permits and procedures for obtaining that authorization;
(4) Estimates of the amount substantially equivalent to
the
highway use and motor vehicle fuel use tax liability that an
applicant will incur by driving on the highways of this state
during the period covered by the permit.
(C) No person whose
highway
fuel use permit issued under
section
5728.02 of the Revised Code is currently under suspension
in
accordance with section 5728.11 of the Revised Code shall be
issued a single-trip
highway
fuel use permit under this section.
(D) All moneys collected pursuant to this section shall be deposited in the state treasury in accordance with section 5728.08 of the Revised Code.
Sec. 5728.04. It
shall be
is unlawful, on and after
September
30, 1955,
for any
person to operate a commercial car
with three or
more axles when operated
alone or as part of a
commercial tandem,
a commercial car
with two axles that is to be
operated as part of
a commercial tandem
with a gross vehicle
weight or a registered
gross vehicle weight exceeding
twenty-six
thousand pounds, or a
commercial tractor when operated alone
or as
part of a
commercial
tractor combination or commercial tandem on a
public highway
without a valid
highway
fuel use permit for such
commercial car or
commercial tractor.
The judge or magistrate of any court finding any person guilty of unlawfully operating a commercial car or commercial tractor as provided for in this section shall immediately notify the tax commissioner of such violation and shall transmit to the commissioner the name and the permanent address of the owner of the commercial car or commercial tractor operated in violation of this section, the registration number, the state of registration, and the certificate of title number of the commercial car or commercial tractor.
Sec. 5735.311
5728.05. The tax commissioner may enter into
cooperative reciprocal agreements providing for the imposition of
motor fuel use taxes on an apportionment or allocation basis with
the proper authority of any state, any commonwealth, the District
of Columbia, a state or province of a foreign country, or a
territory or possession of the United States or of a foreign
country. The agreement may provide for determining the base
state
for fuel users, users' records requirements, audit
procedures,
exchange of information, the definition of qualified
motor
vehicles, bonding requirements, reporting requirements,
reporting
periods, specifying uniform penalty and interest for
late
reporting or payment, determining methods of collecting and
remitting fuel use taxes to member jurisdictions, and such other
provisions as will facilitate the administration of the
agreement.
To any extent provisions of the Revised Code governing the
administration of the tax levied by section
5735.31
5728.06 of the
Revised
Code are irreconcilable with provisions of a reciprocal
agreement
entered into pursuant to this section, the provisions
of
the
reciprocal agreement prevail.
The agreement may provide for the
tax commissioner to audit
the records of persons based in this state for purposes of the
agreement in order to determine whether the fuel use taxes due
each member jurisdiction are properly reported and paid. If any
person based in this state fails to properly report and pay fuel
use taxes as required by the agreement, the
tax commissioner may
issue an assessment against that person pursuant to the
provisions
of the agreement and section 5728.10 of the Revised
Code.
The
tax commissioner may exchange with the proper officers
of
other member jurisdictions and with the repository of the
agreement any information in the commissioner's possession
relative to the administration and enforcement of the agreement.
The exchange of information under this section is not a violation
of section 5703.21 or 5715.50 of the Revised Code. For purposes
of this section,
"proper officers of other member jurisdictions"
includes officers of any agency, department, or instrumentality
of
another member jurisdiction with authority under the laws of
that
jurisdiction to administer or enforce motor vehicle or
taxation
laws.
The
tax commissioner may adopt rules for the administration
and enforcement of the agreement entered into pursuant to this
section, and shall prescribe and supply necessary forms.
The commissioner may provide information necessary for the administration and enforcement of this chapter to persons who collect such information for the purpose of providing it to other persons that are responsible for the administration and enforcement of motor vehicle or tax laws. The information provided by the commissioner shall identify the taxpayer and the status of the taxpayer's account obtained from the filings required under sections 5728.01 to 5728.14 of the Revised Code. Providing such information under this section is not a violation of section 5703.21 or 5715.50 of the Revised Code.
Sec. 5728.06.
For the purpose of providing revenues to pay
the cost of administering and enforcing the laws pertaining to
the
levy and collection of the tax imposed by this section, to
provide
funds to pay the state's share of the cost of
constructing or
reconstructing highways and eliminating railway
grade crossings on
the major thoroughfares of the state highway
system and urban
extensions thereof, and to pay the interest,
principal, and
charges on highway obligations issued pursuant to
Section 2i of
Article VIII, Ohio Constitution, and sections
5528.30 and 5528.31
of the Revised Code, there is hereby levied a
highway use tax upon
each commercial car with three or more
axles when operated alone
or as part of a commercial tandem, each
commercial car with two
axles used as a part of a commercial tandem
with a gross vehicle
weight or a registered gross vehicle weight exceeding
twenty-six
thousand pounds,
and each commercial tractor operated alone or
used as part of a
commercial tractor
combination or commercial
tandem. Except as provided in section
5728.05 of the Revised
Code, the rates shall be as follows:
(A) One-half cent for each mile traveled on a public
highway
in Ohio by each commercial car with three or more axles;
(B) One cent for each mile traveled on a public highway in
Ohio by a commercial tandem with three axles or a commercial
tractor operated alone or as part of a commercial tractor
combination
with
three axles;
(C) One and one-half cents for each mile traveled on a
public highway in Ohio by a commercial tractor operated as a part
of a commercial tractor combination with four axles;
(D) Two cents for each mile traveled on a public highway
in
Ohio by a commercial tractor operated as part of a commercial
tractor combination with a total of five or more axles;
(E) Two and one-half cents for each mile traveled on a
public highway in Ohio by each commercial car or commercial
tractor operated as part of a commercial tandem with four or more
axles.
For the following purposes, an excise tax is hereby imposed
on the use of motor fuel to operate on the public highways of this
state a commercial car with three or more axles operated alone or
as part of a commercial tandem, a commercial car with two axles
operated as part of a commercial tandem having a gross vehicle
weight or registered gross vehicle weight exceeding twenty-six
thousand pounds, or a commercial tractor operated alone or as part
of a commercial tractor combination or commercial tandem: to
provide revenue for maintaining the
state highway system, to widen
existing surfaces on such
highways,
to resurface such highways, to
enable the counties of
the state
properly to plan for, maintain,
and repair their roads,
to enable
the municipal corporations to
plan, construct,
reconstruct,
repave, widen, maintain, repair,
clear, and clean
public highways,
roads, and streets; to pay that
portion of the
construction cost
of a highway project that a
county, township,
or municipal
corporation normally would be
required to pay, but
that the
director of transportation, pursuant
to division (B) of
section
5531.08 of the Revised Code, determines
instead will be
paid from
moneys in the highway operating fund; to
maintain and
repair
bridges and viaducts; to purchase, erect, and
maintain
street and
traffic signs and markers; to purchase, erect,
and
maintain
traffic lights and signals; to pay the costs
apportioned
to the
public under section 4907.47 of the Revised
Code; and to
supplement revenue already available for such
purposes, to
distribute equitably among those persons using the
privilege of
driving motor vehicles upon such highways and streets
the cost of
maintaining and repairing the same, and to pay the
interest,
principal, and charges on bonds and other obligations
issued
pursuant to Section 2i of Article VIII, Ohio Constitution,
and
sections 5528.30 and 5528.31 of the Revised Code. The tax is
imposed in the same amount as the motor fuel tax imposed under
Chapter 5735. of the Revised Code plus an additional tax of three
cents per gallon,
as determined
by the gallons consumed while
operated on
the public highways of this state. Payment of the
fuel use tax
shall be made by the purchase of motor
fuel within
Ohio of such
gallons as is equivalent to the
gallons consumed
while operating
such a motor vehicle on the public
highways of
this state, or by
direct remittance to the treasurer
of state with
the fuel use
tax return filed pursuant to
section 5728.08 of the
Revised Code.
Any person subject to the tax imposed under this section who purchases motor fuel in this state for use in another state in excess of the amount consumed while operating such motor vehicle on the public highways of this state shall be allowed a credit against the tax imposed by this section or a refund equal to the motor fuel tax paid to this state on such excess. No such credit or refund shall be allowed for taxes paid to any state that imposes a tax on motor fuel purchased or obtained in this state and used on the highways of such other state but does not allow a similar credit or refund for the tax paid to this state on motor fuel purchased or acquired in the other state and used on the public highways of this state.
The tax commissioner is authorized to determine whether such credits or refunds are available and to prescribe such rules as are required for the purpose of administering this chapter.
(B) Within sixty days after the last day of each month, the tax commissioner shall determine the amount of motor fuel tax allowed as a credit against the tax imposed by this section. The commissioner shall certify the amount to the director of budget and management and the treasurer of state, who shall credit the amount in accordance with section 5728.08 of the Revised Code from current revenue arising from the tax levied by section 5735.05 of the Revised Code.
(C) The owner of each commercial car and commercial tractor
subject to sections 5728.01 to 5728.14 of the Revised Code
shall
be
is liable for the payment of the full amount of the taxes
levied
herein
imposed by this section.
An owner who is a person regularly engaged, for compensation, in the business of leasing or renting motor vehicles without furnishing drivers may designate that the lessee of a motor vehicle leased for a period of thirty days or more shall report and pay the tax incurred during the duration of the lease. An owner who is an independent contractor that furnishes both the driver and motor vehicle, may designate that the person so furnished with the driver and motor vehicle for a period of thirty days or more shall report and pay the tax incurred during that period. An independent contractor that is not an owner, but that furnishes both the driver and motor vehicle and that has been designated by the owner of the motor vehicle to report and pay the tax, may designate that the person so furnished with driver and motor vehicle for a period of thirty days or more shall report and pay the tax incurred during that period.
Sec. 5728.061. The treasurer of state shall refund the
amount of
highway
fuel use taxes
overpaid, paid illegally or
erroneously, or
paid
on any illegal or erroneous assessment.
Applications for refund
shall be
filed with the tax
commissioner,
on the form prescribed
by
him
the commissioner,
within four years
from the date of the
overpayment, the illegal or erroneous
payment
of the tax, or the payment of the illegal or erroneous assessment.
An application shall be filed by the person who made payment of
the tax for which the refund is claimed. When a refund is granted
for payment of an
illegal or erroneous assessment issued by the
commissioner, the
refund shall include interest on the amount of
the refund from
the date of the
overpayment
payment. The interest
shall
be computed at
the rate per annum prescribed by section
5703.47 of
the Revised
Code.
On
On the filing of the application, the
commissioner shall
determine the amount of refund
due and
to which the
applicant is
entitled. If the amount is not less than that claimed,
the
commissioner shall certify
that
the amount to the
director of
budget and management and treasurer
of state for
payment from the
tax refund fund created by section
5703.052 of
the Revised Code.
Application for refund shall be
filed by the
person who made
payment of the tax for which refund
is claimed.
If the amount is
less than that claimed, the
commissioner shall proceed in
accordance with section 5703.70 of
the Revised Code.
Sec. 5728.07. Every person who is or becomes liable for the
payment of the
tax levied in section 5728.06 of the Revised Code
shall
keep a complete and
accurate record, upon forms prescribed
by the tax commissioner, showing the
total miles traveled on a
public highway in this state by
maintain detailed distance and
fuel records for each commercial car
and commercial
tractor owned,
leased, rented, or otherwise operated by such
person, the number
of axles actually used while traveling said
miles, the
highway use
permit number for each commercial car and
commercial tractor owned
or operated and such other information as
the tax commissioner may
require.
Such records shall be available
at any time, during
normal business hours, for
the inspection of
the tax commissioner
or
his
the commissioner's
duly authorized
agents and shall be
preserved for a period of four years
from the date the return
required to be filed under section 5728.08 of the Revised Code was
due or filed, whichever is later.
Sec. 5728.08. Except as provided in section 5728.03 of the
Revised Code and except as otherwise provided in this section,
whoever
is liable for the payment of the tax levied
by section
5728.06 of the Revised Code, on or before the last day
of each
January, April, July, and October, shall file with the
treasurer
of state, on forms prescribed by the tax commissioner,
a
highway
fuel
use tax return and make payment of the full amount of
the tax
due
for the operation of each commercial car and
commercial
tractor
for the
next preceding three calendar months. If
the
commercial
cars or commercial tractors are farm trucks and the
amount
of
motor fuel used to operate the trucks during the
next
preceding
twelve
calendar months was less than fifteen thousand
gallons, the
highway
fuel use tax return shall be filed and the
full
amount of tax
due paid on
or before the last day of each
July
for
the
next
preceding twelve calendar months. If the
commercial
cars
or
commercial tractors are farm trucks and the amount of
motor
fuel
used to operate the trucks during the
next preceding
twelve
calendar
months was fifteen thousand gallons or more, the
highway
fuel
use tax return shall
be filed and the full amount of
the tax
due
paid either on or before the last
day of each July for
the
next
preceding twelve calendar months, or
on or before the
last
day of
each January, April,
July, and October for the
next
preceding
three calendar
months, at the option of the person
liable for
payment of the tax. If the
commercial cars or
commercial tractors
are not farm trucks, and if, in the
estimation
of the
tax
commissioner, the amount of the tax due does not
warrant
quarterly
filing, the commissioner may authorize the
filing of the
highway
fuel
use
tax return and payment of the full
amount due on or before the
last day of
each July for the
next
preceding twelve months.
Immediately upon the receipt of a
highway
fuel use tax
return,
the
treasurer of state shall mark on the return the date
it was
received by the treasurer of state and the amount of tax
payment
accompanying the
return and shall transmit the return to
the
tax
commissioner.
The treasurer of state shall place to the credit of the tax
refund fund created by section 5703.052 of the Revised Code, out
of receipts from the taxes levied by section 5728.06 of the
Revised Code, amounts equal to the refund certified by the
tax
commissioner pursuant to section 5728.061 of the Revised Code.
Receipts from the tax shall be used by the
tax commissioner to
defray expenses incurred by the department of taxation in
administering sections 5728.01 to 5728.14 of the Revised Code.
All moneys received in the state treasury from taxes levied
by section 5728.06 of the Revised Code and fees assessed under
sections 5728.02 and
section 5728.03 of the Revised Code
which
that are not
required to be placed to the credit of the tax refund
fund as
provided by this section shall, during each calendar year,
be
credited to the highway improvement bond retirement fund
created
by section 5528.12 of the Revised Code until the
commissioners of
the sinking fund certify to the treasurer of
state, as required
by
section 5528.17 of the Revised Code, that
there are sufficient
moneys to the credit of the highway
improvement bond retirement
fund to meet in full all payments of
interest, principal, and
charges for the retirement of bonds and
other obligations issued
pursuant to Section 2g of Article VIII,
Ohio Constitution, and
sections 5528.10 and 5528.11 of the Revised
Code due and payable
during the current calendar year and during
the
next succeeding
following
calendar year. From the date of the
receipt of the certification
required by section 5528.17 of the
Revised Code by the treasurer
of state until the thirty-first day
of December of the calendar
year in which the certification is
made, all moneys received in
the state treasury from taxes levied
under section 5728.06 of the
Revised Code and fees assessed under
sections 5728.02 and
section 5728.03
of the Revised Code
which
that are not required to be placed to the
credit of the tax refund
fund as provided by this section shall
be
credited to the highway
obligations bond retirement fund
created
by section 5528.32 of the
Revised Code until the
commissioners of
the sinking fund certify
to the treasurer of
state, as required by
section 5528.38 of the
Revised Code, that
there are sufficient
moneys to the credit of
the highway
obligations bond retirement
fund to meet in full all
payments of
interest, principal, and
charges for the retirement of
bonds and
other obligations issued
pursuant to Section 2i of
Article VIII,
Ohio Constitution, and
sections 5528.30 and 5528.31
of the
Revised Code due and payable
during the current calendar
year and
during the
next succeeding
following calendar year.
From
the date of the
receipt of the certification
required by
section
5528.38 of the
Revised Code by the treasurer
of state
until the
thirty-first day
of December of the calendar
year in
which the
certification is
made, all moneys received in
the state
treasury
from taxes levied
under section 5728.06 of the
Revised
Code and
fees assessed under
sections 5728.02 and
section 5728.03
of the
Revised Code
which
that are not
required to be placed to
the
credit of the tax refund fund as
provided by this section
shall be
credited to the highway
operating fund created by section
5735.291
of the Revised Code,
except as provided by the next
succeeding
paragraph of this
section.
From the date of the receipt by the treasurer of state of
certifications from the commissioners of the sinking fund, as
required by sections 5528.18 and 5528.39 of the Revised Code,
certifying that the moneys to the credit of the highway
improvement bond retirement fund are sufficient to meet in full
all payments of interest, principal, and charges for the
retirement of all bonds and other obligations
which
that may be
issued
pursuant to Section 2g of Article VIII, Ohio Constitution,
and
sections 5528.10 and 5528.11 of the Revised Code, and to the
credit of the highway obligations bond retirement fund are
sufficient to meet in full all payments of interest, principal,
and charges for the retirement of all obligations issued pursuant
to Section 2i of Article VIII, Ohio Constitution, and sections
5528.30 and 5528.31 of the Revised Code, all moneys received in
the state treasury from the taxes levied under section 5728.06
and
fees assessed under
sections 5728.02 and
section 5728.03 of the
Revised
Code, which
that are not required to be placed to the
credit
of the tax
refund fund as provided by this section, shall
be
deposited to the
credit of the highway operating fund.
As used in this section, "farm truck" means any commercial car or commercial tractor that is registered as a farm truck under Chapter 4503. of the Revised Code.
Sec. 5728.09. (A) Any person who fails to file timely the return required by section 5728.08 of the Revised Code may be required to pay an additional charge equal to the greater of fifty dollars or ten per cent of the tax due. The tax commissioner may adopt rules providing for the imposition and remission of the additional charges. Any additional charge imposed under this section may be collected through an assessment as provided in section 5728.10 of the Revised Code.
(B) If the tax imposed by this chapter
or section 5735.31
of
the Revised Code, or any portion of that tax, whether
determined
by the tax commissioner or the taxpayer, is not paid
on or before
the date prescribed in section 5728.08 of the
Revised Code,
interest shall be collected and paid in the same
manner as the
tax, upon that unpaid amount at the rate per annum
prescribed by
section 5703.47 of the Revised Code from the date
prescribed for
payment of the tax until it is paid or until the day an
assessment
is issued under section 5728.10 of the Revised Code, whichever
occurs first.
Any interest
imposed under this chapter may be
collected through an
assessment
as provided in section 5728.10 of
the Revised Code.
Sec. 5728.10. (A) If any person required to file a
highway
fuel use tax return by sections 5728.01 to 5728.14 of the
Revised
Code,
fails to file the return within the time prescribed
by those
sections, files an incomplete return, files an incorrect
return,
or fails to remit the full amount of the tax due for the
period
covered by the return, the tax commissioner may make an
assessment
against the person, based upon any information in the
commissioner's possession, for the period for which the tax was
due.
No assessment shall be made against any person for any tax
imposed by this chapter more than four years after the
last day
of
the calendar year during
return date for the period for which the
tax was due
or more than four years after the return for the
period was filed, whichever is later. This section
does
not bar
an assessment against any person who fails to file a
highway
fuel
use tax return as required by this chapter, or who files
a
fraudulent
highway
fuel use tax return.
A penalty of up to fifteen per cent may be added to the amount of every assessment made pursuant to this section. The commissioner may adopt rules providing for the imposition and remission of penalties added to assessments made under this section.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days
after
service of the notice of assessment, either personally
or by
certified mail, a
written petition for reassessment
in
writing, signed by
the party assessed, or by the party's
authorized agent
having
knowledge
of the facts, the assessment
shall become
becomes final and
the
amount of the assessment
shall
be
is due and payable from the party
assessed to the treasurer of
state. The petition shall indicate
the objections of the party
assessed, but additional objections
may be raised in writing if
received
by the commissioner prior to the date shown on
the final
determination
by the commissioner.
Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve
a
copy of the commissioner's final determination on
the petitioner
by personal service or
certified mail, and the commissioner's
decision in the
matter shall be final,
subject to appeal as
provided in section 5717.02 of the Revised
Code. Only objections
decided on the merits by the board of tax
appeals or a court shall
be given collateral estoppel or res
judicata effect in considering
an application for refund of
amounts paid pursuant to the
assessment.
If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the party's place of business is located or the county in which the party assessed resides. If the party maintains no office in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state of Ohio
against the party assessed
in the amount shown on the entry. The
judgment may be filed by
the clerk in a loose-leaf book entitled
"special judgments for
state
highway
fuel use tax," and shall have
the same effect as
other
judgments. Execution shall issue upon
the judgment upon
the
request of the
tax commissioner, and all
laws applicable to
sales
on execution shall apply to sales made
under the judgment.
The portion of the assessment not paid within
sixty days
after the day the assessment was issued shall
bear
interest at the
rate per annum prescribed by section 5703.47 of the
Revised Code
from the day the
tax
commissioner issues the assessment until it
is paid.
Interest shall be paid in the same manner as the tax
and
may be collected by the issuance of an assessment under this
section.
(D) All money collected by the tax commissioner under this section shall be paid into the state treasury in the same manner as the revenues deriving from the taxes imposed by section 5728.06 of the Revised Code.
Sec. 5728.11. (A)
Thirty
Sixty days after service of an
assessment under section 5728.10 of the Revised Code, or when the
tax commissioner files a certified copy of an entry making an
assessment as provided in that section,
he
the commissioner
shall
suspend all
highway
fuel use permits issued to the person against
whom
the
assessment was made, provided that no
highway
fuel use
permit shall
be
suspended while an appeal is pending, except in
those cases in
which no return has been filed, or where it is
alleged a
fraudulent return has been filed.
Upon suspension of a
highway
fuel use permit, the
commissioner may require that the permit holder
shall surrender to
the commissioner the permit and identification
device.
Upon payment in full of the assessment and interest, the
tax
commissioner shall immediately reinstate all
highway
fuel use
permits
issued to the person against whom the assessment was made
which
have been suspended.
(B) If no returns have been filed within the time
prescribed
for the filing of returns, or within any extension of
time for
filing as the
tax commissioner may grant in accordance with
section
5728.14 of the Revised Code, the commissioner, after
giving
written notice of
his
the commissioner's intention so to
do,
immediately may suspend all
highway
fuel use permits held by
the
person
failing
to file a return. The notice shall be sent to
the
last
known
address of the person. No permit which has been
suspended
for
failure to file a return shall be reinstated until
the person
files complete and correct returns for all periods in
which no
return has been filed and paid the full amount of the
tax,
interest, and additional charges due.
Sec. 5728.13.
The provisions of sections
Sections 5728.02 to
5728.12,
inclusive, of the Revised Code, do not apply to motor
vehicles,
commercial cars, or commercial tractors owned and
operated by the
United States,
by this state, or any political
subdivisions thereof,
nor to motor vehicles, commercial cars, or
commercial tractors
owned by nonresidents of this state while
engaged solely in the
interstate transportation of household
goods
in Ohio, provided
such owner has complied with the laws of
the
state, district, or
territory of his residence
pertaining to the
registration and taxation of motor vehicles and complies
with such
laws while operating and driving such motor vehicle upon the
public roads or highways of this state; provided that the owners
of motor vehicles similarly engaged and registered in this state
shall be exempt from all obligations pertaining to the
registration and taxation of motor vehicles in such other states,
districts, or territories. The provisions of this section do not
apply to vehicles, commercial cars, or commercial tractors owned
by nonresidents of this state when operated by a resident under
lease or any other arrangement. The tax commissioner shall be
authorized to determine whether or not such other states,
districts, or territories exempt such Ohio registered vehicles
from all obligations pertaining to the registration and taxation
of such motor vehicles and to prescribe such rules and
regulations
as are required for the purpose of administering the
provisions of
this section.
Household goods means all goods consisting of personal
effects and property used or to be used in a dwelling when a part
of the equipment or supply of such dwellings and furniture,
fixtures, equipment, and the property of stores, offices,
museums,
institutions, hospitals, or other establishments when
part of the
stock, equipment, or supply of such stores, offices,
museums,
institutions, hospitals, or other establishments, and
articles
including objects of art, displays, and exhibits, which
because of
their unusual nature or value require specialized
handling and
equipment usually employed in moving household
goods
or by any
other state or its political subdivisions if that state extends a
similar exemption to motor vehicles, commercial cars, or
commercial tractors owned and operated by this state or its
political subdivisions.
Sec. 5733.021. (A) Each taxpayer
which
that does not in
the
month of January file the report and make the payment required by
section 5733.02 of the Revised Code shall make and file a
declaration of estimated tax report for the tax year.
The declaration of estimated tax report shall be filed with the treasurer of state on or before the last day of January in such form as prescribed by the tax commissioner, and shall reflect an estimate of the total amount due under this chapter for the tax year.
(B) A taxpayer required to file a declaration of estimated tax report shall make remittance of such estimated tax to the treasurer of state as follows:
(1) The entire estimated tax at the time of filing the declaration of estimated tax report, if such estimated tax is not in excess of the minimum tax as provided in section 5733.06 of the Revised Code;
(2) If the estimated tax is in excess of the minimum tax:
(a) One-third of the estimated tax at the time of filing the declaration of estimated tax report;
(b) Two-thirds of the estimated tax on or before the last
day of March of the tax year,
unless
if the report
and payment
required by section 5733.02 of the Revised Code is filed
and paid
on or before the last day of March of the tax year;.
(3) If the estimated tax
due is in excess of the minimum
tax, and an extension of time for filing the report required by
section 5733.02 of the Revised Code has been granted pursuant to
section 5733.13 of the Revised Code;:
(a) One-third of the estimated tax at the time of filing the declaration of estimated tax report;
(b) One-third of the estimated tax on or before the last day of March of the tax year;
(c) One-third of the estimated tax on or before the last
day
of May of the tax year, unless the report and payments
required by
section 5733.02 of the Revised Code are filed and
paid on or
before the last day of May of the tax year.
Remittance of the estimated tax shall be made in the form prescribed by the treasurer of state, including electronic funds transfer if required by section 5733.022 of the Revised Code.
The treasurer of state shall credit all payments of such estimated tax as provided in section 5733.12 of the Revised Code, shall show on all reports the date each was filed and the amount of payment remitted, and shall immediately transmit all reports filed under this section to the tax commissioner.
(C)(1) For any period of delinquency ending prior to the first day of June of the tax year:
(a) The penalty under division (A)(2) of section 5733.28 of the Revised Code may only be imposed on the delinquent portion of the estimated tax required to be paid under divisions (B)(2)(a) and (b) and (B)(3)(a) and (b) of this section.
(b) The interest under section 5733.26 of the Revised Code shall only be imposed on the delinquent portion of estimated tax required to be paid under divisions (B)(2)(a), (B)(2)(b), (B)(3)(a), and (B)(3)(b) of this section.
(c) If the taxpayer was not subject to tax for the immediately preceding tax year, "estimated tax" for purposes of division (C)(1) of this section is ninety per cent of the qualifying tax for the current tax year. If the taxpayer was subject to the tax for the immediately preceding tax year, "estimated tax" for purposes of division (C)(1) of this section is the lesser of one hundred per cent of the qualifying net tax for the immediately preceding tax year or ninety per cent of the qualifying net tax for the current tax year.
(2) For any period of delinquency commencing the first day of June of the tax year and concluding on the extended due date pursuant to section 5733.13 of the Revised Code:
(a) The penalty under division (A)(2) of section 5733.28 of the Revised Code may only be imposed on the delinquent portion of the estimated tax required to be paid under division (B)(3)(c) of this section.
(b) The interest under section 5733.26 of the Revised Code shall be imposed on the delinquent portion of the amount in division (C)(3)(a) of this section for the current tax year.
(c) For purposes of division (C)(2) of this section, "estimated tax" is ninety per cent of the qualifying net tax for the current tax year.
(3) If the taxpayer did not file a report under section 5733.02 of the Revised Code for the tax year or failed to prepare and file the report in good faith for the tax year, "qualifying net tax" as used in division (C) of this section for that tax year means the amount described in division (C)(3)(a) of this division. Otherwise, "qualifying net tax" as used in division (C) of this section for that tax year means the lesser of the amount described in division (C)(3)(a) or (b) of this section:
(a) The tax imposed by sections 5733.06, 5733.065, and 5733.066 of the Revised Code for that tax year reduced by the credits listed in section 5733.98 of the Revised Code. If the credits exceed the total tax, the qualifying net tax is zero.
(b) The lesser of the tax shown on the report, reduced by the credits shown on that report, or the tax shown on an amended report prepared and filed in good faith, reduced by the credits shown on that amended report. If the credits shown exceed the total tax shown, the qualifying net tax is zero.
Sec. 5733.04. As used in this chapter:
(A) "Issued and outstanding shares of stock" applies to nonprofit corporations, as provided in section 5733.01 of the Revised Code, and includes, but is not limited to, membership certificates and other instruments evidencing ownership of an interest in such nonprofit corporations, and with respect to a financial institution that does not have capital stock, "issued and outstanding shares of stock" includes, but is not limited to, ownership interests of depositors in the capital employed in such an institution.
(B) "Taxpayer" means a corporation subject to the tax imposed by section 5733.06 of the Revised Code.
(C) "Resident" means a corporation organized under the laws of this state.
(D) "Commercial domicile" means the principal place from which the trade or business of the taxpayer is directed or managed.
(E) "Taxable year" means the period prescribed by division (A) of section 5733.031 of the Revised Code upon the net income of which the value of the taxpayer's issued and outstanding shares of stock is determined under division (B) of section 5733.05 of the Revised Code or the period prescribed by division (A) of section 5733.031 of the Revised Code that immediately precedes the date as of which the total value of the corporation is determined under division (A) or (C) of section 5733.05 of the Revised Code.
(F) "Tax year" means the calendar year in and for which the tax imposed by section 5733.06 of the Revised Code is required to be paid.
(G) "Internal Revenue Code" means the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended.
(H) "Federal income tax" means the income tax imposed by the Internal Revenue Code.
(I) Except as provided in section 5733.058 of the Revised Code, "net income" means the taxpayer's taxable income before operating loss deduction and special deductions, as required to be reported for the taxpayer's taxable year under the Internal Revenue Code, subject to the following adjustments:
(1)(a) Deduct any net operating loss incurred in any taxable years ending in 1971 or thereafter but exclusive of any net operating loss incurred in taxable years ending prior to January 1, 1971. This deduction shall not be allowed in any tax year commencing before December 31, 1973, but shall be carried over and allowed in tax years commencing after December 31, 1973, until fully utilized in the next succeeding taxable year or years in which the taxpayer has net income, but in no case for more than the designated carryover period as described in division (I)(1)(b) of this section. The amount of such net operating loss, as determined under the allocation and apportionment provisions of section 5733.051 and division (B) of section 5733.05 of the Revised Code for the year in which the net operating loss occurs, shall be deducted from net income, as determined under the allocation and apportionment provisions of section 5733.051 and division (B) of section 5733.05 of the Revised Code, to the extent necessary to reduce net income to zero with the remaining unused portion of the deduction, if any, carried forward to the remaining years of the designated carryover period as described in division (I)(1)(b) of this section, or until fully utilized, whichever occurs first.
(b) For losses incurred in taxable years ending on or before December 31, 1981, the designated carryover period shall be the five consecutive taxable years after the taxable year in which the net operating loss occurred. For losses incurred in taxable years ending on or after January 1, 1982, and beginning before August 6, 1997, the designated carryover period shall be the fifteen consecutive taxable years after the taxable year in which the net operating loss occurs. For losses incurred in taxable years beginning on or after August 6, 1997, the designated carryover period shall be the twenty consecutive taxable years after the taxable year in which the net operating loss occurs.
(c) The tax commissioner may require a taxpayer to furnish any information necessary to support a claim for deduction under division (I)(1)(a) of this section and no deduction shall be allowed unless the information is furnished.
(2) Deduct any amount included in net income by application of section 78 or 951 of the Internal Revenue Code, amounts received for royalties, technical or other services derived from sources outside the United States, and dividends received from a subsidiary, associate, or affiliated corporation that neither transacts any substantial portion of its business nor regularly maintains any substantial portion of its assets within the United States. For purposes of determining net foreign source income deductible under division (I)(2) of this section, the amount of gross income from all such sources other than income derived by application of section 78 or 951 of the Internal Revenue Code shall be reduced by:
(a) The amount of any reimbursed expenses for personal services performed by employees of the taxpayer for the subsidiary, associate, or affiliated corporation;
(b) Ten per cent of the amount of royalty income and technical assistance fees;
(c) Fifteen per cent of the amount of dividends and all other income.
The amounts described in divisions (I)(2)(a) to (c) of this section are deemed to be the expenses attributable to the production of deductible foreign source income unless the taxpayer shows, by clear and convincing evidence, less actual expenses, or the tax commissioner shows, by clear and convincing evidence, more actual expenses.
(3) Add any loss or deduct any gain resulting from the sale, exchange, or other disposition of a capital asset, or an asset described in section 1231 of the Internal Revenue Code, to the extent that such loss or gain occurred prior to the first taxable year on which the tax provided for in section 5733.06 of the Revised Code is computed on the corporation's net income. For purposes of division (I)(3) of this section, the amount of the prior loss or gain shall be measured by the difference between the original cost or other basis of the asset and the fair market value as of the beginning of the first taxable year on which the tax provided for in section 5733.06 of the Revised Code is computed on the corporation's net income. At the option of the taxpayer, the amount of the prior loss or gain may be a percentage of the gain or loss, which percentage shall be determined by multiplying the gain or loss by a fraction, the numerator of which is the number of months from the acquisition of the asset to the beginning of the first taxable year on which the fee provided in section 5733.06 of the Revised Code is computed on the corporation's net income, and the denominator of which is the number of months from the acquisition of the asset to the sale, exchange, or other disposition of the asset. The adjustments described in this division do not apply to any gain or loss where the gain or loss is recognized by a qualifying taxpayer, as defined in section 5733.0510 of the Revised Code, with respect to a qualifying taxable event, as defined in that section.
(4) Deduct the dividend received deduction provided by section 243 of the Internal Revenue Code.
(5) Deduct any interest or interest equivalent on public obligations and purchase obligations to the extent included in federal taxable income. As used in divisions (I)(5) and (6) of this section, "public obligations," "purchase obligations," and "interest or interest equivalent" have the same meanings as in section 5709.76 of the Revised Code.
(6) Add any loss or deduct any gain resulting from the sale, exchange, or other disposition of public obligations to the extent included in federal taxable income.
(7) To the extent not otherwise allowed, deduct any dividends or distributions received by a taxpayer from a public utility, excluding an electric company, if the taxpayer owns at least eighty per cent of the issued and outstanding common stock of the public utility. As used in division (I)(7) of this section, "public utility" means a public utility as defined in Chapter 5727. of the Revised Code, whether or not the public utility is doing business in the state.
(8) To the extent not otherwise allowed, deduct any dividends received by a taxpayer from an insurance company, if the taxpayer owns at least eighty per cent of the issued and outstanding common stock of the insurance company. As used in division (I)(8) of this section, "insurance company" means an insurance company that is taxable under Chapter 5725. or 5729. of the Revised Code.
(9) Deduct expenditures for modifying existing buildings or structures to meet American national standards institute standard A-117.1-1961 (R-1971), as amended; provided, that no deduction shall be allowed to the extent that such deduction is not permitted under federal law or under rules of the tax commissioner. Those deductions as are allowed may be taken over a period of five years. The tax commissioner shall adopt rules under Chapter 119. of the Revised Code establishing reasonable limitations on the extent that expenditures for modifying existing buildings or structures are attributable to the purpose of making the buildings or structures accessible to and usable by physically handicapped persons.
(10) Deduct the amount of wages and salaries, if any, not otherwise allowable as a deduction but that would have been allowable as a deduction in computing federal taxable income before operating loss deduction and special deductions for the taxable year, had the targeted jobs credit allowed and determined under sections 38, 51, and 52 of the Internal Revenue Code not been in effect.
(11) Deduct net interest income on obligations of the United States and its territories and possessions or of any authority, commission, or instrumentality of the United States to the extent the laws of the United States prohibit inclusion of the net interest for purposes of determining the value of the taxpayer's issued and outstanding shares of stock under division (B) of section 5733.05 of the Revised Code. As used in division (I)(11) of this section, "net interest" means interest net of any expenses taken on the federal income tax return that would not have been allowed under section 265 of the Internal Revenue Code if the interest were exempt from federal income tax.
(12)(a) Except as set forth in division (I)(12)(d) of this section, to the extent not included in computing the taxpayer's federal taxable income before operating loss deduction and special deductions, add gains and deduct losses from direct or indirect sales, exchanges, or other dispositions, made by a related entity who is not a taxpayer, of the taxpayer's indirect, beneficial, or constructive investment in the stock or debt of another entity, unless the gain or loss has been included in computing the federal taxable income before operating loss deduction and special deductions of another taxpayer with a more closely related investment in the stock or debt of the other entity. The amount of gain added or loss deducted shall not exceed the product obtained by multiplying such gain or loss by the taxpayer's proportionate share, directly, indirectly, beneficially, or constructively, of the outstanding stock of the related entity immediately prior to the direct or indirect sale, exchange, or other disposition.
(b) Except as set forth in division (I)(12)(e) of this section, to the extent not included in computing the taxpayer's federal taxable income before operating loss deduction and special deductions, add gains and deduct losses from direct or indirect sales, exchanges, or other dispositions made by a related entity who is not a taxpayer, of intangible property other than stock, securities, and debt, if such property was owned, or used in whole or in part, at any time prior to or at the time of the sale, exchange, or disposition by either the taxpayer or by a related entity that was a taxpayer at any time during the related entity's ownership or use of such property, unless the gain or loss has been included in computing the federal taxable income before operating loss deduction and special deductions of another taxpayer with a more closely related ownership or use of such intangible property. The amount of gain added or loss deducted shall not exceed the product obtained by multiplying such gain or loss by the taxpayer's proportionate share, directly, indirectly, beneficially, or constructively, of the outstanding stock of the related entity immediately prior to the direct or indirect sale, exchange, or other disposition.
(c) As used in division (I)(12) of this section, "related entity" means those entities described in divisions (I)(12)(c)(i) to (iii) of this section:
(i) An individual stockholder, or a member of the stockholder's family enumerated in section 318 of the Internal Revenue Code, if the stockholder and the members of the stockholder's family own, directly, indirectly, beneficially, or constructively, in the aggregate, at least fifty per cent of the value of the taxpayer's outstanding stock;
(ii) A stockholder, or a stockholder's partnership, estate, trust, or corporation, if the stockholder and the stockholder's partnerships, estates, trusts, and corporations own directly, indirectly, beneficially, or constructively, in the aggregate, at least fifty per cent of the value of the taxpayer's outstanding stock;
(iii) A corporation, or a party related to the corporation in a manner that would require an attribution of stock from the corporation to the party or from the party to the corporation under division (I)(12)(c)(iv) of this section, if the taxpayer owns, directly, indirectly, beneficially, or constructively, at least fifty per cent of the value of the corporation's outstanding stock.
(iv) The attribution rules of section 318 of the Internal Revenue Code apply for purposes of determining whether the ownership requirements in divisions (I)(12)(c)(i) to (iii) of this section have been met.
(d) For purposes of the adjustments required by division (I)(12)(a) of this section, the term "investment in the stock or debt of another entity" means only those investments where the taxpayer and the taxpayer's related entities directly, indirectly, beneficially, or constructively own, in the aggregate, at any time during the twenty-four month period commencing one year prior to the direct or indirect sale, exchange, or other disposition of such investment at least fifty per cent or more of the value of either the outstanding stock or such debt of such other entity.
(e) For purposes of the adjustments required by division (I)(12)(b) of this section, the term "related entity" excludes all of the following:
(i) Foreign corporations as defined in section 7701 of the Internal Revenue Code;
(ii) Foreign partnerships as defined in section 7701 of the Internal Revenue Code;
(iii) Corporations, partnerships, estates, and trusts created or organized in or under the laws of the Commonwealth of Puerto Rico or any possession of the United States;
(iv) Foreign estates and foreign trusts as defined in section 7701 of the Internal Revenue Code.
The exclusions described in divisions (I)(12)(e)(i) to (iv) of this section do not apply if the corporation, partnership, estate, or trust is described in any one of divisions (C)(1) to (5) of section 5733.042 of the Revised Code.
(f) Nothing in division (I)(12) of this section shall require or permit a taxpayer to add any gains or deduct any losses described in divisions (I)(12)(f)(i) and (ii) of this section:
(i) Gains or losses recognized for federal income tax purposes by an individual, estate, or trust without regard to the attribution rules described in division (I)(12)(c) of this section;
(ii) A related entity's gains or losses described in division (I)(12)(b) if the taxpayer's ownership of or use of such intangible property was limited to a period not exceeding nine months and was attributable to a transaction or a series of transactions executed in accordance with the election or elections made by the taxpayer or a related entity pursuant to section 338 of the Internal Revenue Code.
(13) Any adjustment required by section 5733.042 of the Revised Code.
(14) Add any amount claimed as a credit under section 5733.0611 of the Revised Code to the extent that such amount satisfies either of the following:
(a) It was deducted or excluded from the computation of the corporation's taxable income before operating loss deduction and special deductions as required to be reported for the corporation's taxable year under the Internal Revenue Code;
(b) It resulted in a reduction of the corporation's taxable income before operating loss deduction and special deductions as required to be reported for any of the corporation's taxable years under the Internal Revenue Code.
(15) Deduct the amount contributed by the taxpayer to an individual development account program established by a county department of job and family services pursuant to sections 329.11 to 329.14 of the Revised Code for the purpose of matching funds deposited by program participants. On request of the tax commissioner, the taxpayer shall provide any information that, in the tax commissioner's opinion, is necessary to establish the amount deducted under division (I)(15) of this section.
(16) Any adjustment required by section 5733.0510 of the Revised Code.
(J) Any term used in this chapter has the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes unless a different meaning is clearly required. Any reference in this chapter to the Internal Revenue Code includes other laws of the United States relating to federal income taxes.
(K) "Financial institution" has the meaning given by section 5725.01 of the Revised Code but does not include a production credit association as described in 85 Stat. 597, 12 U.S.C.A. 2091.
(L)(1) A "qualifying holding company" is any corporation satisfying all of the following requirements:
(a) Subject to divisions (L)(2) and (3) of this section, the net book value of the corporation's intangible assets is greater than or equal to ninety per cent of the net book value of all of its assets and at least fifty per cent of the net book value of all of its assets represents direct or indirect investments in the equity of, loans and advances to, and accounts receivable due from related members;
(b) At least ninety per cent of the corporation's gross income for the taxable year is attributable to the following:
(i) The maintenance, management, ownership, acquisition, use, and disposition of its intangible property, its aircraft the use of which is not subject to regulation under 14 C.F.R. part 121 or part 135, and any real property described in division (L)(2)(c) of this section;
(ii) The collection and distribution of income from such property.
(c) The corporation is not a financial institution on the last day of the taxable year ending prior to the first day of the tax year;
(d) The corporation's related members make a good faith and reasonable effort to make timely and fully the adjustments required by division (C)(2) of section 5733.05 of the Revised Code and to pay timely and fully all uncontested taxes, interest, penalties, and other fees and charges imposed under this chapter;
(e) Subject to division (L)(4) of this section, the corporation elects to be treated as a qualifying holding company for the tax year.
A corporation otherwise satisfying divisions (L)(1)(a) to (e) of this section that does not elect to be a qualifying holding company is not a qualifying holding company for the purposes of this chapter.
(2)(a)(i) For purposes of making the ninety per cent computation under division (L)(1)(a) of this section, the net book value of the corporation's assets shall not include the net book value of aircraft or real property described in division (L)(1)(b)(i) of this section.
(ii) For purposes of making the fifty per cent computation under division (L)(1)(a) of this section, the net book value of assets shall include the net book value of aircraft or real property described in division (L)(1)(b)(i) of this section.
(b)(i) As used in division (L) of this section, "intangible asset" includes, but is not limited to, the corporation's direct interest in each pass-through entity only if at all times during the corporation's taxable year ending prior to the first day of the tax year the corporation's and the corporation's related members' combined direct and indirect interests in the capital or profits of such pass-through entity do not exceed fifty per cent. If the corporation's interest in the pass-through entity is an intangible asset for that taxable year, then the distributive share of any income from the pass-through entity shall be income from an intangible asset for that taxable year.
(ii) If a corporation's and the corporation's related members' combined direct and indirect interests in the capital or profits of a pass-through entity exceed fifty per cent at any time during the corporation's taxable year ending prior to the first day of the tax year, "intangible asset" does not include the corporation's direct interest in the pass-through entity, and the corporation shall include in its assets its proportionate share of the assets of any such pass-through entity and shall include in its gross income its distributive share of the gross income of such pass-through entity in the same form as was earned by the pass-through entity.
(iii) A pass-through entity's direct or indirect proportionate share of any other pass-through entity's assets shall be included for the purpose of computing the corporation's proportionate share of the pass-through entity's assets under division (L)(2)(b)(ii) of this section, and such pass-through entity's distributive share of any other pass-through entity's gross income shall be included for purposes of computing the corporation's distributive share of the pass-through entity's gross income under division (L)(2)(b)(ii) of this section.
(c) For the purposes of divisions (L)(1)(b)(i), (1)(b)(ii), (2)(a)(i), and (2)(a)(ii) of this section, real property is described in division (L)(2)(c) of this section only if all of the following conditions are present at all times during the taxable year ending prior to the first day of the tax year:
(i) The real property serves as the headquarters of the corporation's trade or business, or is the place from which the corporation's trade or business is principally managed or directed;
(ii) Not more than ten per cent of the value of the real property and not more than ten per cent of the square footage of the building or buildings that are part of the real property is used, made available, or occupied for the purpose of providing, acquiring, transferring, selling, or disposing of tangible property or services in the normal course of business to persons other than related members, the corporation's employees and their families, and such related members' employees and their families.
(d) As used in division (L) of this section, "related member" has the same meaning as in division (A)(6) of section 5733.042 of the Revised Code without regard to division (B) of that section.
(3) The percentages described in division (L)(1)(a) of this section shall be equal to the quarterly average of those percentages as calculated during the corporation's taxable year ending prior to the first day of the tax year.
(4) With respect to the election described in division (L)(1)(e) of this section:
(a) The election need not accompany a timely filed report;
(b) The election need not accompany the report; rather, the election may accompany a subsequently filed but timely application for refund and timely amended report, or a subsequently filed but timely petition for reassessment;
(c) The election is not irrevocable;
(d) The election applies only to the tax year specified by the corporation;
(e) The corporation's related members comply with division (L)(1)(d) of this section.
Nothing in division (L)(4) of this section shall be construed to extend any statute of limitations set forth in this chapter.
(M) "Qualifying controlled group" means two or more corporations that satisfy the ownership and control requirements of division (A) of section 5733.052 of the Revised Code.
(N) "Limited liability company" means any limited liability company formed under Chapter 1705. of the Revised Code or under the laws of any other state.
(O) "Pass-through entity" means a corporation that has made an election under subchapter S of Chapter 1 of Subtitle A of the Internal Revenue Code for its taxable year under that code, or a partnership, limited liability company, or any other person, other than an individual, trust, or estate, if the partnership, limited liability company, or other person is not classified for federal income tax purposes as an association taxed as a corporation.
(P) "Electric company" and "combined company" have the same meanings as in section 5727.01 of the Revised Code.
Sec. 5733.05. As used in this section, "qualified research" means laboratory research, experimental research, and other similar types of research; research in developing or improving a product; or research in developing or improving the means of producing a product. It does not include market research, consumer surveys, efficiency surveys, management studies, ordinary testing or inspection of materials or products for quality control, historical research, or literary research. "Product" as used in this paragraph does not include services or intangible property.
The annual report determines the value of the issued and outstanding shares of stock of the taxpayer, which under division (A) or divisions (B) and (C) of this section is the base or measure of the franchise tax liability. Such determination shall be made as of the date shown by the report to have been the beginning of the corporation's annual accounting period that includes the first day of January of the tax year. For the purposes of this chapter, the value of the issued and outstanding shares of stock of any corporation that is a financial institution shall be deemed to be the value as calculated in accordance with division (A) of this section. For the purposes of this chapter, the value of the issued and outstanding shares of stock of any corporation that is not a financial institution shall be deemed to be the values as calculated in accordance with divisions (B) and (C) of this section. Except as otherwise required by this section or section 5733.056 of the Revised Code, the value of a taxpayer's issued and outstanding shares of stock under division (A) or (C) of this section does not include any amount that is treated as a liability under generally accepted accounting principles.
(A) The total value, as shown by the books of the financial institution, of its capital, surplus, whether earned or unearned, undivided profits, and reserves shall be determined as prescribed by section 5733.056 of the Revised Code for tax years 1998 and thereafter.
(B) The sum of the corporation's net income during the corporation's taxable year, allocated or apportioned to this state as prescribed in divisions (B)(1) and (2) of this section, and subject to sections 5733.052, 5733.053, 5733.057, 5733.058, 5733.059, and 5733.0510 of the Revised Code:
(1) The net income allocated to this state as provided by section 5733.051 of the Revised Code.
(2) The amount of Ohio apportioned net income from sources other than those allocated under section 5733.051 of the Revised Code, which shall be determined by multiplying the corporation's net income by a fraction. The numerator of the fraction is the sum of the following products: the property factor multiplied by twenty, the payroll factor multiplied by twenty, and the sales factor multiplied by sixty. The denominator of the fraction is one hundred, provided that the denominator shall be reduced by twenty if the property factor has a denominator of zero, by twenty if the payroll factor has a denominator of zero, and by sixty if the sales factor has a denominator of zero.
The property, payroll, and sales factors shall be determined as follows:
(a) The property factor is a fraction the numerator of which is the average value of the corporation's real and tangible personal property owned or rented, and used in the trade or business in this state during the taxable year, and the denominator of which is the average value of all the corporation's real and tangible personal property owned or rented, and used in the trade or business everywhere during such year. There shall be excluded from the numerator and denominator of the property factor the original cost of all of the following property within Ohio: property with respect to which a "pollution control facility" certificate has been issued pursuant to section 5709.21 of the Revised Code; property with respect to which an "industrial water pollution control certificate" has been issued pursuant to section 6111.31 of the Revised Code; and property used exclusively during the taxable year for qualified research.
(i) Property owned by the corporation is valued at its original cost. Property rented by the corporation is valued at eight times the net annual rental rate. "Net annual rental rate" means the annual rental rate paid by the corporation less any annual rental rate received by the corporation from subrentals.
(ii) The average value of property shall be determined by averaging the values at the beginning and the end of the taxable year, but the tax commissioner may require the averaging of monthly values during the taxable year, if reasonably required to reflect properly the average value of the corporation's property.
(b) The payroll factor is a fraction the numerator of which is the total amount paid in this state during the taxable year by the corporation for compensation, and the denominator of which is the total compensation paid everywhere by the corporation during such year. There shall be excluded from the numerator and the denominator of the payroll factor the total compensation paid in this state to employees who are primarily engaged in qualified research.
(i) Compensation means any form of remuneration paid to an employee for personal services.
(ii) Compensation is paid in this state if: (1) the recipient's service is performed entirely within this state, (2) the recipient's service is performed both within and without this state, but the service performed without this state is incidental to the recipient's service within this state, (3) some of the service is performed within this state and either the base of operations, or if there is no base of operations, the place from which the service is directed or controlled is within this state, or the base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the recipient's residence is in this state.
(iii) Compensation is paid in this state to any employee of a common or contract motor carrier corporation, who performs the employee's regularly assigned duties on a motor vehicle in more than one state, in the same ratio by which the mileage traveled by such employee within the state bears to the total mileage traveled by such employee everywhere during the taxable year.
(c) Except as provided in section 5733.059 of the Revised Code, the sales factor is a fraction the numerator of which is the total sales in this state by the corporation during the taxable year, and the denominator of which is the total sales by the corporation everywhere during such year. In determining the numerator and denominator of the sales factor, receipts from the sale or other disposal of a capital asset or an asset described in section 1231 of the Internal Revenue Code shall be eliminated. Also, in determining the numerator and denominator of the sales factor, in the case of a reporting corporation owning at least eighty per cent of the issued and outstanding common stock of one or more insurance companies or public utilities, except an electric company, or owning at least twenty-five per cent of the issued and outstanding common stock of one or more financial institutions, receipts received by the reporting corporation from such utilities, insurance companies, and financial institutions shall be eliminated.
For the purpose of this section and section 5733.03 of the Revised Code, sales of tangible personal property are in this state where such property is received in this state by the purchaser. In the case of delivery of tangible personal property by common carrier or by other means of transportation, the place at which such property is ultimately received after all transportation has been completed shall be considered as the place at which such property is received by the purchaser. Direct delivery in this state, other than for purposes of transportation, to a person or firm designated by a purchaser constitutes delivery to the purchaser in this state, and direct delivery outside this state to a person or firm designated by a purchaser does not constitute delivery to the purchaser in this state, regardless of where title passes or other conditions of sale.
Except as provided in section 5733.059 of the Revised Code, sales, other than sales of tangible personal property, are in this state if either:
(i) The income-producing activity is performed solely in this state;
(ii) The income-producing activity is performed both within and without this state and a greater proportion of the income-producing activity is performed within this state than in any other state, based on costs of performance.
(d) If the allocation and apportionment provisions of division (B) of this section do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may request, which request must be in writing and must accompany the report, timely filed petition for reassessment, or timely filed amended report, or the tax commissioner may require, in respect to all or any part of the taxpayer's allocated or apportioned base, if reasonable, any one or more of the following:
(i) Separate accounting;
(ii) The exclusion of any one or more of the factors;
(iii) The inclusion of one or more additional factors that will fairly represent the taxpayer's allocated or apportioned base in this state.
An alternative method will be effective only with approval by the tax commissioner.
Nothing in this section shall be construed to extend any statute of limitations set forth in this chapter.
(C)(1) Subject to divisions (C)(2) and (3) of this section, the total value, as shown on the books of each corporation that is not a qualified holding company, of the net book value of a corporation's assets less the net carrying value of its liabilities, and excluding from the corporation's assets land devoted exclusively to agricultural use as of the first Monday of June in the corporation's taxable year as determined by the county auditor of the county in which the land is located pursuant to section 5713.31 of the Revised Code. For the purposes of determining that total value, any reserves shown on the corporation's books shall be considered liabilities or contra assets, except for any reserves that are deemed appropriations of retained earnings under generally accepted accounting principles.
(2)(a) If, on the last day of the taxpayer's taxable year preceding the tax year, the taxpayer is a related member to a corporation that elects to be a qualifying holding company for the tax year beginning after the last day of the taxpayer's taxable year, or if, on the last day of the taxpayer's taxable year preceding the tax year, a corporation that elects to be a qualifying holding company for the tax year beginning after the last day of the taxpayer's taxable year is a related member to the taxpayer, then the taxpayer's total value shall be adjusted by the qualifying amount. Except as otherwise provided under division (C)(2)(b) of this section, "qualifying amount" means the amount that, when added to the taxpayer's total value, and when subtracted from the net carrying value of the taxpayer's liabilities computed without regard to division (C)(2) of this section, or when subtracted from the taxpayer's total value and when added to the net carrying value of the taxpayer's liabilities computed without regard to division (C)(2) of this section, results in the taxpayer's debt-to-equity ratio equaling the debt-to-equity ratio of the qualifying controlled group on the last day of the taxable year ending prior to the first day of the tax year computed on a consolidated basis in accordance with general accepted accounting principles. For the purposes of division (C)(2)(a) of this section, the corporation's total value, after the adjustment required by that division, shall not exceed the net book value of the corporation's assets.
(b)(i) The amount added to the taxpayer's total value and subtracted from the net carrying value of the taxpayer's liabilities shall not exceed the amount of the net carrying value of the taxpayer's liabilities owed to the taxpayer's related members.
(ii) A liability owed to the taxpayer's related members includes, but is not limited to, any amount that the corporation owes to a person that is not a related member if the corporation's related member or related members in whole or in part guarantee any portion or all of that amount, or pledge, hypothecate, mortgage, or carry out any similar transactions to secure any portion or all of that amount.
(3) The base upon which the tax is levied under division (C) of section 5733.06 of the Revised Code shall be computed by multiplying the amount determined under divisions (C)(1) and (2) of this section by the fraction determined under divisions (B)(2)(a) to (c) of this section and, if applicable, divisions (B)(2)(d)(ii) to (iv) of this section but without regard to section 5733.052 of the Revised Code.
(4) For purposes of division (C) of this section, "related member" has the same meaning as in division (A)(6) of section 5733.042 of the Revised Code without regard to division (B) of that section.
Sec. 5733.11. (A) If any corporation required to file a report under this chapter fails to file the report within the time prescribed, files an incorrect report, or fails to remit the full amount of the tax due for the period covered by the report, the tax commissioner may make an assessment against the corporation for any deficiency for the period for which the report or tax is due, based upon any information in the commissioner's possession.
No assessment shall be made or issued against a corporation more than three years after the later of the final date the report subject to assessment was required to be filed or the date the report was filed. Such time limit may be extended if both the corporation and the commissioner consent in writing to the extension or if an agreement waiving or extending the time limit has been entered into pursuant to section 122.171 of the Revised Code. Any such extension shall extend the three-year time limit in division (B) of section 5733.12 of the Revised Code for the same period of time. There shall be no bar or limit to an assessment against a corporation that fails to file a report subject to assessment as required by this chapter, or that files a fraudulent report.
The commissioner shall give the corporation assessed
written
notice of the assessment
as
in the manner provided in section
5703.37 of the
Revised Code.
With the notice, the commissioner
shall provide instructions on how to petition for reassessment and
request a hearing on the petition.
(B) Unless the corporation
to which the notice of
assessment
is directed
assessed files with the
tax commissioner within
sixty
days after
service
thereof
of the notice of assessment, either
personally or by certified
mail
as
provided in section 5703.056 of
the Revised Code, a
written petition for
reassessment
in
writing,
signed by the
corporations authorized agent
of the
corporation
assessed having knowledge of
the facts,
and makes
payment of the
portion of the assessment
required by division (E)
of this
section, the assessment
shall
become
becomes final, and the amount
of the assessment
shall
be
is due
and payable from the corporation
assessed to the treasurer of
state. The petition shall indicate
the corporation's objections,
but additional objections may be
raised in writing if received
by the commissioner prior to the
date shown on the final
determination
by the
commissioner.
Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a
copy of the final determination on the petitioner by
personal
service or by
certified mail, and the commissioner's decision in
the
matter shall be final,
subject to appeal as provided in
section 5717.02 of the Revised
Code. Only objections decided on
the merits by the board of tax
appeals or a court shall be given
collateral estoppel or res
judicata effect in considering an
application for refund of
amounts paid pursuant to the assessment.
If the petition has been properly filed, the commissioner shall
proceed under section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the corporation has an office or place of business in this state, the county in which the corporation's statutory agent is located, or Franklin county.
Immediately upon the filing of the entry, the clerk shall enter a judgment against the corporation assessed in the amount shown on the entry. The judgment may be filed by the clerk in a loose-leaf book entitled "special judgments for state corporate franchise and litter taxes," and shall have the same effect as other judgments. Execution shall issue upon the judgment upon the request of the tax commissioner, and all laws applicable to sales on execution shall apply to sales made under the judgment.
The portion of an assessment not paid within sixty days after the day the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until the assessment is paid. Interest shall be paid in the same manner as the tax and may be collected by issuing an assessment under this section.
(D) All money collected under this section shall be considered as revenue arising from the taxes imposed by this chapter.
(E) The portion of an assessment
which
that must be paid
upon
the
filing of a petition for reassessment shall be as
follows:
(1) If the sole item objected to is the assessed penalty or interest, payment of the assessment, including interest but not penalty, is required;
(2) If the corporation assessed failed to file, prior to the date of issuance of the assessment, the annual report required by section 5733.02 of the Revised Code, any amended report required by division (C) of section 5733.031 of the Revised Code for the tax year at issue, or any amended report required by division (D) of section 5733.067 of the Revised Code to indicate a reduction in the amount of the credit provided under that section, payment of the assessment, including interest but not penalty, is required;
(3) If the corporation assessed filed, prior to the date of issuance of the assessment, the annual report required by section 5733.02 of the Revised Code, all amended reports required by division (C) of section 5733.031 of the Revised Code for the tax year at issue, and all amended reports required by division (D) of section 5733.067 of the Revised Code to indicate a reduction in the amount of the credit provided under that section, and a balance of the taxes shown due on the reports as computed on the reports remains unpaid, payment of only that portion of the assessment representing the unpaid balance of tax and interest is required;
(4) If the corporation assessed does not dispute that it is a taxpayer but claims the protections of section 101 of Public Law 86-272, 73 Stat. 555, 15 U.S.C.A. 381, as amended, payment of only that portion of the assessment representing any balance of taxes shown due on the corporation's annual report required by section 5733.02 of the Revised Code, as computed on the report, that remains unpaid, and that represents taxes imposed by division (C) of section 5733.06, division (C)(2) of section 5733.065, and division (C) of section 5733.066 of the Revised Code, together with all related interest, is required;
(5) If none of the conditions specified in divisions (E)(1) to (4) of this section apply, or if the corporation assessed disputes that it is a taxpayer, no payment is required.
(F) Notwithstanding the fact that a petition for reassessment is pending, the corporation may pay all or a portion of the assessment that is the subject of the petition. The acceptance of a payment by the treasurer of state does not prejudice any claim for refund upon final determination of the petition.
If upon final determination of the petition an error in the assessment is corrected by the tax commissioner, upon petition so filed or pursuant to a decision of the board of tax appeals or any court to which the determination or decision has been appealed, so that the amount due from the corporation under the corrected assessment is less than the portion paid, there shall be issued to the corporation, its assigns, or legal representative a refund in the amount of the overpayment as provided by section 5733.12 of the Revised Code, with interest on that amount as provided by section 5733.26 of the Revised Code, subject to section 5733.121 of the Revised Code.
Sec. 5733.12. (A) Four and two-tenths per cent of all payments received by the treasurer of state and by the tax commissioner from the taxes imposed under sections 5733.06 and 5733.41 of the Revised Code shall be credited to the local government fund for distribution in accordance with section 5747.50 of the Revised Code, six-tenths of one per cent shall be credited to the local government revenue assistance fund for distribution in accordance with section 5747.61 of the Revised Code, and ninety-five and two-tenths per cent shall be credited to the general revenue fund.
(B) Except as otherwise provided under divisions (C) and (D) of this section, an application to refund to the corporation the amount of taxes imposed under section 5733.06 of the Revised Code that are overpaid, paid illegally or erroneously, or paid on any illegal, erroneous, or excessive assessment, with interest thereon as provided by section 5733.26 of the Revised Code, shall be filed with the tax commissioner, on the form prescribed by the commissioner, within three years from the date of the illegal, erroneous, or excessive payment of the tax, or within any additional period allowed by division (C)(2) of section 5733.031, division (D)(2) of section 5733.067, or division (A) of section 5733.11 of the Revised Code. For purposes of division (B) of this section, any payment that the applicant made before the due date or extended due date for filing the report to which the payment relates shall be deemed to have been made on the due date or extended due date.
On the filing of the refund application, the commissioner
shall determine the amount
of refund
due and
to which the
applicant is entitled. If the amount is not less than that
claimed,
the commissioner shall certify
such
the amount
to the
director of
budget
and management and treasurer of state
for
payment from the
tax
refund fund created by section 5703.052
of
the Revised Code.
If
the amount is less than that claimed, the
commissioner shall
proceed in accordance with section 5703.70 of
the Revised Code.
(C) "Ninety days" shall be substituted for "three years" in division (B) of this section if the taxpayer satisfies both of the following:
(1) The taxpayer has applied for a refund based in whole or in part upon section 5733.0611 of the Revised Code;
(2) The taxpayer asserts that the imposition or collection of the tax imposed or charged by section 5733.06 of the Revised Code or any portion of such tax violates the Constitution of the United States or the Constitution of this state.
(D)(1) Division (D)(2) of this section applies only if all of the following conditions are satisfied:
(a) A qualifying pass-through entity pays an amount of the tax imposed by section 5733.41 of the Revised Code;
(b) The taxpayer is a qualifying investor as to that qualifying pass-through entity;
(c) The taxpayer did not claim the credit provided for in section 5733.0611 of the Revised Code as to the tax described in division (D)(1)(a) of this section;
(d) The three-year period described in division (B) of this section has ended as to the taxable year for which the taxpayer otherwise would have claimed that credit.
(2) A taxpayer shall file an application for refund pursuant to this division within one year after the date the payment described in division (D)(1)(a) of this section is made. An application filed under this division shall only claim refund of overpayments resulting from the taxpayer's failure to claim the credit described in division (D)(1)(c) of this section. Nothing in this division shall be construed to relieve a taxpayer from complying with the provisions of division (I)(14) of section 5733.04 of the Revised Code.
Sec. 5733.28. (A) In addition to any other penalty imposed by this chapter or Chapter 5703. of the Revised Code, the following penalties shall apply:
(1) If a taxpayer required to file any report, including an informational notice or report, under this chapter fails to make and file the report within the time prescribed, including any extensions of time granted by the tax commissioner, a penalty may be imposed not exceeding the greater of fifty dollars per month or fraction of a month, not to exceed five hundred dollars, or five per cent per month or fraction of a month, not to exceed fifty per cent, of the tax required to be shown on the report, for each month or fraction of a month elapsing between the due date, including extensions of the due date, and the date on which filed.
(2)
If
Except as provided in division (C) of section 5733.021
of the Revised Code, if a taxpayer fails to pay
any
the amount of
tax
required
to
be paid under this chapter,
except
estimated tax
under section
5733.021 of the
Revised Code, by the dates
prescribed
in this chapter for
payment,
a penalty may be imposed
not
exceeding
twice the interest
charged
under division (A) of
section 5733.26
fifteen per cent of
the Revised Code
for the
delinquent payment.
(3)
If a taxpayer fails to pay
any amount of
estimated
tax
required to be paid under section 5733.021 of the Revised Code
by
the dates prescribed for payment, a penalty may
be imposed
not
exceeding twice the interest charged
under division
(A) of section
5733.29 of the Revised Code for the
delinquent payment.
(4) If a taxpayer files what purports to be a report
required by this chapter that does not contain information upon
which the substantial correctness of the report may be judged or
contains information that on its face indicates that the report
is
substantially incorrect, and the filing of the report in that
manner is due to a position that is frivolous or a desire that is
apparent from the report to delay or impede the administration of
the tax levied by this chapter, a penalty of up to five hundred
dollars
may be imposed.
(5)(4) If a taxpayer makes a fraudulent attempt to evade the
reporting or payment of the tax required to be shown on any
report
required under this chapter, a penalty may be
imposed
not
exceeding the greater of one thousand dollars or
one hundred per
cent of the tax required to be shown on the report.
(6)(5) If any person makes a false or fraudulent claim for a
refund under this chapter, a penalty may be imposed
not exceeding
the greater of one thousand dollars or one hundred per cent of
the
claim. The penalty imposed under division (A)(6)(5) of this
section,
any refund issued on the claim, and interest on any
refund from
the date of the refund, may be assessed under section
5733.11 of
the Revised Code as tax, penalty, or interest imposed
under this
chapter without regard to whether the person making
the
claim is
otherwise subject to the provisions of this chapter,
and
without
regard to any time limitation for the assessment
imposed
by
division (A) of section 5733.11 of the Revised Code.
(B) For purposes of this section, the tax required to be shown on the report shall be reduced by the amount of any part of the tax paid on or before the date, including extensions of the date, prescribed for filing the report.
(C) Each penalty imposed under this section shall be in addition to any other penalty provided in this section. All or part of any penalty imposed under this section shall be abated by the commissioner if the taxpayer shows that the failure to comply with the provisions of this chapter is due to reasonable cause and not willful neglect.
Sec. 5735.06. (A) On or before the last day of each month, each motor fuel dealer shall file with the treasurer of state a report for the preceding calendar month, on forms prescribed by or in a form acceptable to the tax commissioner. The report shall include the following information:
(1) An itemized statement of the number of gallons of all motor fuel received during the preceding calendar month by such motor fuel dealer, which has been produced, refined, prepared, distilled, manufactured, blended, or compounded by such motor fuel dealer in the state;
(2) An itemized statement of the number of gallons of all motor fuel received by such motor fuel dealer in the state from any source during the preceding calendar month, other than motor fuel included in division (A)(1) of this section, together with a statement showing the date of receipt of such motor fuel; the name of the person from whom purchased or received; the date of receipt of each shipment of motor fuel; the point of origin and the point of destination of each shipment; the quantity of each of said purchases or shipments; the name of the carrier; the number of gallons contained in each car if shipped by rail; the point of origin, destination, and shipper if shipped by pipe line; or the name and owner of the boat, barge, or vessel if shipped by water;
(3) An itemized statement of the number of gallons of motor fuel which such motor fuel dealer has during the preceding calendar month:
(a) For motor fuel other than gasoline sold for use other than for operating motor vehicles on the public highways or on waters within the boundaries of this state;
(b) Exported from this state
to any
other state or foreign
country as provided in division
(A)(3)(4) of section 5735.05 of
the
Revised Code;
(c) Sold to the United States government or any of its agencies;
(d) Sold for delivery to motor fuel dealers;
(e) Sold exclusively for use in the operation of aircraft;
(4) Such other information incidental to the enforcement of the motor fuel laws of the state as the commissioner requires.
(B) The report shall show the tax due, computed as follows:
(1) The following deductions shall be made from the total number of gallons of motor fuel received by the motor fuel dealer within the state during the preceding calendar month:
(a) The total number of gallons of motor fuel received by the motor fuel dealer within the state and sold or otherwise disposed of during the preceding calendar month as set forth in section 5735.05 of the Revised Code;
(b) The total number of gallons received during the preceding calendar month and sold or otherwise disposed of to another licensed motor fuel dealer pursuant to section 5735.05 of the Revised Code;
(c) To cover the costs of the motor fuel dealer in compiling the report, and evaporation, shrinkage, or other unaccounted-for losses:
(i) If the report is timely filed and the tax is timely paid, three per cent of the total number of gallons of motor fuel received by the motor fuel dealer within the state during the preceding calendar month less the total number of gallons deducted under divisions (B)(1)(a) and (b) of this section, less one per cent of the total number of gallons of motor fuel that were sold to a retail dealer during the preceding calendar month;
(ii) If the report required by division (A) of this section is not timely filed and the tax is not timely paid, no deduction shall be allowed;
(iii) If the report is incomplete, no deduction shall be allowed for any fuel on which the tax is not timely reported and paid;
(2) The number of gallons remaining after the deductions have been made shall be multiplied separately by each of the following amounts:
(a) The cents per gallon rate;
(b) Two cents.
The sum of the products obtained in divisions (B)(2)(a) and (b) of this section shall be the amount of motor fuel tax for the preceding calendar month.
(C) The report shall be filed together with payment of the tax shown on the report to be due, unless the motor fuel dealer is required by section 5735.062 of the Revised Code to pay the tax by electronic funds transfer, in which case the dealer shall file the report pursuant to this section and pay the tax pursuant to section 5735.062 of the Revised Code. The commissioner may extend the time for filing reports and may remit all or part of penalties which may become due under sections 5735.01 to 5735.99 of the Revised Code. The treasurer of state shall stamp or otherwise mark on all returns the date received by the treasurer and shall also show thereon by stamp or otherwise the amount of payment received for the month for which the report is filed. Thereafter, the treasurer of state shall immediately transmit all reports filed under this section to the commissioner. For purposes of this section and sections 5735.062 and 5735.12 of the Revised Code, a report required to be filed under this section is considered filed when it is received by the treasurer of state, and remittance of the tax due is considered to be made when the remittance is received by the treasurer of state or when credited to an account designated by the treasurer of state for the receipt of tax remittances.
(D) The tax commissioner may require a motor fuel dealer to file a report for a period other than one month. Such a report, together with payment of the tax, shall be filed not later than thirty days after the last day of the prescribed reporting period.
(E) No person required by this section to file a tax report shall file a false or fraudulent tax report or supporting schedule.
Sec. 5735.11. (A) If the tax or any portion of the tax
imposed
by this chapter,
excluding the tax imposed by section
5735.31 of the Revised Code, whether determined by the tax
commissioner or the
motor fuel dealer, is not paid on or before
the date prescribed in section
5735.06 of the Revised Code,
interest shall be collected and paid in the same
manner as the tax
upon the unpaid amount, computed at the rate per annum
prescribed
by section 5703.47 of the Revised Code, from the date prescribed
for payment of the tax to the date of payment or to the date an
assessment is
issued under section 5735.12 or 5735.121 of the
Revised Code, whichever occurs
first. Interest may be collected
by assessment in the manner provided in
section 5735.12 or
5735.121 of the Revised Code. All interest shall be paid
in the
same manner as the tax and shall be considered as revenue arising
from
the tax imposed by section 5735.05 of the Revised Code.
(B) Interest shall be allowed and paid upon any refund granted in respect to the payment of an illegal or erroneous assessment for any tax imposed under this chapter from the date of the overpayment. The interest shall be computed at the rate per annum prescribed by section 5703.47 of the Revised Code.
Sec. 5735.12. (A) Any motor fuel dealer required by this chapter to file reports and pay the tax levied by this chapter who fails to file the report within the time prescribed, may be liable for an additional charge not exceeding the greater of ten per cent of the motor fuel dealer's tax liability for that month or fifty dollars. The tax commissioner may remit all or a portion of the additional charge and may adopt rules relating to the remission of all or a portion of the charge.
If any person required by this chapter to file reports and pay the taxes, interest, or additional charge levied by this chapter fails to file the report, files an incomplete or incorrect report, or fails to remit the full amount of the tax, interest, or additional charge due for the period covered by the report, the commissioner may make an assessment against the person based upon any information in the commissioner's possession.
No assessment shall be made against any motor fuel dealer for taxes imposed by this chapter more than four years after the date on which the report on which the assessment was based was due or was filed, whichever is later. This section does not bar an assessment against any motor fuel dealer who fails to file a report required by section 5735.06 of the Revised Code, or who files a fraudulent motor fuel tax report.
A penalty of up to fifteen per cent may be added to the amount of every assessment made under this section. The commissioner may adopt rules providing for the imposition and remission of penalties added to assessments made under this section.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days
after
service of the notice of assessment, either personally
or by
certified mail, a
written petition for reassessment in
writing, signed by
the party
assessed, or
by the
that party's
authorized agent
of the
party
assessed having knowledge of the
facts, the assessment
shall
become
becomes
final and the
amount of
the assessment
shall be
is
due and
payable from the party
assessed
to the treasurer of state.
The
petition shall indicate
the
objections of the party assessed,
but
additional objections
may be
raised in writing if received
by
the commissioner prior
to the
date shown on
the final
determination
by the commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction to
the
commissioner's assessment
as the commissioner finds proper.
The
commissioner shall
serve a copy of the
commissioner's
final
determination on the petitioner
by personal
service or
certified
mail, and the commissioner's decision in the
matter
shall be
final,
subject to appeal as provided in section
5717.02 of the
Revised
Code.
If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the party assessed resides or in which the business of the party assessed is conducted. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state against the
party assessed in the
amount shown on the entry. The judgment may
be filed by the
clerk
in a loose-leaf book entitled
"special
judgments for state
motor
fuel tax," and shall have the same
effect as
other judgments.
Execution shall issue upon the judgment
upon
the request of the
tax commissioner, and all laws applicable
to
sales on execution
shall apply to sales made under the
judgment.
The portion of the assessment not paid within sixty days
after the
day the assessment was issued shall bear interest at the
rate per annum
prescribed by section 5703.47 of the Revised Code
from the day the
tax
commissioner issues the assessment until it
is paid. Interest shall be paid
in the same manner as the tax and
may be collected by the issuance of an
assessment under this
section.
(D) All money collected by the tax commissioner under this section shall be paid to the treasurer of state, and when paid shall be considered as revenue arising from the tax imposed by this chapter.
(E) If the tax commissioner determines that the commissioner has erroneously refunded motor fuel tax to any person, the commissioner may make an assessment against the person for recovery of the erroneously refunded tax.
Sec. 5735.122. The tax commissioner shall refund
to
dealers
or to
interstate bus operators making
any person assessed motor
fuel
equalization
payments
tax the amount of taxes paid illegally
or
erroneously or paid
on an illegal or erroneous assessment.
Applications for refund
shall be filed with the tax commissioner,
on the form prescribed
by the commissioner, within four
years
from
the date of
the
illegal or erroneous payment. No person shall
file a claim
for
the tax on fewer than one hundred gallons of
motor
fuel.
On
On the
filing of the application, the commissioner shall
determine the
amount of refund
due and
to which the applicant is
entitled. If the amount is not less than that claimed, the
commissioner shall certify the amount to the
director of
budget
and management and treasurer of state for
payment from the
tax
refund fund created by section 5703.052 of
the Revised Code,
except that no refund shall be authorized or
paid on a claim for
the tax on fewer than one hundred gallons of
motor fuel.
The
If
the amount is less than that claimed, the
commissioner shall
proceed in accordance with section 5703.70 of
the Revised Code.
The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
Sec. 5735.13. A refund shall be made to any person for the
motor fuel tax paid on any motor fuel
which
that is
lost or
destroyed
through leakage, fire, explosion,
lightning, flood,
tornado,
windstorm, or any other cause, except
theft, evaporation,
shrinkage, and unaccounted-for losses. No refund
shall be
authorized or ordered under this section for any single
loss of
less than one hundred gallons, nor except upon notice to
the tax
commissioner within thirty days from the date of such
loss or
destruction or the discovery thereof, and upon filing
with the tax
commissioner within sixty days thereafter an
application in the
form of an affidavit sworn to by the claimant
setting forth in
full the circumstances of the loss, and upon
presentation of
supporting evidence satisfactory to the
commissioner.
The
On the filing of the application, the
commissioner shall
determine the amount of the
refund
due and
to
which the applicant
is entitled. If the amount is not less than that claimed, the
commissioner
shall certify
such
the amount to the
director of
budget and management
and treasurer of state for
payment from the
tax refund fund
provided for
created by section
5703.052 of the
Revised
Code.
The
If the amount is less than that claimed, the
commissioner shall proceed in accordance with section 5703.70 of
the Revised Code.
The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
Sec. 5735.14. Any person who uses any motor fuel,
on which
the tax imposed by this
chapter
has been paid, for the purpose of
operating
stationary gas engines, tractors not used on public
highways,
unlicensed motor vehicles used exclusively in intraplant
operations, vessels when used in trade, including vessels when
used in connection with an activity
which
that constitutes a
person's
chief business or means of livelihood or any other vessel
used
entirely for commercial purposes, vessels used for commercial
fishing, vessels used by the sea scout department of the boy
scouts of America chiefly for training scouts in seamanship,
vessels used or owned by any railroad company, railroad car ferry
company, the United States, this state, or any political
subdivision of this state, or aircraft, or who uses any such fuel
upon which such tax has been paid, for cleaning or for dyeing, or
any purpose other than the operation of motor
vehicles upon
highways or upon waters within the boundaries of this state,
shall
be reimbursed in the amount of the tax so paid on such
motor fuel
as provided in this section; provided, that
any person purchasing
motor fuel in this state on which
taxes levied under Title LVII of
the Revised Code have been paid
shall be reimbursed for such taxes
paid in this state on such
fuel used by that person in another
state on which a tax is
paid for such
usage, except such tax used
as a credit against the tax levied by
section 5728.06 of the
Revised Code. A person shall not be reimbursed for
taxes paid on
fuel that is used while a motor vehicle is idling or used to
provide comfort or safety in the operation of a motor vehicle.
Sales of motor fuel, on which the tax imposed by this chapter has
been paid, from one person to another do not constitute use of
the
fuel and are not subject to a refund under this section.
Such person shall file with the tax commissioner an
application for refund within one year from
the
date of purchase,
stating the quantity of fuel used for purposes
other than the
operation of motor vehicles, except
that no
person shall file a
claim for the tax on fewer than one hundred
gallons of motor fuel.
Such
The application shall be
accompanied by the statement
described
in section 5735.15 of the
Revised Code showing such
purchase,
together with evidence of
payment thereof.
After
After consideration of
such
the application and
statement,
the commissioner shall determine
the amount of refund
due and
to
which the applicant is entitled.
If the amount is not less than
that claimed, the commissioner
shall
certify
such
the amount to
the director
of budget and
management
and
treasurer of state for
payment from
the tax refund
fund
created by
section 5703.052 of
the Revised
Code.
No
If the amount is less than that claimed, the
commissioner shall proceed in accordance with section 5703.70 of
the Revised Code.
No refund
shall
be
authorized or paid under this section on
a
single claim
for tax
on
fewer than one hundred gallons of motor
fuel.
The commissioner
may require that the application be
supported by
the affidavit of
the claimant.
The
The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
The right to receive any refund under this section or section 5703.70 of the Revised Code is not assignable. The payment of this refund shall not be made to any person other than the person originally entitled thereto who used the motor fuel upon which the claim for refund is based, except that such refunds when allowed and certified as provided in this section may be paid to the executor, the administrator, the receiver, the trustee in bankruptcy, or the assignee in insolvency proceedings of such person.
Sec. 5735.141. Any retail dealer of motor fuel shall receive a refund for Ohio motor fuel taxes paid on fuel lost by a retail dealer through shrinkage and evaporation. This refund shall be one per cent of the Ohio motor fuel taxes paid on fuel purchased during any semiannual period ending the thirtieth day of June or the thirty-first day of December.
In order to receive a refund, the retail dealer shall
file
with
the tax commissioner, within one hundred twenty days after
the thirtieth day
of June and the thirty-first day of December of
each year, an
application for a refund stating the quantity of
motor
fuel
which
that was purchased for resale by the applicant
during
the
preceding semiannual period ending the thirtieth day of
June
or
the thirty-first day of December and upon which the motor
fuel
tax has been paid. No person shall file a claim for the tax
on
fewer than one hundred gallons of motor fuel. The
form and
contents of the application shall be prescribed by the
tax
commissioner, and the application shall be signed in
accordance
with section 5703.25 of the Revised Code.
The tax
On the filing of
the application, the
commissioner
shall determine the amount of
refund to which the applicant is
entitled. If the amount is not
less than that claimed, the
commissioner shall certify
the amount
of the refund to the
director of budget
and management and
treasurer of state for
payment from the tax
refund fund
provided
for
created by section
5703.052
of the Revised Code.
No
If the
amount is less than that claimed, the commissioner shall proceed
in accordance with section 5703.70 of the Revised Code.
No refund shall be authorized or
ordered
under this section
for
any single claim for the tax on
fewer than
one hundred gallons
of
motor fuel.
The
The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
The right to receive any refund under this section or section 5703.70 of the Revised Code is not assignable. The payment of the refund shall not be made to any person other than the retail dealer originally entitled thereto, except that the refund may be paid to the executor, administrator, receiver, trustee in bankruptcy, or assignee in insolvency proceedings of such retailer.
A motor fuel dealer shall be deemed to be a retail dealer when acting in a retail capacity.
Sec. 5735.142. Any person who uses any motor fuel, on which the tax imposed by sections 5735.05, 5735.25, and 5735.29 of the Revised Code has been paid, for the purpose of operating a transit bus shall be reimbursed in the amount of the tax paid on motor fuel used by public transportation systems providing transit or paratransit service on a regular and continuing basis within the state.
Such person shall file with the tax commissioner an
application for refund within one year from
the
date of purchase,
stating the quantity of fuel used for operating
transit buses used
by local transit systems in
furnishing scheduled common carrier,
public passenger land
transportation service along regular routes
primarily in one or
more municipal corporations, except that no
person shall file a
claim for the tax on fewer than one hundred
gallons of motor
fuel. The application shall be accompanied by
the
statement described in section 5735.15 of the Revised Code
showing the purchase, together with evidence of payment thereof.
After
After
consideration of the application and statement, the
commissioner shall determine the amount of refund
due and
to which
the applicant is entitled. If the amount is not less than that
claimed, the commissioner shall
certify
such
the
amount to the
director of budget
and management and
treasurer of state for
payment from the tax
refund fund
provided
for in
created by
section 5703.052 of the Revised Code.
The
If the amount is less
than that claimed, the commissioner shall proceed in accordance
with section 5703.70 of the Revised Code.
The
commissioner may
require that the application be
supported by
the affidavit of the
claimant. No refund shall be
authorized or
ordered for any single
claim for the tax on fewer
than one
hundred gallons of motor fuel.
The
The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
The right to receive any refund under this section or section 5703.70 of the Revised Code is not assignable. The payment of this refund shall not be made to any person other than the person originally entitled thereto who used the motor fuel upon which the claim for refund is based, except that the refund when allowed and certified, as provided in this section, may be paid to the executor, the administrator, the receiver, the trustee in bankruptcy, or the assignee in insolvency proceedings of the person.
Sec. 5735.18. Any person other than a motor fuel dealer who
purchases motor fuel upon which the tax has been paid to
this
state and who sells the same outside this state for use
outside
this state or who uses the same on highways or waters
outside this
state and pays a tax on such use or sells the same
to the United
States government or any of its agencies may be
reimbursed in the
amount of such tax as provided in this chapter. All
claims
applications
for
refund of the tax paid on motor fuel sold
for
export from the
state or sold to the United States
government or
any of
its
agencies shall be
made in such form and shall set forth
such
information as the tax
commissioner prescribes, and the
claimant
applicant
shall satisfy the
commissioner that the motor
fuel has
been sold
as stated and that
the tax thereon has been
paid.
Claims
Applications for
refund
of the tax paid
on motor fuel
sold to
the United States
government or any of its
agencies shall
be
supported by an
affidavit of the claimant and by
a tax
exemption
certificate
executed by the vendee in such form as
is
prescribed
by the
commissioner.
Such claims for refund filed
under
this
section
shall be certified and paid
If the United States
government or any
of its agencies purchases motor fuel upon which
the tax has been
paid to this state, the United States government
or agency may be
reimbursed in the amount of such tax as provided
in this chapter, provided that the seller of the motor fuel has
not applied for a refund on behalf of the United States government
or agency.
Applications filed by the United States government or
any of its
agencies
for refund of the tax paid on motor fuel
purchases shall
be
supported by an invoice or similar fuel
purchase document
issued
by the seller of the fuel.
On the filing of an application under this section, the
commissioner
shall determine the amount of refund to which the
applicant is
entitled. If the amount is not less than that
claimed, the
commissioner shall certify and pay that amount in the
same manner
as
provided in section 5735.14 of the Revised Code.
The
If the amount is less than that claimed, the
commissioner
shall proceed in accordance with section 5703.70 of
the Revised
Code.
The person shall file with the tax commissioner an application for refund within one year from the date of sale or purchase. The refund authorized by this section or section 5703.70 of the Revised Code shall be reduced by the cents per gallon amount of any qualified fuel credit received under section 5735.145 of the Revised Code, as determined by the commissioner, for each gallon of qualified fuel included in the total gallonage of motor fuel upon which the refund is computed.
Sec. 5739.01. As used in this chapter:
(A) "Person" includes individuals, receivers, assignees, trustees in bankruptcy, estates, firms, partnerships, associations, joint-stock companies, joint ventures, clubs, societies, corporations, the state and its political subdivisions, and combinations of individuals of any form.
(B) "Sale" and "selling" include all of the following transactions for a consideration in any manner, whether absolutely or conditionally, whether for a price or rental, in money or by exchange, and by any means whatsoever:
(1) All transactions by which title or possession, or both, of tangible personal property, is or is to be transferred, or a license to use or consume tangible personal property is or is to be granted;
(2) All transactions by which lodging by a hotel is or is to be furnished to transient guests;
(3) All transactions by which:
(a) An item of tangible personal property is or is to be
repaired, except property, the purchase of which would
not be
exempt
from
subject to the tax imposed by section 5739.02 of the
Revised Code;
(b) An item of tangible personal property is or is to be
installed, except property, the purchase of which would
not be
exempt
from
subject to the tax imposed by section 5739.02 of the
Revised Code or
property that is or is to be incorporated into and
will become a
part of a production, transmission, transportation,
or
distribution system for the delivery of a public utility
service;
(c) The service of washing, cleaning, waxing, polishing, or painting a motor vehicle is or is to be furnished;
(d) Industrial laundry cleaning services are or are to be provided;
(e) Automatic data processing, computer services, or electronic information services are or are to be provided for use in business when the true object of the transaction is the receipt by the consumer of automatic data processing, computer services, or electronic information services rather than the receipt of personal or professional services to which automatic data processing, computer services, or electronic information services are incidental or supplemental. Notwithstanding any other provision of this chapter, such transactions that occur between members of an affiliated group are not sales. An affiliated group means two or more persons related in such a way that one person owns or controls the business operation of another member of the group. In the case of corporations with stock, one corporation owns or controls another if it owns more than fifty per cent of the other corporation's common stock with voting rights.
(f) Telecommunications service, other than mobile telecommunications service after July 31, 2002, is or is to be provided that originates or terminates in this state and is charged in the records of the telecommunications service vendor to the consumer's telephone number or account in this state, or that both originates and terminates in this state; but does not include transactions by which telecommunications service is paid for by using a prepaid authorization number or prepaid telephone calling card, or by which local telecommunications service is obtained from a coin-operated telephone and paid for by using coin;
(g) Landscaping and lawn care service is or is to be provided;
(h) Private investigation and security service is or is to be provided;
(i) Information services or tangible personal property is provided or ordered by means of a nine hundred telephone call;
(j) Building maintenance and janitorial service is or is to be provided;
(k) Employment service is or is to be provided;
(l) Employment placement service is or is to be provided;
(m) Exterminating service is or is to be provided;
(n) Physical fitness facility service is or is to be provided;
(o) Recreation and sports club service is or is to be provided.
(p) After July 31, 2002, mobile telecommunications service is or is to be provided when that service is sitused to this state pursuant to the "Mobile Telecommunications Sourcing Act," Pub. L. No. 106-252, 114 Stat. 626 to 632 (2000), 4 U.S.C.A. 116 to 126, as amended.
(4) All transactions by which printed, imprinted, overprinted, lithographic, multilithic, blueprinted, photostatic, or other productions or reproductions of written or graphic matter are or are to be furnished or transferred;
(5) The production or fabrication of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the production of fabrication work; and include the furnishing, preparing, or serving for a consideration of any tangible personal property consumed on the premises of the person furnishing, preparing, or serving such tangible personal property. Except as provided in section 5739.03 of the Revised Code, a construction contract pursuant to which tangible personal property is or is to be incorporated into a structure or improvement on and becoming a part of real property is not a sale of such tangible personal property. The construction contractor is the consumer of such tangible personal property, provided that the sale and installation of carpeting, the sale and installation of agricultural land tile, the sale and erection or installation of portable grain bins, or the provision of landscaping and lawn care service and the transfer of property as part of such service is never a construction contract. The transfer of copyrighted motion picture films for exhibition purposes is not a sale, except such films as are used solely for advertising purposes. Other than as provided in this section, "sale" and "selling" do not include transfers of interest in leased property where the original lessee and the terms of the original lease agreement remain unchanged, or professional, insurance, or personal service transactions that involve the transfer of tangible personal property as an inconsequential element, for which no separate charges are made.
As used in division (B)(5) of this section:
(a) "Agricultural land tile" means fired clay or concrete tile, or flexible or rigid perforated plastic pipe or tubing, incorporated or to be incorporated into a subsurface drainage system appurtenant to land used or to be used directly in production by farming, agriculture, horticulture, or floriculture. The term does not include such materials when they are or are to be incorporated into a drainage system appurtenant to a building or structure even if the building or structure is used or to be used in such production.
(b) "Portable grain bin" means a structure that is used or to be used by a person engaged in farming or agriculture to shelter the person's grain and that is designed to be disassembled without significant damage to its component parts.
(6) All transactions in which all of the shares of stock of a closely held corporation are transferred, if the corporation is not engaging in business and its entire assets consist of boats, planes, motor vehicles, or other tangible personal property operated primarily for the use and enjoyment of the shareholders;
(7) All transactions in which a warranty, maintenance or service contract, or similar agreement by which the vendor of the warranty, contract, or agreement agrees to repair or maintain the tangible personal property of the consumer is or is to be provided;
(8) All transactions by which a prepaid authorization number or a prepaid telephone calling card is or is to be transferred.
(C) "Vendor" means the person providing the service or by whom the transfer effected or license given by a sale is or is to be made or given and, for sales described in division (B)(3)(i) of this section, the telecommunications service vendor that provides the nine hundred telephone service; if two or more persons are engaged in business at the same place of business under a single trade name in which all collections on account of sales by each are made, such persons shall constitute a single vendor.
Physicians, dentists, hospitals, and veterinarians who are engaged in selling tangible personal property as received from others, such as eyeglasses, mouthwashes, dentifrices, or similar articles, are vendors. Veterinarians who are engaged in transferring to others for a consideration drugs, the dispensing of which does not require an order of a licensed veterinarian or physician under federal law, are vendors.
(D)(1) "Consumer" means the person for whom the service is provided, to whom the transfer effected or license given by a sale is or is to be made or given, to whom the service described in division (B)(3)(f) or (i) of this section is charged, or to whom the admission is granted.
(2) Physicians, dentists, hospitals, and blood banks operated by nonprofit institutions and persons licensed to practice veterinary medicine, surgery, and dentistry are consumers of all tangible personal property and services purchased by them in connection with the practice of medicine, dentistry, the rendition of hospital or blood bank service, or the practice of veterinary medicine, surgery, and dentistry. In addition to being consumers of drugs administered by them or by their assistants according to their direction, veterinarians also are consumers of drugs that under federal law may be dispensed only by or upon the order of a licensed veterinarian or physician, when transferred by them to others for a consideration to provide treatment to animals as directed by the veterinarian.
(3) A person who performs a facility management, or similar service contract for a contractee is a consumer of all tangible personal property and services purchased for use in connection with the performance of such contract, regardless of whether title to any such property vests in the contractee. The purchase of such property and services is not subject to the exception for resale under division (E)(1) of this section.
(4)(a) In the case of a person who purchases printed matter for the purpose of distributing it or having it distributed to the public or to a designated segment of the public, free of charge, that person is the consumer of that printed matter, and the purchase of that printed matter for that purpose is a sale.
(b) In the case of a person who produces, rather than purchases, printed matter for the purpose of distributing it or having it distributed to the public or to a designated segment of the public, free of charge, that person is the consumer of all tangible personal property and services purchased for use or consumption in the production of that printed matter. That person is not entitled to claim exception under division (E)(8) of this section for any material incorporated into the printed matter or any equipment, supplies, or services primarily used to produce the printed matter.
(c) The distribution of printed matter to the public or to a designated segment of the public, free of charge, is not a sale to the members of the public to whom the printed matter is distributed or to any persons who purchase space in the printed matter for advertising or other purposes.
(5) A person who makes sales of any of the services listed in division (B)(3) of this section is the consumer of any tangible personal property used in performing the service. The purchase of that property is not subject to the resale exception under division (E)(1) of this section.
(E) "Retail sale" and "sales at retail" include all sales except those in which the purpose of the consumer is:
(1) To resell the thing transferred or benefit of the service provided, by a person engaging in business, in the form in which the same is, or is to be, received by the person;
(2) To incorporate the thing transferred as a material or a part, into tangible personal property to be produced for sale by manufacturing, assembling, processing, or refining, or to use or consume the thing transferred directly in producing a product for sale by mining, including without limitation the extraction from the earth of all substances that are classed geologically as minerals, production of crude oil and natural gas, farming, agriculture, horticulture, or floriculture, and persons engaged in rendering farming, agricultural, horticultural, or floricultural services, and services in the exploration for, and production of, crude oil and natural gas, for others are deemed engaged directly in farming, agriculture, horticulture, and floriculture, or exploration for, and production of, crude oil and natural gas; directly in the rendition of a public utility service, except that the sales tax levied by section 5739.02 of the Revised Code shall be collected upon all meals, drinks, and food for human consumption sold upon Pullman and railroad coaches. This paragraph does not exempt or except from "retail sale" or "sales at retail" the sale of tangible personal property that is to be incorporated into a structure or improvement to real property.
(3) To hold the thing transferred as security for the performance of an obligation of the vendor;
(4) To use or consume the thing transferred in the process of reclamation as required by Chapters 1513. and 1514. of the Revised Code;
(5) To resell, hold, use, or consume the thing transferred as evidence of a contract of insurance;
(6) To use or consume the thing directly in commercial fishing;
(7) To incorporate the thing transferred as a material or a part into, or to use or consume the thing transferred directly in the production of, magazines distributed as controlled circulation publications;
(8) To use or consume the thing transferred in the production and preparation in suitable condition for market and sale of printed, imprinted, overprinted, lithographic, multilithic, blueprinted, photostatic, or other productions or reproductions of written or graphic matter;
(9) To use the thing transferred, as described in section 5739.011 of the Revised Code, primarily in a manufacturing operation to produce tangible personal property for sale;
(10) To use the benefit of a warranty, maintenance or service contract, or similar agreement, as defined in division (B)(7) of this section, to repair or maintain tangible personal property, if all of the property that is the subject of the warranty, contract, or agreement would be exempt on its purchase from the tax imposed by section 5739.02 of the Revised Code;
(11) To use the thing transferred as qualified research and development equipment;
(12) To use or consume the thing transferred primarily in
storing, transporting, mailing, or otherwise handling purchased
sales inventory in a warehouse, distribution center, or similar
facility when the inventory is primarily distributed outside this
state to retail stores of the person who owns or controls the
warehouse, distribution center, or similar facility, to retail
stores of an affiliated group of which that person is a member,
or
by means of direct marketing. Division (E)(12) of this
section
does not apply to motor vehicles registered for operation
on the
public highways. As used in division (E)(12) of this
section,
"affiliated group" has the same meaning as in division
(B)(3)(e)
of this section and "direct marketing" has the same
meaning as in
division (B)(37)(36) of section 5739.02 of the Revised
Code.
(13) To use or consume the thing transferred to fulfill a contractual obligation incurred by a warrantor pursuant to a warranty provided as a part of the price of the tangible personal property sold or by a vendor of a warranty, maintenance or service contract, or similar agreement the provision of which is defined as a sale under division (B)(7) of this section;
(14) To use or consume the thing transferred in the production of a newspaper for distribution to the public;
(15) To use tangible personal property to perform a service listed in division (B)(3) of this section, if the property is or is to be permanently transferred to the consumer of the service as an integral part of the performance of the service.
As used in division (E) of this section, "thing" includes all transactions included in divisions (B)(3)(a), (b), and (e) of this section.
Sales conducted through a coin-operated device that activates vacuum equipment or equipment that dispenses water, whether or not in combination with soap or other cleaning agents or wax, to the consumer for the consumer's use on the premises in washing, cleaning, or waxing a motor vehicle, provided no other personal property or personal service is provided as part of the transaction, are not retail sales or sales at retail.
(F) "Business" includes any activity engaged in by any person with the object of gain, benefit, or advantage, either direct or indirect. "Business" does not include the activity of a person in managing and investing the person's own funds.
(G) "Engaging in business" means commencing, conducting, or continuing in business, and liquidating a business when the liquidator thereof holds itself out to the public as conducting such business. Making a casual sale is not engaging in business.
(H)(1) "Price," except as provided in divisions (H)(2) and (3) of this section, means the aggregate value in money of anything paid or delivered, or promised to be paid or delivered, in the complete performance of a retail sale, without any deduction on account of the cost of the property sold, cost of materials used, labor or service cost, interest, discount paid or allowed after the sale is consummated, or any other expense. If the retail sale consists of the rental or lease of tangible personal property, "price" means the aggregate value in money of anything paid or delivered, or promised to be paid or delivered, in the complete performance of the rental or lease, without any deduction for tax, interest, labor or service charge, damage liability waiver, termination or damage charge, discount paid or allowed after the lease is consummated, or any other expense. Except as provided in division (H)(4) of this section, the sales tax shall be calculated and collected by the lessor on each payment made by the lessee. Price does not include the consideration received as a deposit refundable to the consumer upon return of a beverage container, the consideration received as a deposit on a carton or case that is used for such returnable containers, or the consideration received as a refundable security deposit for the use of tangible personal property to the extent that it actually is refunded, if the consideration for such refundable deposit is separately stated from the consideration received or to be received for the tangible personal property transferred in the retail sale. Such separation must appear in the sales agreement or on the initial invoice or initial billing rendered by the vendor to the consumer. Price is the amount received inclusive of the tax, provided the vendor establishes to the satisfaction of the tax commissioner that the tax was added to the price. When the price includes both a charge for tangible personal property and a charge for providing a service and the sale of the property and the charge for the service are separately taxable, or have a separately determinable tax status, the price shall be separately stated for each such charge so the tax can be correctly computed and charged.
The tax collected by the vendor from the consumer under this chapter is not part of the price, but is a tax collection for the benefit of the state and of counties levying an additional sales tax pursuant to section 5739.021 or 5739.026 of the Revised Code and of transit authorities levying an additional sales tax pursuant to section 5739.023 of the Revised Code. Except for the discount authorized in section 5739.12 of the Revised Code and the effects of any rounding pursuant to section 5703.055 of the Revised Code, no person other than the state or such a county or transit authority shall derive any benefit from the collection or payment of such tax.
(2) In the case of a sale of any new motor vehicle by a new motor vehicle dealer, as defined in section 4517.01 of the Revised Code, in which another motor vehicle is accepted by the dealer as part of the consideration received, "price" has the same meaning as in division (H)(1) of this section, reduced by the credit afforded the consumer by the dealer for the motor vehicle received in trade.
(3) In the case of a sale of any watercraft or outboard motor by a watercraft dealer licensed in accordance with section 1547.543 of the Revised Code, in which another watercraft, watercraft and trailer, or outboard motor is accepted by the dealer as part of the consideration received, "price" has the same meaning as in division (H)(1) of this section, reduced by the credit afforded the consumer by the dealer for the watercraft, watercraft and trailer, or outboard motor received in trade.
(4) In the case of the lease of any motor vehicle designed by the manufacturer to carry a load of not more than one ton, watercraft, outboard motor, or aircraft, or the lease of any tangible personal property, other than motor vehicles designed by the manufacturer to carry a load of more than one ton, to be used by the lessee primarily for business purposes, the sales tax shall be collected by the vendor at the time the lease is consummated and shall be calculated by the vendor on the basis of the total amount to be paid by the lessee under the lease agreement. If the total amount of the consideration for the lease includes amounts that are not calculated at the time the lease is executed, the tax shall be calculated and collected by the vendor at the time such amounts are billed to the lessee. In the case of an open-end lease, the sales tax shall be calculated by the vendor on the basis of the total amount to be paid during the initial fixed term of the lease, and then for each subsequent renewal period as it comes due.
As used in divisions (H)(3) and (4) of this section, "motor vehicle" has the same meaning as in section 4501.01 of the Revised Code, and "watercraft" includes an outdrive unit attached to the watercraft.
(I) "Receipts" means the total amount of the prices of the sales of vendors, provided that cash discounts allowed and taken on sales at the time they are consummated are not included, minus any amount deducted as a bad debt pursuant to section 5739.121 of the Revised Code. "Receipts" does not include the sale price of property returned or services rejected by consumers when the full sale price and tax are refunded either in cash or by credit.
(J) "Place of business" means any location at which a person engages in business.
(K) "Premises" includes any real property or portion thereof upon which any person engages in selling tangible personal property at retail or making retail sales and also includes any real property or portion thereof designated for, or devoted to, use in conjunction with the business engaged in by such person.
(L) "Casual sale" means a sale of an item of tangible
personal property
that was obtained by the person making the
sale, through purchase or otherwise, for the person's own use
in
this
state and
was previously subject to any state's taxing
jurisdiction on its sale or use, and includes such items acquired
for the seller's use
that are sold by an auctioneer employed
directly by the person for such purpose, provided the location of
such sales is not the auctioneer's permanent place of business.
As
used in this division, "permanent place of business" includes
any
location where such auctioneer has conducted more than two
auctions during the year.
(M) "Hotel" means every establishment kept, used, maintained, advertised, or held out to the public to be a place where sleeping accommodations are offered to guests, in which five or more rooms are used for the accommodation of such guests, whether the rooms are in one or several structures.
(N) "Transient guests" means persons occupying a room or rooms for sleeping accommodations for less than thirty consecutive days.
(O) "Making retail sales" means the effecting of transactions wherein one party is obligated to pay the price and the other party is obligated to provide a service or to transfer title to or possession of the item sold. "Making retail sales" does not include the preliminary acts of promoting or soliciting the retail sales, other than the distribution of printed matter which displays or describes and prices the item offered for sale, nor does it include delivery of a predetermined quantity of tangible personal property or transportation of property or personnel to or from a place where a service is performed, regardless of whether the vendor is a delivery vendor.
(P) "Used directly in the rendition of a public utility service" means that property which is to be incorporated into and will become a part of the consumer's production, transmission, transportation, or distribution system and that retains its classification as tangible personal property after such incorporation; fuel or power used in the production, transmission, transportation, or distribution system; and tangible personal property used in the repair and maintenance of the production, transmission, transportation, or distribution system, including only such motor vehicles as are specially designed and equipped for such use. Tangible personal property and services used primarily in providing highway transportation for hire are not used in providing a public utility service as defined in this division.
(Q) "Refining" means removing or separating a desirable product from raw or contaminated materials by distillation or physical, mechanical, or chemical processes.
(R) "Assembly" and "assembling" mean attaching or fitting together parts to form a product, but do not include packaging a product.
(S) "Manufacturing operation" means a process in which materials are changed, converted, or transformed into a different state or form from which they previously existed and includes refining materials, assembling parts, and preparing raw materials and parts by mixing, measuring, blending, or otherwise committing such materials or parts to the manufacturing process. "Manufacturing operation" does not include packaging.
(T) "Fiscal officer" means, with respect to a regional transit authority, the secretary-treasurer thereof, and with respect to a county that is a transit authority, the fiscal officer of the county transit board if one is appointed pursuant to section 306.03 of the Revised Code or the county auditor if the board of county commissioners operates the county transit system.
(U) "Transit authority" means a regional transit authority created pursuant to section 306.31 of the Revised Code or a county in which a county transit system is created pursuant to section 306.01 of the Revised Code. For the purposes of this chapter, a transit authority must extend to at least the entire area of a single county. A transit authority that includes territory in more than one county must include all the area of the most populous county that is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(V) "Legislative authority" means, with respect to a regional transit authority, the board of trustees thereof, and with respect to a county that is a transit authority, the board of county commissioners.
(W) "Territory of the transit authority" means all of the area included within the territorial boundaries of a transit authority as they from time to time exist. Such territorial boundaries must at all times include all the area of a single county or all the area of the most populous county that is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(X) "Providing a service" means providing or furnishing anything described in division (B)(3) of this section for consideration.
(Y)(1)(a) "Automatic data processing" means processing of others' data, including keypunching or similar data entry services together with verification thereof, or providing access to computer equipment for the purpose of processing data.
(b) "Computer services" means providing services consisting of specifying computer hardware configurations and evaluating technical processing characteristics, computer programming, and training of computer programmers and operators, provided in conjunction with and to support the sale, lease, or operation of taxable computer equipment or systems.
(c) "Electronic information services" means providing access to computer equipment by means of telecommunications equipment for the purpose of either of the following:
(i) Examining or acquiring data stored in or accessible to the computer equipment;
(ii) Placing data into the computer equipment to be retrieved by designated recipients with access to the computer equipment.
(d) "Automatic data processing, computer services, or electronic information services" shall not include personal or professional services.
(2) As used in divisions (B)(3)(e) and (Y)(1) of this section, "personal and professional services" means all services other than automatic data processing, computer services, or electronic information services, including but not limited to:
(a) Accounting and legal services such as advice on tax matters, asset management, budgetary matters, quality control, information security, and auditing and any other situation where the service provider receives data or information and studies, alters, analyzes, interprets, or adjusts such material;
(b) Analyzing business policies and procedures;
(c) Identifying management information needs;
(d) Feasibility studies, including economic and technical analysis of existing or potential computer hardware or software needs and alternatives;
(e) Designing policies, procedures, and custom software for collecting business information, and determining how data should be summarized, sequenced, formatted, processed, controlled, and reported so that it will be meaningful to management;
(f) Developing policies and procedures that document how business events and transactions are to be authorized, executed, and controlled;
(g) Testing of business procedures;
(h) Training personnel in business procedure applications;
(i) Providing credit information to users of such information by a consumer reporting agency, as defined in the "Fair Credit Reporting Act," 84 Stat. 1114, 1129 (1970), 15 U.S.C. 1681a(f), or as hereafter amended, including but not limited to gathering, organizing, analyzing, recording, and furnishing such information by any oral, written, graphic, or electronic medium;
(j) Providing debt collection services by any oral, written, graphic, or electronic means.
The services listed in divisions (Y)(2)(a) to (j) of this section are not automatic data processing or computer services.
(Z) "Highway transportation for hire" means the transportation of personal property belonging to others for consideration by any of the following:
(1) The holder of a permit or certificate issued by this state or the United States authorizing the holder to engage in transportation of personal property belonging to others for consideration over or on highways, roadways, streets, or any similar public thoroughfare;
(2) A person who engages in the transportation of personal property belonging to others for consideration over or on highways, roadways, streets, or any similar public thoroughfare but who could not have engaged in such transportation on December 11, 1985, unless the person was the holder of a permit or certificate of the types described in division (Z)(1) of this section;
(3) A person who leases a motor vehicle to and operates it for a person described by division (Z)(1) or (2) of this section.
(AA) "Telecommunications service" means the transmission of any interactive, two-way electromagnetic communications, including voice, image, data, and information, through the use of any medium such as wires, cables, microwaves, cellular radio, radio waves, light waves, or any combination of those or similar media. "Telecommunications service" includes message toll service even though the vendor provides the message toll service by means of wide area transmission type service or private communications service purchased from another telecommunications service provider, but does not include any of the following:
(1) Sales of incoming or outgoing wide area transmission service or wide area transmission type service, including eight hundred or eight-hundred-type service, to the person contracting for the receipt of that service;
(2) Sales of private communications service to the person contracting for the receipt of that service that entitles the purchaser to exclusive or priority use of a communications channel or group of channels between exchanges;
(3) Sales of telecommunications service by companies subject to the excise tax imposed by Chapter 5727. of the Revised Code;
(4) Sales of telecommunications service to a provider of telecommunications service, including access services, for use in providing telecommunications service;
(5) Value-added nonvoice services in which computer processing applications are used to act on the form, content, code, or protocol of the information to be transmitted;
(6) Transmission of interactive video programming by a cable television system as defined in section 505.90 of the Revised Code;
(7) After July 31, 2002, mobile telecommunications service.
(BB) "Industrial laundry cleaning services" means removing soil or dirt from or supplying towels, linens, or articles of clothing that belong to others and are used in a trade or business.
(CC) "Magazines distributed as controlled circulation publications" means magazines containing at least twenty-four pages, at least twenty-five per cent editorial content, issued at regular intervals four or more times a year, and circulated without charge to the recipient, provided that such magazines are not owned or controlled by individuals or business concerns which conduct such publications as an auxiliary to, and essentially for the advancement of the main business or calling of, those who own or control them.
(DD) "Landscaping and lawn care service" means the services of planting, seeding, sodding, removing, cutting, trimming, pruning, mulching, aerating, applying chemicals, watering, fertilizing, and providing similar services to establish, promote, or control the growth of trees, shrubs, flowers, grass, ground cover, and other flora, or otherwise maintaining a lawn or landscape grown or maintained by the owner for ornamentation or other nonagricultural purpose. However, "landscaping and lawn care service" does not include the providing of such services by a person who has less than five thousand dollars in sales of such services during the calendar year.
(EE) "Private investigation and security service" means the performance of any activity for which the provider of such service is required to be licensed pursuant to Chapter 4749. of the Revised Code, or would be required to be so licensed in performing such services in this state, and also includes the services of conducting polygraph examinations and of monitoring or overseeing the activities on or in, or the condition of, the consumer's home, business, or other facility by means of electronic or similar monitoring devices. "Private investigation and security service" does not include special duty services provided by off-duty police officers, deputy sheriffs, and other peace officers regularly employed by the state or a political subdivision.
(FF) "Information services" means providing conversation, giving consultation or advice, playing or making a voice or other recording, making or keeping a record of the number of callers, and any other service provided to a consumer by means of a nine hundred telephone call, except when the nine hundred telephone call is the means by which the consumer makes a contribution to a recognized charity.
(GG) "Research and development" means designing, creating, or formulating new or enhanced products, equipment, or manufacturing processes, and also means conducting scientific or technological inquiry and experimentation in the physical sciences with the goal of increasing scientific knowledge which may reveal the bases for new or enhanced products, equipment, or manufacturing processes.
(HH) "Qualified research and development equipment" means capitalized tangible personal property, and leased personal property that would be capitalized if purchased, used by a person primarily to perform research and development. Tangible personal property primarily used in testing, as defined in division (A)(4) of section 5739.011 of the Revised Code, or used for recording or storing test results, is not qualified research and development equipment unless such property is primarily used by the consumer in testing the product, equipment, or manufacturing process being created, designed, or formulated by the consumer in the research and development activity or in recording or storing such test results.
(II) "Building maintenance and janitorial service" means cleaning the interior or exterior of a building and any tangible personal property located therein or thereon, including any services incidental to such cleaning for which no separate charge is made. However, "building maintenance and janitorial service" does not include the providing of such service by a person who has less than five thousand dollars in sales of such service during the calendar year.
(JJ) "Employment service" means providing or supplying personnel, on a temporary or long-term basis, to perform work or labor under the supervision or control of another, when the personnel so supplied receive their wages, salary, or other compensation from the provider of the service. "Employment service" does not include:
(1) Acting as a contractor or subcontractor, where the personnel performing the work are not under the direct control of the purchaser.
(2) Medical and health care services.
(3) Supplying personnel to a purchaser pursuant to a contract of at least one year between the service provider and the purchaser that specifies that each employee covered under the contract is assigned to the purchaser on a permanent basis.
(4) Transactions between members of an affiliated group, as defined in division (B)(3)(e) of this section.
(KK) "Employment placement service" means locating or finding employment for a person or finding or locating an employee to fill an available position.
(LL) "Exterminating service" means eradicating or attempting to eradicate vermin infestations from a building or structure, or the area surrounding a building or structure, and includes activities to inspect, detect, or prevent vermin infestation of a building or structure.
(MM) "Physical fitness facility service" means all transactions by which a membership is granted, maintained, or renewed, including initiation fees, membership dues, renewal fees, monthly minimum fees, and other similar fees and dues, by a physical fitness facility such as an athletic club, health spa, or gymnasium, which entitles the member to use the facility for physical exercise.
(NN) "Recreation and sports club service" means all transactions by which a membership is granted, maintained, or renewed, including initiation fees, membership dues, renewal fees, monthly minimum fees, and other similar fees and dues, by a recreation and sports club, which entitles the member to use the facilities of the organization. "Recreation and sports club" means an organization that has ownership of, or controls or leases on a continuing, long-term basis, the facilities used by its members and includes an aviation club, gun or shooting club, yacht club, card club, swimming club, tennis club, golf club, country club, riding club, amateur sports club, or similar organization.
(OO) "Livestock" means farm animals commonly raised for food or food production, and includes but is not limited to cattle, sheep, goats, swine, and poultry. "Livestock" does not include invertebrates, fish, amphibians, reptiles, horses, domestic pets, animals for use in laboratories or for exhibition, or other animals not commonly raised for food or food production.
(PP) "Livestock structure" means a building or structure used exclusively for the housing, raising, feeding, or sheltering of livestock, and includes feed storage or handling structures and structures for livestock waste handling.
(QQ) "Horticulture" means the growing, cultivation, and production of flowers, fruits, herbs, vegetables, sod, mushrooms, and nursery stock. As used in this division, "nursery stock" has the same meaning as in section 927.51 of the Revised Code.
(RR) "Horticulture structure" means a building or structure used exclusively for the commercial growing, raising, or overwintering of horticultural products, and includes the area used for stocking, storing, and packing horticultural products when done in conjunction with the production of those products.
(SS) "Newspaper" means an unbound publication bearing a title or name that is regularly published, at least as frequently as biweekly, and distributed from a fixed place of business to the public in a specific geographic area, and that contains a substantial amount of news matter of international, national, or local events of interest to the general public.
(TT) "Professional racing team" means a person that employs at least twenty full-time employees for the purpose of conducting a motor vehicle racing business for profit. The person must conduct the business with the purpose of racing one or more motor racing vehicles in at least ten competitive professional racing events each year that comprise all or part of a motor racing series sanctioned by one or more motor racing sanctioning organizations. A "motor racing vehicle" means a vehicle for which the chassis, engine, and parts are designed exclusively for motor racing, and does not include a stock or production model vehicle that may be modified for use in racing. For the purposes of this division:
(1) A "competitive professional racing event" is a motor vehicle racing event sanctioned by one or more motor racing sanctioning organizations, at which aggregate cash prizes in excess of eight hundred thousand dollars are awarded to the competitors.
(2) "Full-time employee" means an individual who is employed for consideration for thirty-five or more hours a week, or who renders any other standard of service generally accepted by custom or specified by contract as full-time employment.
(UU)(1) "Prepaid authorization number" means a numeric or alphanumeric combination that represents a prepaid account that can be used by the account holder solely to obtain telecommunications service, and includes any renewals or increases in the prepaid account.
(2) "Prepaid telephone calling card" means a tangible item that contains a prepaid authorization number that can be used solely to obtain telecommunications service, and includes any renewals or increases in the prepaid account.
(VV) "Lease" means any transfer for a consideration of the possession of and right to use, but not title to, tangible personal property for a fixed period of time greater than twenty-eight days or for an open-ended period of time with a minimum fixed period of more than twenty-eight days.
(WW) "Mobile telecommunications service" has the same meaning as in the "Mobile Telecommunications Sourcing Act," Pub. L. No. 106-252, 114 Stat. 631 (2000), 4 U.S.C.A. 124 (7), as amended.
Sec. 5739.011. (A) As used in this section:
(1) "Manufacturer" means a person who is engaged in manufacturing, processing, assembling, or refining a product for sale.
(2) "Manufacturing facility" means a single location where a manufacturing operation is conducted, including locations consisting of one or more buildings or structures in a contiguous area owned or controlled by the manufacturer.
(3) "Materials handling" means the movement of the product being or to be manufactured, during which movement the product is not undergoing any substantial change or alteration in its state or form.
(4) "Testing" means a process or procedure to identify the properties or assure the quality of a material or product.
(5) "Completed product" means a manufactured item that is in the form and condition as it will be sold by the manufacturer. An item is completed when all processes that change or alter its state or form or enhance its value are finished, even though the item subsequently will be tested to ensure its quality or be packaged for storage or shipment.
(6) "Continuous manufacturing operation" means the process in which raw materials or components are moved through the steps whereby manufacturing occurs. Materials handling of raw materials or parts from the point of receipt or preproduction storage or of a completed product, to or from storage, to or from packaging, or to the place from which the completed product will be shipped, is not a part of a continuous manufacturing operation.
(B) For purposes of division (E)(9) of section 5739.01 of the Revised Code, the "thing transferred" includes, but is not limited to, any of the following:
(1) Production machinery and equipment that act upon the product or machinery and equipment that treat the materials or parts in preparation for the manufacturing operation;
(2) Materials handling equipment that moves the product through a continuous manufacturing operation; equipment that temporarily stores the product during the manufacturing operation; or, excluding motor vehicles licensed to operate on public highways, equipment used in intraplant or interplant transfers of work in process where the plant or plants between which such transfers occur are manufacturing facilities operated by the same person;
(3) Catalysts, solvents, water, acids, oil, and similar consumables that interact with the product and that are an integral part of the manufacturing operation;
(4) Machinery, equipment, and other tangible personal property used during the manufacturing operation that control, physically support, produce power for, lubricate, or are otherwise necessary for the functioning of production machinery and equipment and the continuation of the manufacturing operation;
(5) Machinery, equipment, fuel, power, material, parts, and other tangible personal property used to manufacture machinery, equipment, or other tangible personal property used in manufacturing a product for sale;
(6) Machinery, equipment, and other tangible personal property used by a manufacturer to test raw materials, the product being manufactured, or the completed product;
(7) Machinery and equipment used to handle or temporarily store scrap that is intended to be reused in the manufacturing operation at the same manufacturing facility;
(8) Coke, gas, water, steam, and similar
substances used in
the manufacturing operation; machinery and
equipment used for, and
fuel consumed in, producing or extracting
those substances;
machinery, equipment, and other tangible
personal property used to
treat, filter, pump, or
otherwise make the substance suitable for
use in the
manufacturing operation; and machinery and equipment
used
to produce
for, and fuel consumed in, producing
electricity
for use in the manufacturing
operation;
(9) Machinery, equipment, and other tangible personal property used to transport or transmit electricity, coke, gas, water, steam, or similar substances used in the manufacturing operation from the point of generation, if produced by the manufacturer, or from the point where the substance enters the manufacturing facility, if purchased by the manufacturer, to the manufacturing operation;
(10) Machinery, equipment, and other tangible personal property that treats, filters, cools, refines, or otherwise renders water, steam, acid, oil, solvents, or similar substances used in the manufacturing operation reusable, provided that the substances are intended for reuse and not for disposal, sale, or transportation from the manufacturing facility;
(11) Parts, components, and repair and installation services for items described in division (B) of this section.
(C) For purposes of division (E)(9) of section 5739.01 of the Revised Code, the "thing transferred" does not include any of the following:
(1) Tangible personal property used in administrative, personnel, security, inventory control, record-keeping, ordering, billing, or similar functions;
(2) Tangible personal property used in storing raw materials or parts prior to the commencement of the manufacturing operation or used to handle or store a completed product, including storage that actively maintains a completed product in a marketable state or form;
(3) Tangible personal property used to handle or store scrap or waste intended for disposal, sale, or other disposition, other than reuse in the manufacturing operation at the same manufacturing facility;
(4) Tangible personal property that is or is to be incorporated into realty;
(5) Machinery, equipment, and other tangible personal property used for ventilation, dust or gas collection, humidity or temperature regulation, or similar environmental control, except machinery, equipment, and other tangible personal property that totally regulates the environment in a special and limited area of the manufacturing facility where the regulation is essential for production to occur;
(6) Tangible personal property used for the protection and safety of workers, unless the property is attached to or incorporated into machinery and equipment used in a continuous manufacturing operation;
(7) Tangible personal property used to store fuel, water, solvents, acid, oil, or similar items consumed in the manufacturing operation;
(8)
Machinery, equipment, and other tangible personal
property used for research and development;
(9) Machinery, equipment, and other tangible personal
property used to clean, repair, or maintain real or personal
property in the manufacturing facility;
(10)(9) Motor vehicles registered for operation on
the
public
highways.
(D) For purposes of division (E)(9) of section 5739.01 of the Revised Code, if the "thing transferred" is a machine used by a manufacturer in both a taxable and an exempt manner, it shall be totally taxable or totally exempt from taxation based upon its quantified primary use. If the "things transferred" are fungibles, they shall be taxed based upon the proportion of the fungibles used in a taxable manner.
Sec. 5739.02. For the purpose of providing revenue with which to meet the needs of the state, for the use of the general revenue fund of the state, for the purpose of securing a thorough and efficient system of common schools throughout the state, for the purpose of affording revenues, in addition to those from general property taxes, permitted under constitutional limitations, and from other sources, for the support of local governmental functions, and for the purpose of reimbursing the state for the expense of administering this chapter, an excise tax is hereby levied on each retail sale made in this state.
(A) The tax shall be collected pursuant to the schedules in section 5739.025 of the Revised Code.
The tax applies and is collectible when the sale is made, regardless of the time when the price is paid or delivered.
In the case of a sale, the price of which consists in whole or in part of rentals for the use of the thing transferred, the tax, as regards such rentals, shall be measured by the installments thereof.
In the case of a sale of a service defined under division (MM) or (NN) of section 5739.01 of the Revised Code, the price of which consists in whole or in part of a membership for the receipt of the benefit of the service, the tax applicable to the sale shall be measured by the installments thereof.
(B) The tax does not apply to the following:
(1) Sales to the state or any of its political subdivisions, or to any other state or its political subdivisions if the laws of that state exempt from taxation sales made to this state and its political subdivisions;
(2) Sales of food for human consumption off the premises where sold;
(3) Sales of food sold to students only in a cafeteria, dormitory, fraternity, or sorority maintained in a private, public, or parochial school, college, or university;
(4) Sales of newspapers, and of magazine subscriptions
shipped by second class mail, and sales or transfers of magazines
distributed as controlled circulation publications;
(5) The furnishing, preparing, or serving of meals without charge by an employer to an employee provided the employer records the meals as part compensation for services performed or work done;
(6) Sales of motor fuel upon receipt, use, distribution, or sale of which in this state a tax is imposed by the law of this state, but this exemption shall not apply to the sale of motor fuel on which a refund of the tax is allowable under section 5735.14 of the Revised Code; and the tax commissioner may deduct the amount of tax levied by this section applicable to the price of motor fuel when granting a refund of motor fuel tax pursuant to section 5735.14 of the Revised Code and shall cause the amount deducted to be paid into the general revenue fund of this state;
(7) Sales of natural gas by a natural gas company, of water by a water-works company, or of steam by a heating company, if in each case the thing sold is delivered to consumers through pipes or conduits, and all sales of communications services by a telephone or telegraph company, all terms as defined in section 5727.01 of the Revised Code;
(8) Casual sales by a person, or auctioneer employed directly by the person to conduct such sales, except as to such sales of motor vehicles, watercraft or outboard motors required to be titled under section 1548.06 of the Revised Code, watercraft documented with the United States coast guard, snowmobiles, and all-purpose vehicles as defined in section 4519.01 of the Revised Code;
(9) Sales of services or tangible personal property, other than motor vehicles, mobile homes, and manufactured homes, by churches, organizations exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986, or nonprofit organizations operated exclusively for charitable purposes as defined in division (B)(12) of this section, provided that the number of days on which such tangible personal property or services, other than items never subject to the tax, are sold does not exceed six in any calendar year. If the number of days on which such sales are made exceeds six in any calendar year, the church or organization shall be considered to be engaged in business and all subsequent sales by it shall be subject to the tax. In counting the number of days, all sales by groups within a church or within an organization shall be considered to be sales of that church or organization, except that sales made by separate student clubs and other groups of students of a primary or secondary school, and sales made by a parent-teacher association, booster group, or similar organization that raises money to support or fund curricular or extracurricular activities of a primary or secondary school, shall not be considered to be sales of such school, and sales by each such club, group, association, or organization shall be counted separately for purposes of the six-day limitation. This division does not apply to sales by a noncommercial educational radio or television broadcasting station.
(10) Sales not within the taxing power of this state under the Constitution of the United States;
(11) The transportation of persons or property, unless the transportation is by a private investigation and security service;
(12) Sales of tangible personal property or services to churches, to organizations exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986, and to any other nonprofit organizations operated exclusively for charitable purposes in this state, no part of the net income of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which consists of carrying on propaganda or otherwise attempting to influence legislation; sales to offices administering one or more homes for the aged or one or more hospital facilities exempt under section 140.08 of the Revised Code; and sales to organizations described in division (D) of section 5709.12 of the Revised Code.
"Charitable purposes" means the relief of poverty; the improvement of health through the alleviation of illness, disease, or injury; the operation of an organization exclusively for the provision of professional, laundry, printing, and purchasing services to hospitals or charitable institutions; the operation of a home for the aged, as defined in section 5701.13 of the Revised Code; the operation of a radio or television broadcasting station that is licensed by the federal communications commission as a noncommercial educational radio or television station; the operation of a nonprofit animal adoption service or a county humane society; the promotion of education by an institution of learning that maintains a faculty of qualified instructors, teaches regular continuous courses of study, and confers a recognized diploma upon completion of a specific curriculum; the operation of a parent-teacher association, booster group, or similar organization primarily engaged in the promotion and support of the curricular or extracurricular activities of a primary or secondary school; the operation of a community or area center in which presentations in music, dramatics, the arts, and related fields are made in order to foster public interest and education therein; the production of performances in music, dramatics, and the arts; or the promotion of education by an organization engaged in carrying on research in, or the dissemination of, scientific and technological knowledge and information primarily for the public.
Nothing in this division shall be deemed to exempt sales to any organization for use in the operation or carrying on of a trade or business, or sales to a home for the aged for use in the operation of independent living facilities as defined in division (A) of section 5709.12 of the Revised Code.
(13) Building and construction materials and services sold to construction contractors for incorporation into a structure or improvement to real property under a construction contract with this state or a political subdivision thereof, or with the United States government or any of its agencies; building and construction materials and services sold to construction contractors for incorporation into a structure or improvement to real property that are accepted for ownership by this state or any of its political subdivisions, or by the United States government or any of its agencies at the time of completion of such structures or improvements; building and construction materials sold to construction contractors for incorporation into a horticulture structure or livestock structure for a person engaged in the business of horticulture or producing livestock; building materials and services sold to a construction contractor for incorporation into a house of public worship or religious education, or a building used exclusively for charitable purposes under a construction contract with an organization whose purpose is as described in division (B)(12) of this section; building materials and services sold to a construction contractor for incorporation into a building under a construction contract with an organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986 when the building is to be used exclusively for the organization's exempt purposes; building and construction materials sold for incorporation into the original construction of a sports facility under section 307.696 of the Revised Code; and building and construction materials and services sold to a construction contractor for incorporation into real property outside this state if such materials and services, when sold to a construction contractor in the state in which the real property is located for incorporation into real property in that state, would be exempt from a tax on sales levied by that state;
(14) Sales of ships or vessels or rail rolling stock used or to be used principally in interstate or foreign commerce, and repairs, alterations, fuel, and lubricants for such ships or vessels or rail rolling stock;
(15) Sales to persons engaged in any of the activities mentioned in division (E)(2) or (9) of section 5739.01 of the Revised Code, to persons engaged in making retail sales, or to persons who purchase for sale from a manufacturer tangible personal property that was produced by the manufacturer in accordance with specific designs provided by the purchaser, of packages, including material, labels, and parts for packages, and of machinery, equipment, and material for use primarily in packaging tangible personal property produced for sale, including any machinery, equipment, and supplies used to make labels or packages, to prepare packages or products for labeling, or to label packages or products, by or on the order of the person doing the packaging, or sold at retail. "Packages" includes bags, baskets, cartons, crates, boxes, cans, bottles, bindings, wrappings, and other similar devices and containers, and "packaging" means placing therein.
(16) Sales of food to persons using food stamp benefits to purchase the food. As used in division (B)(16) of this section, "food" has the same meaning as in the "Food Stamp Act of 1977," 91 Stat. 958, 7 U.S.C. 2012, as amended, and federal regulations adopted pursuant to that act.
(17) Sales to persons engaged in farming, agriculture, horticulture, or floriculture, of tangible personal property for use or consumption directly in the production by farming, agriculture, horticulture, or floriculture of other tangible personal property for use or consumption directly in the production of tangible personal property for sale by farming, agriculture, horticulture, or floriculture; or material and parts for incorporation into any such tangible personal property for use or consumption in production; and of tangible personal property for such use or consumption in the conditioning or holding of products produced by and for such use, consumption, or sale by persons engaged in farming, agriculture, horticulture, or floriculture, except where such property is incorporated into real property;
(18) Sales of drugs dispensed by a licensed pharmacist upon the order of a licensed health professional authorized to prescribe drugs to a human being, as the term "licensed health professional authorized to prescribe drugs" is defined in section 4729.01 of the Revised Code; insulin as recognized in the official United States pharmacopoeia; urine and blood testing materials when used by diabetics or persons with hypoglycemia to test for glucose or acetone; hypodermic syringes and needles when used by diabetics for insulin injections; epoetin alfa when purchased for use in the treatment of persons with end-stage renal disease; hospital beds when purchased for use by persons with medical problems for medical purposes; and oxygen and oxygen-dispensing equipment when purchased for use by persons with medical problems for medical purposes;
(19)(a) Sales of artificial limbs or portion thereof, breast prostheses, and other prosthetic devices for humans; braces or other devices for supporting weakened or nonfunctioning parts of the human body; crutches or other devices to aid human perambulation; and items of tangible personal property used to supplement impaired functions of the human body such as respiration, hearing, or elimination;
(b) Sales of wheelchairs; items incorporated into or used in conjunction with a motor vehicle for the purpose of transporting wheelchairs, other than transportation conducted in connection with the sale or delivery of wheelchairs; and items incorporated into or used in conjunction with a motor vehicle that are specifically designed to assist a person with a disability to access or operate the motor vehicle. As used in this division, "person with a disability" means any person who has lost the use of one or both legs or one or both arms, who is blind, deaf, or disabled to the extent that the person is unable to move about without the aid of crutches or a wheelchair, or whose mobility is restricted by a permanent cardiovascular, pulmonary, or other disabling condition.
(c) No exemption under this division shall be allowed for nonprescription drugs, medicines, or remedies; items or devices used to supplement vision; items or devices whose function is solely or primarily cosmetic; or physical fitness equipment. This division does not apply to sales to a physician or medical facility for use in the treatment of a patient.
(20) Sales of emergency and fire protection vehicles and equipment to nonprofit organizations for use solely in providing fire protection and emergency services, including trauma care and emergency medical services, for political subdivisions of the state;
(21) Sales of tangible personal property manufactured in this state, if sold by the manufacturer in this state to a retailer for use in the retail business of the retailer outside of this state and if possession is taken from the manufacturer by the purchaser within this state for the sole purpose of immediately removing the same from this state in a vehicle owned by the purchaser;
(22) Sales of services provided by the state or any of its political subdivisions, agencies, instrumentalities, institutions, or authorities, or by governmental entities of the state or any of its political subdivisions, agencies, instrumentalities, institutions, or authorities;
(23) Sales of motor vehicles to nonresidents of this state upon the presentation of an affidavit executed in this state by the nonresident purchaser affirming that the purchaser is a nonresident of this state, that possession of the motor vehicle is taken in this state for the sole purpose of immediately removing it from this state, that the motor vehicle will be permanently titled and registered in another state, and that the motor vehicle will not be used in this state;
(24) Sales to persons engaged in the preparation of eggs for sale of tangible personal property used or consumed directly in such preparation, including such tangible personal property used for cleaning, sanitizing, preserving, grading, sorting, and classifying by size; packages, including material and parts for packages, and machinery, equipment, and material for use in packaging eggs for sale; and handling and transportation equipment and parts therefor, except motor vehicles licensed to operate on public highways, used in intraplant or interplant transfers or shipment of eggs in the process of preparation for sale, when the plant or plants within or between which such transfers or shipments occur are operated by the same person. "Packages" includes containers, cases, baskets, flats, fillers, filler flats, cartons, closure materials, labels, and labeling materials, and "packaging" means placing therein.
(25)(a) Sales of water to a consumer for residential use, except the sale of bottled water, distilled water, mineral water, carbonated water, or ice;
(b) Sales of water by a nonprofit corporation engaged exclusively in the treatment, distribution, and sale of water to consumers, if such water is delivered to consumers through pipes or tubing.
(26) Fees charged for inspection or reinspection of motor vehicles under section 3704.14 of the Revised Code;
(27) Sales to persons licensed to conduct a food service operation pursuant to section 3717.43 of the Revised Code, of tangible personal property primarily used directly for the following:
(a) To prepare food for human consumption for sale;
(b) To preserve food that has been or will be prepared for human consumption for sale by the food service operator, not including tangible personal property used to display food for selection by the consumer;
(c) To clean tangible personal property used to prepare or serve food for human consumption for sale.
(28) Sales of animals by nonprofit animal adoption services or county humane societies;
(29) Sales of services to a corporation described in division (A) of section 5709.72 of the Revised Code, and sales of tangible personal property that qualifies for exemption from taxation under section 5709.72 of the Revised Code;
(30) Sales and installation of agricultural land tile, as defined in division (B)(5)(a) of section 5739.01 of the Revised Code;
(31) Sales and erection or installation of portable grain bins, as defined in division (B)(5)(b) of section 5739.01 of the Revised Code;
(32) The sale, lease, repair, and maintenance of, parts for, or items attached to or incorporated in, motor vehicles that are primarily used for transporting tangible personal property by a person engaged in highway transportation for hire;
(33) Sales to the state headquarters of any veterans' organization in Ohio that is either incorporated and issued a charter by the congress of the United States or is recognized by the United States veterans administration, for use by the headquarters;
(34) Sales to a telecommunications service vendor of tangible personal property and services used directly and primarily in transmitting, receiving, switching, or recording any interactive, two-way electromagnetic communications, including voice, image, data, and information, through the use of any medium, including, but not limited to, poles, wires, cables, switching equipment, computers, and record storage devices and media, and component parts for the tangible personal property. The exemption provided in division (B)(34) of this section shall be in lieu of all other exceptions under division (E)(2) of section 5739.01 of the Revised Code to which a telecommunications service vendor may otherwise be entitled based upon the use of the thing purchased in providing the telecommunications service.
(35) Sales of investment metal bullion and investment coins. "Investment metal bullion" means any elementary precious metal that has been put through a process of smelting or refining, including, but not limited to, gold, silver, platinum, and palladium, and which is in such state or condition that its value depends upon its content and not upon its form. "Investment metal bullion" does not include fabricated precious metal that has been processed or manufactured for one or more specific and customary industrial, professional, or artistic uses. "Investment coins" means numismatic coins or other forms of money and legal tender manufactured of gold, silver, platinum, palladium, or other metal under the laws of the United States or any foreign nation with a fair market value greater than any statutory or nominal value of such coins.
(36)(a) Sales where the purpose of the consumer is to use or consume the things transferred in making retail sales and consisting of newspaper inserts, catalogues, coupons, flyers, gift certificates, or other advertising material that prices and describes tangible personal property offered for retail sale.
(b) Sales to direct marketing vendors of preliminary materials such as photographs, artwork, and typesetting that will be used in printing advertising material; of printed matter that offers free merchandise or chances to win sweepstake prizes and that is mailed to potential customers with advertising material described in division (B)(36)(a) of this section; and of equipment such as telephones, computers, facsimile machines, and similar tangible personal property primarily used to accept orders for direct marketing retail sales.
(c) Sales of automatic food vending machines that preserve food with a shelf life of forty-five days or less by refrigeration and dispense it to the consumer.
For purposes of division (B)(36) of this section, "direct marketing" means the method of selling where consumers order tangible personal property by United States mail, delivery service, or telecommunication and the vendor delivers or ships the tangible personal property sold to the consumer from a warehouse, catalogue distribution center, or similar fulfillment facility by means of the United States mail, delivery service, or common carrier.
(37) Sales to a person engaged in the business of horticulture or producing livestock of materials to be incorporated into a horticulture structure or livestock structure;
(38) The sale of a motor vehicle that is used exclusively for a vanpool ridesharing arrangement to persons participating in the vanpool ridesharing arrangement when the vendor is selling the vehicle pursuant to a contract between the vendor and the department of transportation;
(39) Sales of personal computers, computer monitors, computer keyboards, modems, and other peripheral computer equipment to an individual who is licensed or certified to teach in an elementary or a secondary school in this state for use by that individual in preparation for teaching elementary or secondary school students;
(40) Sales to a professional racing team of any of the following:
(a) Motor racing vehicles;
(b) Repair services for motor racing vehicles;
(c) Items of property that are attached to or incorporated in motor racing vehicles, including engines, chassis, and all other components of the vehicles, and all spare, replacement, and rebuilt parts or components of the vehicles; except not including tires, consumable fluids, paint, and accessories consisting of instrumentation sensors and related items added to the vehicle to collect and transmit data by means of telemetry and other forms of communication.
(41) Sales of used manufactured homes and used mobile homes, as defined in section 5739.0210 of the Revised Code, made on or after January 1, 2000;
(42) Sales of tangible personal property and services to a provider of electricity used or consumed directly and primarily in generating, transmitting, or distributing electricity for use by others, including property that is or is to be incorporated into and will become a part of the consumer's production, transmission, or distribution system and that retains its classification as tangible personal property after incorporation; fuel or power used in the production, transmission, or distribution of electricity; and tangible personal property and services used in the repair and maintenance of the production, transmission, or distribution system, including only those motor vehicles as are specially designed and equipped for such use. The exemption provided in this division shall be in lieu of all other exceptions in division (E)(2) of section 5739.01 of the Revised Code to which a provider of electricity may otherwise be entitled based on the use of the tangible personal property or service purchased in generating, transmitting, or distributing electricity.
For the purpose of the proper administration of this chapter, and to prevent the evasion of the tax, it is presumed that all sales made in this state are subject to the tax until the contrary is established.
As used in this section, except in division (B)(16) of this section, "food" includes cereals and cereal products, milk and milk products including ice cream, meat and meat products, fish and fish products, eggs and egg products, vegetables and vegetable products, fruits, fruit products, and pure fruit juices, condiments, sugar and sugar products, coffee and coffee substitutes, tea, and cocoa and cocoa products. It does not include: spirituous or malt liquors; soft drinks; sodas and beverages that are ordinarily dispensed at bars and soda fountains or in connection therewith, other than coffee, tea, and cocoa; root beer and root beer extracts; malt and malt extracts; mineral oils, cod liver oils, and halibut liver oil; medicines, including tonics, vitamin preparations, and other products sold primarily for their medicinal properties; and water, including mineral, bottled, and carbonated waters, and ice.
(C) The levy of an excise tax on transactions by which lodging by a hotel is or is to be furnished to transient guests pursuant to this section and division (B) of section 5739.01 of the Revised Code does not prevent any of the following:
(1) A municipal corporation or township from levying an excise tax for any lawful purpose not to exceed three per cent on transactions by which lodging by a hotel is or is to be furnished to transient guests in addition to the tax levied by this section. If a municipal corporation or township repeals a tax imposed under division (C)(1) of this section and a county in which the municipal corporation or township has territory has a tax imposed under division (C) of section 5739.024 of the Revised Code in effect, the municipal corporation or township may not reimpose its tax as long as that county tax remains in effect. A municipal corporation or township in which a tax is levied under division (B)(2) of section 351.021 of the Revised Code may not increase the rate of its tax levied under division (C)(1) of this section to any rate that would cause the total taxes levied under both of those divisions to exceed three per cent on any lodging transaction within the municipal corporation or township.
(2) A municipal corporation or a township from levying an additional excise tax not to exceed three per cent on such transactions pursuant to division (B) of section 5739.024 of the Revised Code. Such tax is in addition to any tax imposed under division (C)(1) of this section.
(3) A county from levying an excise tax pursuant to division (A) of section 5739.024 of the Revised Code.
(4) A county from levying an excise tax not to exceed three per cent of such transactions pursuant to division (C) of section 5739.024 of the Revised Code. Such a tax is in addition to any tax imposed under division (C)(3) of this section.
(5) A convention facilities authority, as defined in division (A) of section 351.01 of the Revised Code, from levying the excise taxes provided for in division (B) of section 351.021 of the Revised Code.
(6) A county from levying an excise tax not to exceed one and one-half per cent of such transactions pursuant to division (D) of section 5739.024 of the Revised Code. Such tax is in addition to any tax imposed under division (C)(3) or (4) of this section.
(7) A county from levying an excise tax not to exceed one and one-half per cent of such transactions pursuant to division (E) of section 5739.024 of the Revised Code. Such a tax is in addition to any tax imposed under division (C)(3), (4), or (6) of this section.
(D) The levy of this tax on retail sales of recreation and sports club service shall not prevent a municipal corporation from levying any tax on recreation and sports club dues or on any income generated by recreation and sports club dues.
Sec. 5739.026. (A) A board of county commissioners may levy a tax of one-fourth or one-half of one per cent on every retail sale in the county, except sales of watercraft and outboard motors required to be titled pursuant to Chapter 1548. of the Revised Code and sales of motor vehicles, and may increase an existing rate of one-fourth of one per cent to one-half of one per cent, to pay the expenses of administering the tax and, except as provided in division (A)(6) of this section, for any one or more of the following purposes provided that the aggregate levy for all such purposes does not exceed one-half of one per cent:
(1) To provide additional revenues for the payment of bonds or notes issued in anticipation of bonds issued by a convention facilities authority established by the board of county commissioners under Chapter 351. of the Revised Code and to provide additional operating revenues for the convention facilities authority;
(2) To provide additional revenues for a transit authority operating in the county;
(3) To provide additional revenue for the county's general fund;
(4) To provide additional revenue for permanent improvements within the county to be distributed by the community improvements board in accordance with section 307.283 and to pay principal, interest, and premium on bonds issued under section 307.284 of the Revised Code;
(5) To provide additional revenue for the acquisition, construction, equipping, or repair of any specific permanent improvement or any class or group of permanent improvements, which improvement or class or group of improvements shall be enumerated in the resolution required by division (D) of this section, and to pay principal, interest, premium, and other costs associated with the issuance of bonds or notes in anticipation of bonds issued pursuant to Chapter 133. of the Revised Code for the acquisition, construction, equipping, or repair of the specific permanent improvement or class or group of permanent improvements;
(6) To provide revenue for the implementation and operation of a 9-1-1 system in the county. If the tax is levied or the rate increased exclusively for such purpose, the tax shall not be levied or the rate increased for more than five years. At the end of the last year the tax is levied or the rate increased, any balance remaining in the special fund established for such purpose shall remain in that fund and be used exclusively for such purpose until the fund is completely expended, and, notwithstanding section 5705.16 of the Revised Code, the board of county commissioners shall not petition for the transfer of money from such special fund, and the tax commissioner shall not approve such a petition.
If the tax is levied or the rate increased for such purpose for more than five years, the board of county commissioners also shall levy the tax or increase the rate of the tax for one or more of the purposes described in divisions (A)(1) to (5) of this section and shall prescribe the method for allocating the revenues from the tax each year in the manner required by division (C) of this section.
(7) To provide additional revenue for the operation or maintenance of a detention facility, as that term is defined under division (F) of section 2921.01 of the Revised Code;
(8) To provide revenue to finance the construction or renovation of a sports facility, but only if the tax is levied for that purpose in the manner prescribed by section 5739.028 of the Revised Code.
As used in division (A)(8) of this section:
(a) "Sports facility" means a facility intended to house major league professional athletic teams.
(b) "Constructing" or "construction" includes providing fixtures, furnishings, and equipment.
(9) To provide additional revenue for the acquisition of agricultural easements, as defined in section 5301.67 of the Revised Code; to pay principal, interest, and premium on bonds issued under section 133.60 of the Revised Code; and for the supervision and enforcement of agricultural easements held by the county.
Pursuant to section 755.171 of the Revised Code, a board of county commissioners may pledge and contribute revenue from a tax levied for the purpose of division (A)(5) of this section to the payment of debt charges on bonds issued under section 755.17 of the Revised Code.
The rate of tax shall be a multiple of one-fourth of one per cent, unless a portion of the rate of an existing tax levied under section 5739.023 of the Revised Code has been reduced, and the rate of tax levied under this section has been increased, pursuant to section 5739.028 of the Revised Code, in which case the aggregate of the rates of tax levied under this section and section 5739.023 of the Revised Code shall be a multiple of one-fourth of one per cent. The tax shall be levied and the rate increased pursuant to a resolution adopted by a majority of the members of the board.
Prior to the adoption of any resolution to levy the tax or to increase the rate of tax exclusively for the purpose set forth in division (A)(3) of this section, the board of county commissioners shall conduct two public hearings on the resolution, the second hearing to be no fewer than three nor more than ten days after the first. Notice of the date, time, and place of the hearings shall be given by publication in a newspaper of general circulation in the county once a week on the same day of the week for two consecutive weeks, the second publication being no fewer than ten nor more than thirty days prior to the first hearing. The resolution shall become effective on the first day of the month specified in the resolution but not earlier than the first day of the month following the expiration of sixty days from the date of its adoption, subject to a referendum as provided in sections 305.31 to 305.41 of the Revised Code, unless the resolution is adopted as an emergency measure necessary for the immediate preservation of the public peace, health, or safety, in which case it shall go into effect on the first day of the month following the expiration of thirty days from the date of notice by the board of county commissioners to the tax commissioner of its adoption. The emergency measure shall receive an affirmative vote of all of the members of the board of county commissioners and shall state the reasons for the necessity.
If the tax is for more than one of the purposes set forth in divisions (A)(1) to (7) and (9) of this section or is exclusively for one of the purposes set forth in division (A)(1), (2), (4), (5), (6), (7), or (9) of this section, the resolution shall not go into effect unless it is approved by a majority of the electors voting on the question of the tax.
(B) The board of county commissioners shall adopt a resolution under section 351.02 of the Revised Code creating the convention facilities authority, or under section 307.283 of the Revised Code creating the community improvements board, before adopting a resolution levying a tax for the purpose of a convention facilities authority under division (A)(1) of this section or for the purpose of a community improvements board under division (A)(4) of this section.
(C)(1) If the tax is to be used for more than one of the purposes set forth in divisions (A)(1) to (7) and (9) of this section, the board of county commissioners shall establish the method that will be used to determine the amount or proportion of the tax revenue received by the county during each year that will be distributed for each of those purposes, including, if applicable, provisions governing the reallocation of a convention facilities authority's allocation if the authority is dissolved while the tax is in effect. The allocation method may provide that different proportions or amounts of the tax shall be distributed among the purposes in different years, but it shall clearly describe the method that will be used for each year. Except as otherwise provided in division (C)(2) of this section, the allocation method established by the board is not subject to amendment during the life of the tax.
(2) Subsequent to holding a public hearing on the proposed amendment, the board of county commissioners may amend the allocation method established under division (C)(1) of this section for any year if the amendment is approved by the governing board of each entity whose allocation for the year would be reduced by the proposed amendment. In the case of a tax that is levied for a continuing period of time, the board may not so amend the allocation method for any year before the sixth year that the tax is in effect.
(a) If the additional revenues provided to the convention facilities authority are pledged by the authority for the payment of convention facilities authority revenue bonds for as long as such bonds are outstanding, no reduction of the authority's allocation of the tax shall be made for any year except to the extent that the reduced authority allocation, when combined with the authority's other revenues pledged for that purpose, is sufficient to meet the debt service requirements for that year on such bonds.
(b) If the additional revenues provided to the county are pledged by the county for the payment of bonds or notes described in division (A)(4) or (5) of this section, for as long as such bonds or notes are outstanding, no reduction of the county's or the community improvements board's allocation of the tax shall be made for any year except to the extent that the reduced county or community improvements board allocation is sufficient to meet the debt service requirements for that year on such bonds or notes.
(c) If the additional revenues provided to the transit authority are pledged by the authority for the payment of revenue bonds issued under section 306.37 of the Revised Code, for as long as such bonds are outstanding, no reduction of the authority's allocation of tax shall be made for any year except to the extent that the authority's reduced allocation, when combined with the authority's other revenues pledged for that purpose, is sufficient to meet the debt service requirements for that year on such bonds.
(d) If the additional revenues provided to the county are pledged by the county for the payment of bonds or notes issued under section 133.60 of the Revised Code, for so long as the bonds or notes are outstanding, no reduction of the county's allocation of the tax shall be made for any year except to the extent that the reduced county allocation is sufficient to meet the debt service requirements for that year on the bonds or notes.
(D)(1) The resolution levying the tax or increasing the rate of tax shall state the rate of the tax or the rate of the increase; the purpose or purposes for which it is to be levied; the number of years for which it is to be levied or that it is for a continuing period of time; the allocation method required by division (C) of this section; and if required to be submitted to the electors of the county under division (A) of this section, the date of the election at which the proposal shall be submitted to the electors of the county, which shall be not less than seventy-five days after the certification of a copy of the resolution to the board of elections and, if the tax is to be levied exclusively for the purpose set forth in division (A)(3) of this section, shall not occur in February or August of any year. Upon certification of the resolution to the board of elections, the board of county commissioners shall notify the tax commissioner in writing of the levy question to be submitted to the electors. If approved by a majority of the electors, the tax shall become effective on the first day of the month specified in the resolution but not earlier than the first day of the month next following the thirtieth day following the certification of the results of the election to the board of county commissioners and the tax commissioner by the board of elections.
(2)(a) A resolution specifying that the tax is to be used exclusively for the purpose set forth in division (A)(3) of this section that is not adopted as an emergency measure may direct the board of elections to submit the question of levying the tax or increasing the rate of the tax to the electors of the county at a special election held on the date specified by the board of county commissioners in the resolution, provided that the election occurs not less than seventy-five days after the resolution is certified to the board of elections and the election is not held in February or August of any year. Upon certification of the resolution to the board of elections, the board of county commissioners shall notify the tax commissioner in writing of the levy question to be submitted to the electors. No resolution adopted under division (D)(2)(a) of this section shall go into effect unless approved by a majority of those voting upon it and not until the first day of the month specified in the resolution but not earlier than the first day of the month following the expiration of thirty days from the date of the notice to the tax commissioner by the board of elections of the affirmative vote.
(b) A resolution specifying that the tax is to be used exclusively for the purpose set forth in division (A)(3) of this section that is adopted as an emergency measure shall become effective as provided in division (A) of this section but may direct the board of elections to submit the question of repealing the tax or increase in the rate of the tax to the electors of the county at the next general election in the county occurring not less than seventy-five days after the resolution is certified to the board of elections. Upon certification of the resolution to the board of elections, the board of county commissioners shall notify the tax commissioner in writing of the levy question to be submitted to the electors. The ballot question shall be the same as that prescribed in section 5739.022 of the Revised Code. The board of elections shall notify the board of county commissioners and the tax commissioner of the result of the election immediately after the result has been declared. If a majority of the qualified electors voting on the question of repealing the tax or increase in the rate of the tax vote for repeal of the tax or repeal of the increase, the board of county commissioners, on the first day of the month following the expiration of thirty days after the date it received notice of the result of the election, shall, in the case of a repeal of the tax, cease to levy the tax, or, in the case of a repeal of an increase in the rate of the tax, cease to levy the increased rate and levy the tax at the rate at which it was imposed immediately prior to the increase in rate.
(E) A board of county commissioners may by resolution reduce the rate of a tax levied under division (A)(3) of this section to a lower rate authorized by this section. Any such reduction shall be made effective on the first day of the month specified in the resolution but not sooner than the first day of the month next following the thirtieth day after certification of the resolution to the tax commissioner.
(F) The tax levied pursuant to this section shall be in addition to the tax levied by section 5739.02 of the Revised Code and any tax levied pursuant to section 5739.021 or 5739.023 of the Revised Code.
A county that levies a tax pursuant to this section shall levy a tax at the same rate pursuant to section 5741.023 of the Revised Code.
The additional tax levied by the county shall be collected pursuant to section 5739.025 of the Revised Code.
Any tax levied pursuant to this section is subject to the exemptions provided in section 5739.02 of the Revised Code and in addition shall not be applicable to sales not within the taxing power of a county under the Constitution of the United States or the Ohio Constitution.
Sec. 5739.031. (A)
The
Upon application, the tax
commissioner may
authorize
issue a direct payment permit that
authorizes a
manufacturer or other consumer, who purchases
tangible personal
property or services under circumstances that
normally make it
impossible at the time of the purchase to
determine the manner in
which the property or services will be
used, to pay the sales tax
levied by or pursuant to section
5739.02, 5739.021, 5739.023, or
5739.026 of the Revised Code or
the use tax levied by or pursuant
to section 5741.02, 5741.021,
5741.022, or 5741.023 of the
Revised
Code directly to the state,
and
waive
waives the collection of
the tax by
the vendor or
seller, but no such authority shall be
granted or
exercised except
upon application to the commissioner
and the
issuance by the
commissioner of a direct payment permit.
If a
direct payment
permit is granted, then payment of the sales
and
use taxes on all
purchases, including purchases of tangible
personal property and
services, the use of which is known at the
time of the purchase,
shall be made directly to the treasurer of
state by the permit
holder
if payment directly to the state would improve compliance
and increase the efficiency of the administration of the tax. The
commissioner may adopt rules
establishing the criteria for the
issuance of such permits.
(B) Each permit holder, on or before the twenty-third day of each month, shall make and file with the treasurer of state a return for the preceding month in such form as is prescribed by the tax commissioner and shall pay the tax shown on the return to be due. The return shall show the sum of the prices of taxable merchandise used and taxable services received, the amount of tax due from the permit holder, and such other information as the commissioner deems necessary. The commissioner, upon written request by the permit holder, may extend the time for making and filing returns and paying the tax. If the commissioner determines that a permit holder's tax liability is not such as to merit monthly filing, the commissioner may authorize the permit holder to file returns and pay the tax at less frequent intervals. The treasurer of state shall show on the return the date it was filed and the amount of the payment remitted to the treasurer. Thereafter, the treasurer immediately shall transmit all returns filed under this section to the tax commissioner.
Any permit holder required to file a return and pay the tax
under this section whose total payment for any calendar year
indicated in that section equals or exceeds the amount shown in
section 5739.032 of the Revised Code shall make each payment
required by this section in the second ensuing and each
succeeding
year by electronic funds transfer as prescribed by
section
5739.032 of the Revised Code, except as otherwise
prescribed by
that section.
(C) For purposes of reporting and remitting the tax, the
price of tangible personal property or services purchased by, or
of tangible personal property produced by, the permit holder
shall
be determined under division (G) of section 5741.01 of the
Revised
Code. Notwithstanding section 5739.033 of the Revised
Code,
all
the situs of any
purchase
transactions
transaction made by the
permit holder
are
conclusively
determined to be consummated at
is
the location where
the tangible
personal property or service is
received by the
permit holder.
(D) It shall be the duty of every permit holder required
to
make a return and pay
any
its tax under this section to keep and
preserve suitable records of purchases together with invoices of
purchases, bills of lading, asset ledgers, depreciation
schedules,
transfer journals, and such other primary and
secondary records
and documents in such form as the commissioner
requires. All such
records and other documents shall be open
during business hours to
the inspection of the
tax commissioner, and
shall be preserved for
a
period of four years, unless the
commissioner, in writing, has
authorized their destruction or
disposal at an earlier date, or by
order
or by reason of a waiver of the four-year time limitation
pursuant to section 5739.16 of the Revised Code requires that they
be
kept longer.
(E) A permit granted pursuant to this section shall continue to be valid until surrendered by the holder or canceled for cause by the tax commissioner.
(F) Persons who hold a direct payment permit that has not been canceled shall not be required to issue exemption certificates and shall not be required to pay the tax as prescribed in sections 5739.03, 5739.033, and 5741.12 of the Revised Code. Such persons shall notify vendors and sellers from whom purchases of tangible personal property or services are made, of their direct payment permit number and that the tax is being paid directly to the state. Upon receipt of such notice, such vendor or seller shall be absolved from all duties and liabilities imposed by section 5739.03 or 5741.04 of the Revised Code with respect to sales of tangible personal property or services to such permit holder.
Vendors and sellers who make sales upon which the tax is not collected by reason of the provisions of this section shall maintain records in such manner that the amount involved and identity of the purchaser may be ascertained. The receipts from such sales shall not be subject to the tax levied in section 5739.10 of the Revised Code.
Upon the cancellation or surrender of a direct payment permit, the provisions of sections 5739.03, 5741.04 and 5741.12 of the Revised Code shall immediately apply to all purchases made subsequent to such cancellation or surrender by the person who previously held such permit, and such person shall so notify vendors and sellers from whom purchases of tangible personal property or services are made, in writing, prior to or at the time of the first purchase after such cancellation or surrender. Upon receipt of such notice, the vendor shall be subject to the provisions of sections 5739.03 and 5739.10 of the Revised Code and the seller shall be subject to the provisions of section 5741.04 of the Revised Code, with respect to all sales subsequently made to such person. Failure of any such person to notify vendors or sellers from whom purchases of tangible personal property or services are made of the cancellation or surrender of a direct payment permit shall be considered as a refusal to pay the tax by the person required to issue such notice.
Sec. 5739.033. The amount of tax due pursuant to sections
5739.02, 5739.021, 5739.023, and 5739.026 of the Revised Code is
the sum of the taxes imposed pursuant to those sections at the
situs
of the consummation of the sale as determined under this
section
or, if applicable, under division (C) of section 5739.031
of the Revised Code.
(A) Except as otherwise provided in this section
and,
division (C) of section 5739.031, and section 5739.034 of the
Revised Code,
the situs of
all sales
are conclusively determined
to be consummated at
is the
vendor's
place of business.
(1) If the consumer or the consumer's agent takes possession
of the
tangible personal property at a place of business of the
vendor
where the purchase contract or agreement was made,
the
situs of the sale
is
consummated at that place of business.
(2) If the consumer or the consumer's agent takes possession
of the
tangible personal property other than at a place of
business of
the vendor, or takes possession at a warehouse or
similar
facility of the vendor,
the situs of the sale is
consummated at the
vendor's
place of business where the purchase
contract or
agreement was
made or the purchase order was received.
(3) If the vendor provides a service specified in division
(B)(3)(a), (b), (c), (d), (n), or
(o) of section 5739.01 of the
Revised
Code,
the situs of the sale is
consummated at the vendor's
place of
business
where the service is performed or the contract
or
agreement for
the service was made or the purchase order was
received.
(B) If the vendor is a transient vendor as specified in
division (B) of section 5739.17 of the Revised Code,
the situs of
the sale is
conclusively determined to be consummated at the
vendor's
temporary place of business or, if the transient vendor
is the
lessor of titled motor vehicles, titled watercraft, or
titled
outboard motors, at the location where the lessee keeps the
leased
property.
(C) If the vendor makes sales of tangible personal
property
from a stock of goods carried in a motor vehicle, from
which the
purchaser makes selection and takes possession, or from
which the
vendor sells tangible personal property the quantity of
which has
not been determined prior to the time the purchaser
takes
possession,
the situs of the sale is
conclusively determined to be
consummated
at the location of the motor vehicle when the sale is
made.
(D) If the vendor is a delivery vendor as specified in
division (D) of section 5739.17 of the Revised Code,
the situs of
the sale is
conclusively determined to be consummated at the place
where the
tangible personal property is delivered, where the
leased
property
is used, or where the service is performed or
received.
(E) If the vendor provides a service specified in division
(B)(3)(e), (g), (h), (j), (k), (l), or
(m) of section 5739.01 of
the Revised Code,
the situs of the sale is
conclusively
determined
to be
consummated at the
location of the consumer where the
service is
performed or
received.
(F) Except as provided in division (I)
or (J)
of this
section,
if:
(1) If the vendor provides a service specified in division
(B)(3)(f) or
(i) of section 5739.01 of the Revised Code,
the situs
of the sale
is
conclusively determined to be consummated at the
location of
the
telephone number or account as reflected in the
records of
the
vendor.
If, in
(2) In the case of a telecommunications service,
if the
telephone number or account is located outside this state,
the
situs of the
sale is
conclusively determined to be consummated at
the location
in this state from which the service originated.
(G) If the vendor provides lodging to transient guests as
specified in division (B)(2) of section 5739.01 of the Revised
Code,
the situs of the sale is
conclusively determined to be
consummated at
the
location where the lodging is located.
(H) If the vendor sells a warranty, maintenance or service
contract, or similar agreement as specified in division (B)(7) of
section 5739.01 of the Revised Code and the vendor is a delivery
vendor,
the situs of the sale is
conclusively determined to be
consummated at
the location of the consumer. If the vendor is not
a delivery
vendor,
the situs of the sale is
conclusively
determined to be consummated at
the vendor's place of business
where the contract or agreement
was
made, unless the warranty or
contract is a component of the
sale
of a titled motor vehicle,
titled watercraft, or titled
outboard
motor, in which case
the
situs of the sale is
conclusively determined
to be
consummated in
the county of titling.
(I) Except as otherwise provided in this division, if the
vendor
sells a prepaid authorization number or a prepaid telephone
calling card,
the situs of the
sale is
conclusively determined to
be
consummated at the vendor's place of business
and shall be
taxed
at the time of sale. If the vendor sells
a prepaid
authorization
number or prepaid telephone calling card
through a
telephone call,
electronic commerce, or any other form
of remote
commerce,
the situs of the
sale is
conclusively determined to be
made at the consumer's
shipping address, or, if there is no item
shipped, at the
consumer's billing address.
Sec. 5739.05. (A) The tax commissioner shall enforce and
administer sections 5739.01 to 5739.31 of the Revised Code, which
are hereby declared to be sections which the commissioner is
required to administer within the meaning of sections 5703.17 to
5703.37, 5703.39, 5703.41, and 5703.45 of the Revised Code. The
commissioner may adopt and promulgate, in accordance with
sections
119.01 to 119.13 of the Revised Code, such rules as
he
the
commissioner deems necessary to administer sections 5739.01 to
5739.31 of
the Revised Code.
(B)
The
Upon application, the commissioner may authorize a
vendor to
prepay
pay on a predetermined basis the
tax levied by or
pursuant to section 5739.02, 5739.021, 5739.023,
or 5739.026 of
the Revised Code upon sales of things produced or
distributed or
services provided by such vendor, and
he
the
commissioner may
waive the collection of the tax from the consumer; but no
such
authority shall be granted or exercised except upon application
to
the. The commissioner
and
shall not grant such authority unless
the commissioner finds that the
conditions of the applicant's
business are such that the
collection of the tax from the consumer
in the manner provided in
sections 5739.01 to 5739.31 of the
Revised Code, would impose an
unreasonable burden on the vendor;
nor shall the authority
granted be exercised, nor the vendors
actually selling such
products be exempted, from the other
provisions of sections
5739.01 to 5739.31 of the Revised Code,
unless the
granting of the authority would improve compliance and
increase the efficiency of the administration of the tax. The
person to whom
such authority is granted
prints plainly upon the
product sold or
offered for sale, a statement that the tax has
been paid in
advance, or otherwise conveys said information to the
consumer,
by written notice. The commissioner may require
security to his satisfaction to be filed with
shall post a notice, if required by the
commissioner, at the location where the product is offered for
sale that the tax is included in the selling price. The
comissioner may adopt rules to administer this division.him, in such amount
as
he
determines to be sufficient to secure the prepayment under
the provisions of
this section of the taxes levied by or pursuant
to section 5739.02, 5739.021,
5739.023, or 5739.026 of the Revised
Code in the manner desired
(C) The commissioner may authorize a vendor to pay, on the
basis of a prearranged agreement under this division, the tax
levied by section 5739.02 or pursuant to section 5739.021,
5739.023, or 5739.026 of the Revised Code, and waive the
requirement that the vendor maintain the complete and accurate
record of individual taxable sales and tax collected thereon
required by section 5739.11 of the Revised Code, upon application
filed with him by
of the vendor, if
he
the
commissioner finds that
the conditions of
the vendor-applicant's business are such that
the maintenance of
such records of individual taxable sales and
tax collected
thereon would impose an unreasonable burden upon the
vendor. If
the commissioner determines that such unreasonable
burden has
been imposed, the vendor and the commissioner shall
agree to the
terms and conditions of a test check to be conducted.
If the
parties are unable to agree to the terms and conditions of
the
test check, the application shall be denied. The test check
conducted shall determine the proportion that taxable retail
sales
bear to all of
his
the vendor's retail sales and the ratio
which
the tax
required to be collected under sections 5739.02, 5739.021,
and
5739.023 of the Revised Code bears to the receipts from the
vendor's taxable retail sales.
The vendor shall collect the tax on
his
the vendor's taxable
sales and
his
the vendor's liability for collecting or remitting
shall be based upon the
proportions and ratios established by the
test check, and not
upon any other basis of determination, until
such time as a
subsequent test check is made at the request of
either the vendor
or the commissioner where either party believes
that the nature
of the vendor's business has so changed as to make
the prior or
existing test check no longer representative. The
commissioner
may give notice to the vendor at any time that the
authorization
is revoked or the vendor may notify the commissioner
that
he
the
vendor no longer elects to report under the
authorization. Such notice
shall be delivered to the other party
personally or by registered
mail. The revocation or cancellation
is not effective prior to
the date of receipt of such notice.
(D) The commissioner shall, for the audit of vendors'
sales
tax accounts and records, employ a sufficient number of
auditors,
not less than one auditor for each one thousand
vendors'
certificates outstanding.
Sec. 5739.07. (A) When, pursuant to this chapter, a vendor has paid taxes to the treasurer of state or the treasurer of state's agent, or to the tax commissioner or the commissioner's agent, the commissioner shall refund to the vendor the amount of taxes paid if the vendor has refunded to the consumer the full amount of taxes the consumer paid illegally or erroneously or if the vendor has illegally or erroneously billed the consumer but has not collected the taxes from the consumer.
(B) When, pursuant to this chapter, a consumer has paid taxes directly to the treasurer of state or the treasurer of state's agent, or to the tax commissioner or the commissioner's agent, and the payment or assessment was illegal or erroneous, the commissioner shall refund to the consumer the full amount of illegal or erroneous taxes paid.
(C) The commissioner shall refund to the consumer taxes paid illegally or erroneously to a vendor only if:
(1) The commissioner has not refunded the tax to the vendor and the vendor has not refunded the tax to the consumer; or
(2) The consumer has received a refund from a manufacturer or other person, other than the vendor, of the full purchase price, but not the tax, paid to the vendor in settlement of a complaint by the consumer about the property or service purchased.
The commissioner may require the consumer to obtain or the vendor to provide a written statement confirming that the vendor has not refunded the tax to the consumer and has not filed an application for refund of the tax with the commissioner.
(D) An application for refund shall be filed with the tax commissioner on the form prescribed by the commissioner within four years from the date of the illegal or erroneous payment of the tax, unless the vendor or consumer waives the time limitation under division (A)(3) of section 5739.16 of the Revised Code. If the time limitation is waived, the refund application period shall be extended for the same period as the waiver.
(E) On the filing of an application for a refund, the commissioner shall determine the amount of refund to which the applicant is entitled. If the amount is not less than that claimed, the commissioner shall certify that amount to the director of budget and management and the treasurer of state for payment from the tax refund fund created by section 5703.052 of the Revised Code. If the amount is less than that claimed, the commissioner shall proceed in accordance with section 5703.70 of the Revised Code.
(F) When a refund is granted under this section, it shall include interest thereon as provided by section 5739.132 of the Revised Code.
Sec. 5739.104. The tax commissioner shall refund to a
person
subject to a tax under section 5739.101 of the Revised
Code the
amount of taxes paid illegally or erroneously or paid on
an
illegal or erroneous assessment. Applications for a refund
shall
be filed with the commissioner, on a form prescribed by
him
the
commissioner, within four years from the date of the
illegal or
erroneous payment of the tax, except where the person subject to
the
tax
waives the time limitation under division (C) of section
5739.16
of the Revised Code, in which case the four-year refund
limitation shall be extended for the same period of time as the
waiver.
On
On the filing of an application for a refund, the
commissioner shall
determine the amount of refund
due
and
to which
the applicant is entitled. If the amount is not less than that
claimed, the commissioner shall
certify
that
the amount
to the
treasurer of state for payment from
the
current resort area
excise
tax receipts of the municipal
corporation or township from
which
the refund is due.
When
If the amount is less than that claimed,
the
commissioner shall proceed in accordance with section 5703.70
of
the Revised Code.
If a refund is granted for payment of an illegal or erroneous assessment issued by the commissioner, the refund shall include interest computed at the rate per annum prescribed under section 5703.47 of the Revised Code.
Sec. 5739.13. (A) If any vendor collects the tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code, and fails to remit the tax to the state as prescribed, or on the sale of a motor vehicle, watercraft, or outboard motor required to be titled, fails to remit payment to a clerk of a court of common pleas as provided in section 1548.06 or 4505.06 of the Revised Code, the vendor shall be personally liable for any tax collected and not remitted. The tax commissioner may make an assessment against such vendor based upon any information in the commissioner's possession.
If any vendor fails to collect the tax or any consumer fails to pay the tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code, on any transaction subject to the tax, the vendor or consumer shall be personally liable for the amount of the tax applicable to the transaction. The commissioner may make an assessment against either the vendor or consumer, as the facts may require, based upon any information in the commissioner's possession.
An assessment against a vendor when the tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code has not been collected or paid, shall not discharge the purchaser's or consumer's liability to reimburse the vendor for the tax applicable to such transaction.
An assessment issued against either, pursuant to this section, shall not be considered an election of remedies, nor a bar to an assessment against the other for the tax applicable to the same transaction, provided that no assessment shall be issued against any person for the tax due on a particular transaction if the tax on that transaction actually has been paid by another.
The commissioner may make an assessment against any vendor
who fails to file a return or remit the proper amount of tax
required by this chapter, or against any consumer who fails to
pay
the proper amount of tax required by this chapter. When
information in the possession of the commissioner indicates that
the amount required to be collected or paid under this chapter is
greater than the amount remitted by the vendor or paid by the
consumer, the commissioner may audit a sample of the vendor's
sales or the consumer's purchases for a representative period, to
ascertain the per cent of exempt or taxable transactions or the
effective tax rate and may issue an assessment based on the
audit.
The commissioner shall make a good faith effort to reach
agreement
with the vendor or consumer in selecting a
representative sample
period.
The
tax commissioner may make an assessment, based on any
information in his possession, against any person who fails to
file a return or remit the proper amount of tax required by
section 5739.102 of the Revised Code.
The
tax commissioner may issue an assessment on any
transaction for which any tax imposed under this chapter or
Chapter 5741. of the Revised Code was due and unpaid on the date
the vendor or consumer was informed by an agent of the tax
commissioner of an investigation or audit. If the vendor or
consumer remits any payment of the tax for the period covered by
the assessment after the vendor or consumer was informed of the
investigation or audit, the payment shall be credited against the
amount of the assessment.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code. With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the commissioner within sixty days
after
service of the notice of assessment, either personally or by
certified mail, a
written petition for reassessment
in writing,
signed by
the party assessed, or
by the
that party's authorized
agent
having
knowledge of the facts, the assessment
shall become
becomes final and
the
amount of the assessment
shall be
is due
from the party
assessed
and
payable to the treasurer of state
and
remitted to the
tax
commissioner. The petition shall indicate
the
objections of
the
party assessed, but additional objections
may be
raised in
writing
if received by the commissioner prior to the
date shown on
the final
determination
by
the commissioner.
Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a
copy of the commissioner's
final determination on the petitioner
by personal service or
certified mail, and the commissioner's
decision in the
matter shall be final,
subject to appeal as
provided in section 5717.02 of the Revised
Code. Only objections
decided on the merits by the board of tax
appeals or a court shall
be given collateral estoppel or res
judicata effect in considering
an application for refund of
amounts paid pursuant to the
assessment. If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the place of business of the party assessed is located or the county in which the party assessed resides. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of
such
the entry,
the clerk
shall
enter a judgment for the state against
the party assessed in the
amount shown on the entry. The judgment
may be filed by the
clerk
in a loose-leaf book entitled "special
judgments for state,
county, and transit authority retail sales
tax" or, if
appropriate, "special judgments for resort area
excise
tax," and
shall have the same effect as
other judgments.
Execution
shall
issue upon the judgment upon
the request of the
tax
commissioner,
and all laws applicable to
sales on execution
shall
apply to sales
made under the judgment
except as otherwise
provided in this
chapter.
The portion of the assessment not paid within sixty days after the date the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until the assessment is paid. Interest shall be paid in the same manner as the tax and may be collected by issuing an assessment under this section.
(D) All money collected by the tax commissioner under this section shall be paid to the treasurer of state, and when paid shall be considered as revenue arising from the taxes imposed by or pursuant to sections 5739.01 to 5739.31 of the Revised Code.
Sec. 5739.17. (A) No person shall engage in making retail sales subject to a tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code as a business without having a license therefor, except as otherwise provided in divisions (A)(1), (2), and (3) of this section.
(1) In the dissolution of a partnership by death, the surviving partner may operate under the license of the partnership for a period of sixty days.
(2) The heirs or legal representatives of deceased persons, and receivers and trustees in bankruptcy, appointed by any competent authority, may operate under the license of the person so succeeded in possession.
(3) Two or more persons who are not partners may operate a single place of business under one license. In such case neither the retirement of any such person from business at that place of business, nor the entrance of any person, under an existing arrangement, shall affect the license or require the issuance of a new license, unless the person retiring from the business is the individual named on the vendor's license.
Except as otherwise provided in this section, each applicant for a license shall make out and deliver to the county auditor of each county in which the applicant desires to engage in business, upon a blank to be furnished by such auditor for that purpose, a statement showing the name of the applicant, each place of business in the county where the applicant will make retail sales, the nature of the business, and any other information the tax commissioner reasonably prescribes in the form of a statement prescribed by the commissioner.
At the time of making the application, the applicant shall
pay into the county treasury a license fee in the sum of
twenty-five dollars for each fixed place of business in the
county
where
that will be the situs of retail sales
will be consummated.
Upon receipt of
the
application and exhibition of the county
treasurer's receipt,
showing the payment of the license fee, the
county auditor shall
issue to the applicant a license for each
fixed place of business
designated in the application, authorizing
the applicant to
engage
in business at that location. If a
vendor's identity
changes,
the
vendor
shall apply for a new
license. If a vendor wishes to move
an existing
fixed place of
business to a new location within the
same county, the vendor
shall obtain a new vendor's license or
submit a request to the tax
commissioner to
transfer the existing
vendor's license to the new
location. When the new
location has
been verified as being within
the same county, the
tax
commissioner shall authorize the transfer
and notify the county
auditor of the
change of location. If a
vendor wishes to move an
existing fixed place of
business to
another county, the vendor's
license shall not transfer and the
vendor shall obtain a new
vendor's license from the county in
which the
business is to be
located. The form of the license
shall be
prescribed by the
commissioner. The fees collected shall
be
credited to the general
fund of the county.
A vendor that makes retail sales subject to tax under Chapter 5739. of the Revised Code pursuant to a permit issued by the division of liquor control shall obtain a vendor's license in the identical name and for the identical address as shown on the permit.
Except as otherwise provided in this section, if a vendor has no fixed place of business and sells from a vehicle, each vehicle intended to be used within a county constitutes a place of business for the purpose of this section.
(B) As used in this division, "transient vendor" means any person who makes sales of tangible personal property from vending machines located on land owned by others, who leases titled motor vehicles, titled watercraft, or titled outboard motors, who effectuates leases that are taxed according to division (H)(4) of section 5739.01 of the Revised Code, or who, in the usual course of the person's business, transports inventory, stock of goods, or similar tangible personal property to a temporary place of business or temporary exhibition, show, fair, flea market, or similar event in a county in which the person has no fixed place of business, for the purpose of making retail sales of such property. A "temporary place of business" means any public or quasi-public place including, but not limited to, a hotel, rooming house, storeroom, building, part of a building, tent, vacant lot, railroad car, or motor vehicle that is temporarily occupied for the purpose of making retail sales of goods to the public. A place of business is not temporary if the same person conducted business at the place continuously for more than six months or occupied the premises as the person's permanent residence for more than six months, or if the person intends it to be a fixed place of business.
Any transient vendor, in lieu of obtaining a vendor's
license
under division (A) of this section for counties in which
the
transient vendor has no fixed place of business, may
apply to the
tax commissioner, on a form prescribed by the commissioner,
for a
transient
vendor's license. The transient vendor's license
authorizes the
transient vendor to make retail sales in any county
in which the
transient vendor does not maintain a fixed place of
business. Any holder
of a transient vendor's license shall not be
required to obtain a separate
vendor's license from the county
auditor in that county. Upon the
tax
commissioner's determination
that an applicant is a
transient vendor, the applicant shall pay a
license fee in the
amount of twenty-five dollars, at which time
the tax
commissioner
shall issue the license. The tax
commissioner may require a
vendor to be licensed as a transient
vendor if, in the opinion of
the commissioner, such licensing is
necessary for the efficient
administration of the tax.
Any holder of a valid transient vendor's license may make retail sales at a temporary place of business or temporary exhibition, show, fair, flea market, or similar event, held anywhere in the state without complying with any provision of section 311.37 of the Revised Code. Any holder of a valid vendor's license may make retail sales as a transient vendor at a temporary place of business or temporary exhibition, show, fair, flea market, or similar event held in any county in which the vendor maintains a fixed place of business for which the vendor holds a vendor's license without obtaining a transient vendor's license.
(C) As used in this division, "service vendor" means any person who, in the usual course of the person's business, sells services described in division (B)(3)(e), (f), (g), (h), (i), (j), (k), (l), or (m) of section 5739.01 of the Revised Code.
Every service vendor shall make application to the tax commissioner for a service vendor's license. Each applicant shall pay a license fee in the amount of twenty-five dollars. Upon the commissioner's determination that an applicant is a service vendor and payment of the fee, the commissioner shall issue the applicant a service vendor's license.
Only sales described in division (B)(3)(e), (f), (g), (h), (i), (j), (k), (l), or (m) of section 5739.01 of the Revised Code may be made under authority of a service vendor's license, and that license authorizes sales to be made at any place in this state. Any service vendor who makes sales of other services or tangible personal property subject to the sales tax also shall be licensed under division (A), (B), or (D) of this section.
(D) As used in this division, "delivery vendor" means any vendor who engages in one or more of the activities described in divisions (D)(1) to (4) of this section, and who maintains no store, showroom, or similar fixed place of business or other location where merchandise regularly is offered for sale or displayed or shown in catalogs for selection or pick-up by consumers, or where consumers bring goods for repair or other service.
(1) The vendor makes retail sales of tangible personal property;
(2) The vendor rents or leases, at retail, tangible personal property, except titled motor vehicles, titled watercraft, or titled outboard motors;
(3) The vendor provides a service, at retail, described in division (B)(3)(a), (b), (c), or (d) of section 5739.01 of the Revised Code; or
(4) The vendor makes retail sales of warranty, maintenance or service contracts, or similar agreements as described in division (B)(7) of section 5739.01 of the Revised Code.
A transient vendor or a seller registered pursuant to section 5741.17 of the Revised Code is not a delivery vendor.
Delivery vendors shall apply to the tax commissioner, on a form prescribed by the commissioner, for a delivery vendor's license. Each applicant shall pay a license fee of twenty-five dollars for each delivery vendor's license, to be credited to the general revenue fund. Upon the commissioner's determination that the applicant is a delivery vendor, the commissioner shall issue the license. A delivery vendor's license authorizes retail sales to be made throughout the state. All sales of the vendor must be reported under the delivery license. The commissioner may require a vendor to be licensed as a delivery vendor if, in the opinion of the commissioner, such licensing is necessary for the efficient administration of the tax. The commissioner shall not issue a delivery vendor license to a vendor who holds a license issued under division (A) of this section.
(E) Any transient vendor who is issued a license pursuant to this section shall display the license or a copy of it prominently, in plain view, at every place of business of the transient vendor. Every owner, organizer, or promoter who operates a fair, flea market, show, exhibition, convention, or similar event at which transient vendors are present shall keep a comprehensive record of all such vendors, listing the vendor's name, permanent address, vendor's license number, and the type of goods sold. Such records shall be kept for four years and shall be open to inspection by the tax commissioner.
Sec. 5739.31. (A)(1) No person shall engage in the business of selling at retail or sell at retail incidental to any other regularly conducted business without having a license therefor, as required by sections 5739.01 to 5739.31 of the Revised Code.
(2) No person shall engage in the business of selling at retail as a transient vendor, as defined in division (B) of section 5739.17 of the Revised Code, without first having obtained a license as required by that section.
(3) No person shall engage in the business of selling at
retail as a limited vendor as defined in division (B) of section
5739.17 of the Revised Code, without first having a license as
required by that section.
(B) No person shall continue to engage in the business of
selling at retail or sell at retail incidental to any other
regularly conducted business after the license issued to that
person pursuant to section 5739.17 of the Revised Code has been
revoked under section 5739.19 of the Revised Code or while the
license is suspended by the tax commissioner under division
(B)(2)
of section 5739.30 of the Revised Code, nor shall any
person
obtain a new license from the county auditor or the tax
commissioner while such
revocation or suspension is in effect. If
a corporation's
license has been
revoked or suspended, none of its
officers, or
employees having control or supervision of or charged
with the
responsibility of filing returns and making payments of
tax due,
shall obtain a license from the county auditor or the tax
commissioner
during the period
of such
revocation or suspension.
Sec. 5739.99. (A) Whoever violates section 5739.26 or 5739.29 of the Revised Code shall be fined not less than twenty-five nor more than one hundred dollars for a first offense; for each subsequent offense such person shall, if a corporation, be fined not less than one hundred nor more than five hundred dollars, or if an individual, or a member of a partnership, firm, or association, be fined not less than twenty-five nor more than one hundred dollars, or imprisoned not more than sixty days, or both.
(B) Whoever violates division (A) of section 5739.30 of the Revised Code shall be fined not less than one hundred nor more than one thousand dollars, or imprisoned not more than sixty days, or both.
(C)(1) Whoever violates division (A)(1) of section 5739.31
of the Revised Code shall be fined not less than twenty-five nor
more than one hundred dollars. If the offender previously has
been convicted of a violation of division (A)(1) of section
5739.31 of the Revised Code,
he
the offender is guilty of a
felony
of the fourth degree.
(2) Whoever violates division (A)(2) of section 5739.31 of the Revised Code shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than ten days, or both, for the first offense; for each subsequent offense, each such person shall be fined not less than one thousand dollars nor more than twenty-five hundred dollars, or imprisoned not more than thirty days, or both. The motor vehicles and goods of any person charged with violating division (A)(2) of section 5739.31 of the Revised Code may be impounded and held pending the disposition of the charge, and may be sold at auction by the county sheriff in the manner prescribed by law to satisfy any fine imposed by this division.
(3) Whoever violates division (A)(3) of section 5739.31 of the Revised Code shall be fined not less than twenty-five nor more than one hundred dollars.
(4) Whoever violates division (B) of section 5739.31 of
the
Revised Code is guilty of a felony of the fourth degree.
Each day
that business is conducted while a vendor's license is
suspended
or revoked constitutes a separate offense.
(D) Except as otherwise provided in this section, whoever violates sections 5739.01 to 5739.31 of the Revised Code, or any lawful rule promulgated by the department of taxation under authority of such sections, shall be fined not less than twenty-five nor more than one hundred dollars.
(E) Whoever violates section 5739.12 of the Revised Code
by
failing to remit to the state the tax collected under section
5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code is
guilty of a felony of the fourth degree and shall suffer the loss
of
his
the person's vendor's license as required by section
5739.17 of the
Revised Code. A person shall not be eligible for a
vendor's
license for two years following conviction.
(F) Whoever violates division
(D)(E) of section 5739.17 of
the Revised Code is guilty of failure to display a transient
or
limited vendor's license, a minor misdemeanor. A sheriff or
police officer in a municipal corporation may enforce this
division. The prosecuting attorney of a county shall inform the
tax commissioner of any instance when a complaint is brought
against a transient
or limited vendor pursuant to this division.
(G) Whoever violates section 5739.103 of the Revised Code
shall be fined not less than twenty-five nor more than one
hundred
dollars. If the offender previously has been convicted
of
violating that section,
he
the offender is guilty of a felony
of
the fourth degree.
(H) The penalties provided in this section are in addition to any penalties imposed by the tax commissioner under section 5739.133 of the Revised Code.
Sec. 5741.01. As used in this chapter:
(A) "Person" includes individuals, receivers, assignees, trustees in bankruptcy, estates, firms, partnerships, associations, joint-stock companies, joint ventures, clubs, societies, corporations, business trusts, governments, and combinations of individuals of any form.
(B) "Storage" means and includes any keeping or retention in this state for use or other consumption in this state.
(C) "Use" means and includes the exercise of any right or power incidental to the ownership of the thing used. A thing is also "used" in this state if its consumer gives or otherwise distributes it, without charge, to recipients in this state.
(D) "Purchase" means acquired or received for a consideration, whether such acquisition or receipt was effected by a transfer of title, or of possession, or of both, or a license to use or consume; whether such transfer was absolute or conditional, and by whatever means the transfer was effected; and whether the consideration was money, credit, barter, or exchange. Purchase includes production, even though the article produced was used, stored, or consumed by the producer. The transfer of copyrighted motion picture films for exhibition purposes is not a purchase, except such films as are used solely for advertising purposes.
(E) "Seller" means the person from whom a purchase is made, and includes every person engaged in this state or elsewhere in the business of selling tangible personal property or providing a service for storage, use, or other consumption or benefit in this state; and when, in the opinion of the tax commissioner, it is necessary for the efficient administration of this chapter, to regard any salesman, representative, peddler, or canvasser as the agent of a dealer, distributor, supervisor, or employer under whom the person operates, or from whom the person obtains tangible personal property, sold by the person for storage, use, or other consumption in this state, irrespective of whether or not the person is making such sales on the person's own behalf, or on behalf of such dealer, distributor, supervisor, or employer, the commissioner may regard the person as such agent, and may regard such dealer, distributor, supervisor, or employer as the seller. "Seller" does not include any person to the extent the person provides a communications medium, such as, but not limited to, newspapers, magazines, radio, television, or cable television, by means of which sellers solicit purchases of their goods or services.
(F) "Consumer" means any person who has purchased tangible personal property or has been provided a service for storage, use, or other consumption or benefit in this state. "Consumer" does not include a person who receives, without charge, tangible personal property or a service.
A person who performs a facility management or similar service contract for a contractee is a consumer of all tangible personal property and services purchased for use in connection with the performance of such contract, regardless of whether title to any such property vests in the contractee. The purchase of such property and services is not subject to the exception for resale under division (E)(1) of section 5739.01 of the Revised Code.
(G)(1) "Price," except in the case of watercraft, outboard motors, or new motor vehicles, means the aggregate value in money of anything paid or delivered, or promised to be paid or delivered, by a consumer to a seller in the complete performance of the transaction by which tangible personal property has been purchased or a service has been provided for storage, use, or other consumption or benefit in this state, without any deduction or exclusion on account of the cost of the property sold, cost of materials used, labor or service cost, interest, discount paid or allowed after the sale is consummated, or any other expense. If the transaction consists of the rental or lease of tangible personal property, "price" means the aggregate value in money of anything paid or delivered, or promised to be paid or delivered by the lessee to the lessor, in the complete performance of the rental or lease, without any deduction or exclusion of tax, interest, labor or service charge, damage liability waiver, termination or damage charge, discount paid or allowed after the lease is consummated, or any other expense. Except as provided in division (G)(6) of this section, the tax shall be calculated and collected by the lessor on each payment made by the lessee. If a consumer produces the tangible personal property used by the consumer, the price is the produced cost of such tangible personal property. The tax collected by the seller from the consumer under such sections is not a part of the price, but is a tax collection for the benefit of the state, and of counties levying an additional use tax pursuant to section 5741.021 or 5741.023 of the Revised Code and of transit authorities levying an additional use tax pursuant to section 5741.022 of the Revised Code and, except for the discount authorized under section 5741.12 of the Revised Code and the effects of any rounding pursuant to section 5703.055 of the Revised Code, no person other than the state or such a county or transit authority shall derive any benefit from the collection or payment of such tax.
(2) In the case of watercraft, outboard motors, or new motor vehicles, "price" has the same meaning as in division (H) of section 5739.01 of the Revised Code.
(3) In the case of a nonresident business consumer that purchases and uses tangible personal property outside this state and subsequently temporarily stores, uses, or otherwise consumes such tangible personal property in the conduct of business in this state, the consumer or the tax commissioner may determine the price based on the value of the temporary storage, use, or other consumption, in lieu of determining the price pursuant to division (G)(1) of this section. A price determination made by the consumer is subject to review and redetermination by the commissioner.
(4) In the case of tangible personal property held in this state as inventory for sale or lease, and that is temporarily stored, used, or otherwise consumed in a taxable manner, the price is the value of the temporary use. A price determination made by the consumer is subject to review and redetermination by the commissioner.
(5) In the case of tangible personal property originally
purchased and used by the consumer outside this state, and that
becomes permanently stored, used, or otherwise consumed in this
state more than six months after its acquisition by the consumer,
the consumer or the
tax commissioner may determine the price
based
on the current value of such tangible personal property, in
lieu
of determining the price pursuant to division (G)(1) of this
section. A price determination made by the consumer is subject
to
review and redetermination by the commissioner.
(6) In the case of the purchase or lease of any motor vehicle designed by the manufacturer to carry a load of not more than one ton, watercraft, outboard motor, or aircraft, or the lease of any tangible personal property, other than motor vehicles designed by the manufacturer to carry a load of more than one ton, to be used by the lessee primarily for business purposes, the tax shall be collected by the vendor at the time the lease is consummated and calculated by the vendor on the basis of the total amount to be paid by the lessee under the lease agreement. If the total amount of the consideration for the lease includes amounts that are not calculated at the time the lease is executed, the tax shall be calculated and collected by the vendor at the time such amounts are billed to the lessee. In the case of an open-end lease, the tax shall be calculated by the vendor on the basis of the total amount to be paid during the initial fixed term of the lease, and then for each subsequent renewal period as it comes due. As used in division (G)(6) of this section only, "motor vehicle" has the same meaning as in section 4501.01 of the Revised Code.
(H) "Nexus with this state" means that the seller engages in continuous and widespread solicitation of purchases from residents of this state or otherwise purposefully directs its business activities at residents of this state.
(I) "Substantial nexus with this state" means that the seller has sufficient contact with this state, in accordance with Section 8 of Article I of the Constitution of the United States, to allow the state to require the seller to collect and remit use tax on sales of tangible personal property or services made to consumers in this state. "Substantial nexus with this state" exists when the seller does any of the following:
(1) Maintains a place of business within this state, whether operated by employees or agents of the seller, by a member of an affiliated group, as described in division (B)(3)(e) of section 5739.01 of the Revised Code, of which the seller is a member, or by a franchisee using a trade name of the seller;
(2) Regularly has employees, agents, representatives, solicitors, installers, repairmen, salesmen, or other individuals in this state for the purpose of conducting the business of the seller;
(3) Uses a person in this state for the purpose of receiving or processing orders of the seller's goods or services;
(4) Makes regular deliveries of tangible personal property into this state by means other than common carrier;
(5) Has membership in an affiliated group, as described in division (B)(3)(e) of section 5739.01 of the Revised Code, at least one other member of which has substantial nexus with this state;
(6) Owns tangible personal property that is rented or leased to a consumer in this state, or offers tangible personal property, on approval, to consumers in this state;
(7) Is registered with the secretary of state to do business in this state or is registered or licensed by any state agency, board, or commission to transact business in this state or to make sales to persons in this state;
(8) Has any other contact with this state that would allow this state to require the seller to collect and remit use tax under Section 8 of Article I of the Constitution of the United States.
(J) "Fiscal officer" means, with respect to a regional transit authority, the secretary-treasurer thereof, and with respect to a county which is a transit authority, the fiscal officer of the county transit board appointed pursuant to section 306.03 of the Revised Code or, if the board of county commissioners operates the county transit system, the county auditor.
(K) "Territory of the transit authority" means all of the area included within the territorial boundaries of a transit authority as they from time to time exist. Such territorial boundaries must at all times include all the area of a single county or all the area of the most populous county which is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(L) "Transit authority" means a regional transit authority created pursuant to section 306.31 of the Revised Code or a county in which a county transit system is created pursuant to section 306.01 of the Revised Code. For the purposes of this chapter, a transit authority must extend to at least the entire area of a single county. A transit authority which includes territory in more than one county must include all the area of the most populous county which is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(M) "Providing a service" has the same meaning as in division (X) of section 5739.01 of the Revised Code.
(N) "Other consumption" includes receiving the benefits of a service.
(O) "Lease" means any transfer for a consideration of the possession of and right to use, but not title to, tangible personal property for a fixed period of time greater than twenty-eight days or for an open-ended period of time with a minimum fixed period of more than twenty-eight days.
Sec. 5741.10. Refunds of taxes paid pursuant to this chapter by a seller or consumer illegally or erroneously shall be made in the same manner as refunds are made to a vendor or consumer under section 5739.07 of the Revised Code.
Sec. 5741.13. If any person required by section 5741.12 of
the Revised Code to make a return to the tax commissioner fails
to
make such return at the time required by or under authority of
such section, the commissioner may make an assessment against
such
person, based upon any information within
his
the
commissioner's
possession.
If information in the possession of the
commissioner
indicates
that the tax paid by any consumer is less than that due,
the
commissioner may audit a sample of that consumer's purchases
for
a representative period and may issue an assessment based
thereon. The commissioner shall make a good faith effort to
reach
agreement with the consumer in selecting a representative
sample
period. The commissioner shall give to such person
written notice
of
such
the assessment. Such notice
may be served
upon such
person
personally, or by certified mail
as provided in section
5703.37 of the Revised Code.
If information in the possession of the commissioner indicates that the tax paid by any consumer is less than that due, the commissioner may audit a representative sample of that consumer's purchases and may issue an assessment based thereon. The commissioner shall make a good faith effort to reach agreement with the consumer on selecting a representative sample.
If information in the possession of the commissioner indicates that the amount required to be collected or paid under this chapter is greater than the amount remitted by the seller, the commissioner may audit a representative sample of the seller's sales to determine the per cent of exempt or taxable transactions or the effective tax rate and may issue an assessment based on the audit. The commissioner shall make a good faith effort to reach agreement with the seller in selecting a representative sample.
Sec. 5743.05. All stamps provided for by section 5743.03 of the Revised Code, when procured by the tax commissioner, shall be immediately delivered to the treasurer of state, who shall execute a receipt therefor showing the number and aggregate face value of each denomination received by the treasurer of state and any other information that the commissioner requires to enforce the collection and distribution of all taxes imposed under section 5743.024 or 5743.026 of the Revised Code, and deliver the receipt to the commissioner. The treasurer of state shall sell the stamps and, on the fifth day of each month, make a report showing all sales made during the preceding month, with the names of purchasers, the number of each denomination, the aggregate face value purchased by each, and any other information as the commissioner requires to enforce the collection and distribution of all taxes imposed under section 5743.024 of the Revised Code, and deliver it to the commissioner. The treasurer of state shall be accountable for all stamps received and unsold. The stamps shall be sold and accounted for at their face value, except the commissioner shall, by rule certified to the treasurer of state, authorize the sale of stamps and meter impressions to wholesale or retail dealers in this state, or to wholesale dealers outside this state, at a discount of not less than one and eight-tenths per cent or more than ten per cent of their face value, as a commission for affixing and canceling the stamps or meter impressions.
The
tax commissioner, by rule certified to the treasurer
of
state, shall
authorize the delivery of stamps and meter
impressions to wholesale and retail
dealers in this state and to
wholesale dealers outside this state on credit
when the purchaser
files with the commissioner a bond to the state in the
amount and
in the form prescribed by the commissioner, and with surety to the
satisfaction of the treasurer
of state, conditioned on payment to
the treasurer
of state within thirty days for stamps or meter
impressions delivered within
that time. The
tax commissioner
shall limit delivery of stamps and meter
impressions on credit to
the period running from the first day of July of the
fiscal year
until the first day of the following May.
Any discount allowed as
a commission for affixing and canceling stamps or meter
impressions shall be
allowed with respect to sales of stamps and
meter impressions on credit.
The treasurer
of state shall redeem and pay for any
destroyed, unused, or spoiled tax stamps and any unused meter
impressions at their net value, and
shall refund to wholesale
dealers the net amount of state and county taxes paid erroneously
or paid on cigarettes
which
that have been sold in interstate or
foreign commerce or
which
that have become unsalable, and the net
amount of county taxes that were paid on cigarettes that have
been
sold at retail or for retail sale outside a taxing county.
An
An
application for a refund of tax shall be filed with the
tax
commissioner, on the form prescribed by the commissioner for
that
purpose,
within three years from the date the tax stamps are
destroyed or
spoiled, from the date of the erroneous payment, or
from the date
that cigarettes on which taxes have been paid have
been sold in
interstate or foreign commerce or have become
unsalable.
On
On the
filing of the application, the commissioner
shall
determine the
amount of refund
due
to which the applicant is
entitled, payable from receipts of
the state tax, and,
if
applicable, payable from receipts of a
county tax
and. If the
amount is less than that claimed, the commission shall certify
such amounts
the amount to the director of budget and
management
and
treasurer of state for payment from the tax refund
fund
created
by section 5703.052 of the Revised Code.
When
If the
amount is less than that claimed, the commissioner shall proceed
in accordance with section 5703.70 of the Revised Code.
If a refund is granted for payment of an illegal or erroneous assessment issued by the department, the refund shall include interest on the amount of the refund from the date of the overpayment. The interest shall be computed at the rate per annum prescribed by section 5703.47 of the Revised Code.
Sec. 5743.081. (A) If any wholesale dealer or retail dealer fails to pay the tax levied under sections 5743.02, 5743.023, 5743.024, or 5743.026 of the Revised Code as required by sections 5743.01 to 5743.20 of the Revised Code, and by the rules of the tax commissioner, or fails to collect the tax from the purchaser or consumer, the commissioner may make an assessment against the wholesale or retail dealer based upon any information in the commissioner's possession.
The commissioner may make an assessment against any wholesale or retail dealer who fails to file a return required by section 5743.03 or 5743.025 of the Revised Code.
No assessment shall be made against any wholesale or retail
dealer for any taxes imposed under sections 5743.02, 5743.023,
5743.024, or 5743.026 of the Revised Code more than
three years
after the last
day of the calendar month
which
that immediately
follows
the
semiannual period prescribed in section 5743.03 of the
Revised
Code in
which the sale was made, or more than three years
after
the semiannual return for such period is filed, whichever is
later. This section does not bar an assessment against any
wholesale or retail dealer who fails to file a return as required
by section
5743.025 or 5743.03
or 5743.025 of the Revised Code, or
who files
a
fraudulent return.
A penalty of up to thirty per cent may be added to the amount of every assessment made under this section. The commissioner may adopt rules providing for the imposition and remission of penalties added to assessments made under this section.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
The notice shall specify separately any portion
of the
assessment
that represents a county tax.
With the notice,
the commissioner shall provide instructions on how to petition for
reassessment and request a hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days
after
service of the notice of assessment, either personally
or by
certified mail, a
written petition for reassessment
in
writing, signed by
the party
assessed, or
by the
that party's
authorized agent
having
knowledge of the facts, the assessment
shall become
becomes
final
and the
amount of the assessment
shall
be
is due and payable from
the party
assessed to the treasurer of
state. The petition shall
indicate
the objections of the party
assessed, but additional
objections
may be raised in writing if
received
by the
commissioner prior to the date shown on
the final
determination
by
the commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction to
an
assessment
as
the commissioner finds proper. The commissioner shall
serve a
copy of the final
determination on
the petitioner
by
personal
service or
certified mail, and the
commissioner's decision in the
matter
shall be final,
subject
to appeal as provided in section
5717.02 of the Revised
Code.
Only
objections decided on the
merits
by the board of tax
appeals
or a
court shall be given
collateral
estoppel or res
judicata
effect in
considering an
application for
refund of
amounts paid
pursuant to
the assessment.
If the petition
has been properly filed, the commissioner shall proceed under
section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the wholesale or retail dealer's place of business is located or the county in which the party assessed resides. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
commissioner's
entry,
the clerk shall enter a judgment for the
state
against the party
assessed in the amount shown on the entry.
The
judgment may be
filed by the clerk in a loose-leaf book
entitled
"special
judgments for state cigarette sales tax," and
shall have the same
effect as
other judgments. Execution shall
issue upon the
judgment upon
the request of the tax commissioner,
and all laws
applicable to
sales on execution shall apply to sales
made under
the judgment,
except as otherwise provided in sections
5743.01 to
5743.20 of the Revised
Code.
The portion of the assessment not paid within
sixty days
after the assessment was issued shall bear
interest
at the rate
per annum prescribed by section 5703.47 of the
Revised Code from
the day the
tax
commissioner issues the assessment until it is
paid. Interest shall be paid
in the same manner as the
tax and
may be collected by the issuance of an
assessment under this
section.
(D) All money collected by the tax commissioner under this section shall be paid to the treasurer of state, and when paid shall be considered as revenue arising from the taxes imposed by sections 5743.01 to 5743.20 of the Revised Code.
Sec. 5743.53. (A) The treasurer of state shall refund to a taxpayer any of the following:
(1) Any tobacco products tax paid erroneously;
(2) Any tobacco products tax paid on an illegal or erroneous assessment;
(3) Any tax paid on tobacco products that have been sold or shipped to retail or wholesale dealers outside this state, returned to the manufacturer, or destroyed by the taxpayer with the prior approval of the tax commissioner.
Any application for refund shall be filed with the tax
commissioner on a form prescribed by
him
the commissioner for
that
purpose. The
commissioner may not pay any refund on an
application for refund
filed with the
tax commissioner more than
three years from the
date of payment of the tax.
(B)
Upon
On the filing of the application for refund, the
commissioner shall determine the amount of the refund
due and
to
which the applicant is entitled. If the amount is not less than
that claimed, the commissioner shall
certify
that
the amount to
the
director of budget and management and
to the treasurer of
state
for payment from the tax refund fund
created by section
5703.052
of the Revised Code.
When
If the amount is less than that
claimed, the
commissioner shall proceed in accordance with section
5703.70 of
the Revised Code.
If a refund is granted for payment of an illegal or erroneous assessment issued by the department of taxation, the refund shall include interest on the amount of the refund from the date of the overpayment. The interest shall be computed at the rate per annum in the manner prescribed by section 5703.47 of the Revised Code.
(C) If any person entitled to a refund of tax under this section or section 5703.70 of the Revised Code is indebted to the state for any tax administered by the tax commissioner, or any charge, penalties, or interest arising from such tax, the amount allowable on the application for refund first shall be applied in satisfaction of the debt.
(D) In lieu of granting a refund payable under division (A)(3) of this section, the tax commissioner may allow a taxpayer to claim a credit of the amount of refundable tax on the return for the period during which the tax became refundable. The commissioner may require taxpayers to submit any information necessary to support a claim for a credit under this section, and the commissioner shall allow no credit if that information is not provided.
Sec. 5743.56. (A) Any person required to pay the tax
imposed by section 5743.51, 5743.62, or 5743.63 of the Revised
Code is personally liable for the tax. The tax commissioner may
make an assessment, based upon any information in the
commissioner's possession, against any person who fails to file a
return or pay any tax, interest, or additional charge as required
by this chapter. The commissioner shall give the person assessed
written notice of such assessment
as
in the manner provided in
section 5703.37
of the
Revised
Code.
With the notice, the
commissioner shall provide instructions on how to petition for
reassessment and request a hearing on the petition.
(B) When the information in the possession of the tax commissioner indicates that a person liable for the tax imposed by section 5743.51, 5743.62, or 5743.63 of the Revised Code has not paid the full amount of tax due, the commissioner may audit a representative sample of the person's business and may issue an assessment based on such audit.
(C) A penalty of up to fifteen per cent may be added to all amounts assessed under this section. The tax commissioner may adopt rules providing for the imposition and remission of such penalties.
(D) Unless the person assessed files with the tax
commissioner within sixty days after service of the
notice of
assessment, either personally or by certified mail, a
written
petition
for
reassessment
in writing
signed by the person assessed
or
the
that person's
authorized
agent
of the person assessed
having knowledge of the
facts,
the
assessment becomes final and
the amount of the
assessment is due
and
payable from the person
assessed to the
treasurer of state. A
petition shall indicate the
objections
to
the assessment of the
person assessed, but
additional objections
may be raised in
writing
if received by the
commissioner prior to
the date shown on the final determination
of
the
tax commissioner. The commissioner shall
grant the petitioner
a
hearing on the petition,
unless waived by the petitioner.
The commissioner may make
such correction to
the assessment
as the commissioner finds proper and shall issue a
final
determination
thereon. The commissioner shall serve a copy of the
final
determination on
the petitioner
either by personal service
or by
certified mail,
and the
commissioner's decision in the
matter is final, subject to appeal
under section 5717.02 of the
Revised Code.
If the petition has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(E) After an assessment becomes final, if any portion of the assessment, including accrued interest, remains unpaid, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the person assessed resides or in which the person assessed conducts business. If the person assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of the
entry,
the clerk shall
enter a judgment for the state against the
person assessed in the
amount shown
to be due
on the entry. The
judgment may be filed by
the clerk
in
a loose-leaf book entitled
"special judgments for
state
tobacco
products tax," and shall have
the same effect as
other judgments.
Execution shall issue upon the
judgment upon
the
request of the
tax commissioner, and all laws
applicable to
sales
on execution
shall apply to sales made under
the judgment.
The portion of the assessment not paid within
sixty days
after the day the assessment is issued shall
bear interest
at the
rate per annum prescribed by section 5703.47 of the
Revised Code
from the day the
tax commissioner issues the assessment
until the
assessment is paid. Interest shall be paid in the
same manner as
the tax and may be collected by issuing an
assessment under this
section.
(F) If the
tax commissioner believes that collection of the
tax
will be jeopardized unless proceedings to collect or secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the tax.
Upon
Immediately upon the issuance of the
jeopardy assessment,
the
commissioner
immediately shall file an
entry with the clerk
of the
court of common pleas in the manner
prescribed by division
(E) of
this section. Notice of the
jeopardy assessment shall be
served
on the person assessed or the
legal representative
of the person
assessed, as provided in
section 5703.37 of the
Revised Code,
within
five days of the
filing of the entry with the clerk. The
total
amount assessed is
immediately due and payable, unless the
person
assessed files a
petition for reassessment in accordance
with
division (D) of this
section and provides security in a form
satisfactory to the
commissioner and in an amount sufficient to
satisfy the unpaid
balance of the assessment. Full or partial
payment of the
assessment does not prejudice the commissioner's
consideration of
the petition for reassessment.
(G) All money collected by the tax commissioner under this section shall be paid to the treasurer of state as revenue arising from the tax imposed by sections 5743.51, 5743.62, and 5743.63 of the Revised Code.
Sec. 5745.11. An application to refund to a taxpayer the amount of taxes paid on any illegal, erroneous, or excessive payment of tax under this chapter, including assessments, shall be filed with the tax commissioner within three years after the date of the illegal, erroneous, or excessive payment of the tax, or within any additional period allowed by division (A) of section 5745.12 of the Revised Code. The application shall be filed in the form prescribed by the tax commissioner.
Upon
On the filing of a refund application, the
tax
commissioner
shall determine the amount of refund
due and
to which
the applicant is entitled. If the amount is not less than that
claimed, the commissioner shall
certify the amount of
the refund
to
each municipal corporation to which the overpayment
was made.
The
If the amount is less than that claimed, the commissioner
shall proceed in accordance with divisions (A) to (C) of section
5703.70 of the Revised
Code and shall certify to each municipal
corporation to which the overpayment was made the amount to be
refunded under division (B) or (C) of that section.
On receipt of a certification of a refund, the
municipal
corporation shall issue a refund to the
taxpayer,
or, upon the
taxpayer's written request, shall credit
the amount
of the refund
against the taxpayer's estimated tax
payments to the
municipal
corporation for an ensuing taxable year.
Any
Any portion of the refund not issued within ninety days after the tax commissioner's notice is received by the municipal corporation shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the ninetieth day after such notice is received by the municipal corporation until the day the refund is paid or credited. On an illegal or erroneous assessment, interest shall be paid at that rate from the date of payment on the illegal or erroneous assessment until the day the refund is paid or credited.
Sec. 5745.12. (A) If any taxpayer required to file a report under this chapter fails to file the report within the time prescribed, files an incorrect report, or fails to remit the full amount of the tax due for the period covered by the report, the tax commissioner may make an assessment against the taxpayer for any deficiency for the period for which the report or tax is due, based upon any information in the commissioner's possession.
The tax commissioner shall not make or issue an assessment
against
a taxpayer
more than three years after the later of the
final date the
report subject to assessment was required to be
filed or the date
the report was filed. Such time limit may be
extended if both
the taxpayer and the commissioner consent in
writing to the
extension. Any such extension shall extend the
three-year time
limit in section 5745.11 of the Revised Code for
the same period of time. There shall be no bar or limit to an
assessment against a taxpayer that fails to file a report
subject
to assessment as required by this chapter, or that files a
fraudulent
report. The commissioner shall give the
party
taxpayer
assessed
written notice of the assessment
by personal service or
certified
mail
as provided in section 5703.37 of the Revised Code.
With the notice, the commissioner shall provide instructions on
how to petition for reassessment and request a hearing on the
petition.
(B) Unless the taxpayer
to which the notice of
assessment
is
directed
assessed files with the
tax commissioner within sixty
days
after
service
thereof
of the notice of assessment, either
personally or by certified
mail, a
written
petition for
reassessment
in writing, signed by the
authorized
agent of the
taxpayer assessed having knowledge of
the facts,
and
makes payment
of the portion of the assessment
required by
division (E) of this
section, the assessment
shall
become
becomes final,
and the amount
of the assessment
shall
be
is due and payable from the
taxpayer to
the treasurer of
state. The petition shall indicate
the
taxpayer's objections,
but additional objections may be raised
in
writing if received
by the commissioner
prior to the date shown on
the final
determination
by the
commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction
to
the assessment
as the commissioner finds proper. The
commissioner shall
serve a
copy of the final
determination on the petitioner
by
personal
service or by
certified mail, and the
commissioner's decision in
the
matter
shall be final,
subject
to appeal
as provided in
section 5717.02 of the Revised
Code. Only objections decided on
the merits by the board of tax
appeals or a court shall be given
collateral estoppel or res
judicata effect in considering an
application for refund of
amounts paid pursuant to the assessment.
If the petition has been properly filed, the commissioner shall
proceed under section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the taxpayer has an office or place of business in this state, the county in which the taxpayer's statutory agent is located, or Franklin county.
Immediately upon the filing of the entry, the clerk shall enter a judgment against the taxpayer assessed in the amount shown on the entry. The judgment may be filed by the clerk in a loose-leaf book entitled "special judgments for municipal income taxes," and shall have the same effect as other judgments. Execution shall issue upon the judgment upon the request of the tax commissioner, and all laws applicable to sales on execution shall apply to sales made under the judgment.
The portion of an assessment not paid within
sixty days after
the day the assessment was issued shall bear interest
at the rate
per annum prescribed by section 5703.47 of the
Revised Code
from
the day the
tax commissioner issues the assessment
until the
assessment is paid. Interest shall be paid in the
same manner as
the tax and may be collected by issuing an
assessment under this
section.
(D) All money collected under this section shall be credited and distributed to the municipal corporation to which the money is owed based on the assessment issued under this section.
(E)
The portion of an assessment
which must be paid
upon
the
filing of a petition for reassessment shall be as
follows:
(1) If the sole item objected to is the assessed penalty
or
interest, payment of the assessment excluding any penalty
is
required.
(2) If the taxpayer that is assessed failed to file, prior
to
the date of issuance of the assessment, the annual report
required by section 5745.03 of the Revised Code, full
payment
of
the assessment including
penalty and interest is required.
(3) If the taxpayer that is assessed filed, prior to the
date
of issuance of the assessment, the annual report required by
section 5745.03 of the Revised Code,
and a balance of the taxes
shown due on the reports as
computed on the reports remains
unpaid, payment of only that
portion of the assessment
representing the unpaid balance is
required.
(4) If none of the conditions specified in divisions
(E)(1)
to (3) of this section apply, no payment is required
If the tax
commissioner believes that collection of the tax imposed by this
chapter will be jeopardized unless proceedings to collect or
secure collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the taxpayer
liable for the tax. Immediately upon the issuance of the jeopardy
assessment, the commissioner shall file an entry with the clerk of
the court of common pleas in the manner prescribed by division (C)
of this section. Notice of the jeopardy assessment shall be
served on the taxpayer assessed or the taxpayer's legal
representative in the manner provided in section 5703.37 of the
Revised Code within five days of the filing of the entry with the
clerk. The total amount assessed is immediately due and payable,
unless the taxpayer assessed files a petition for reassessment in
accordance with division (B) of this section and provides security
in a form satisfactory to the commissioner and in an amount
sufficient to satisfy the unpaid balance of the assessment. Full
or partial payment of the assessment does not prejudice the
commissioner's consideration of the petition for reassessment.
(F) Notwithstanding the fact that a petition for reassessment is pending, the taxpayer may pay all or a portion of the assessment that is the subject of the petition. The acceptance of a payment by the treasurer of state does not prejudice any claim for refund upon final determination of the petition.
If upon final determination of the petition an error in the assessment is corrected by the tax commissioner, upon petition so filed or pursuant to a decision of the board of tax appeals or any court to which the determination or decision has been appealed, so that the amount due from the taxpayer under the corrected assessment is less than the portion paid, there shall be issued to the taxpayer, its assigns, or legal representative a refund in the amount of the overpayment as provided by section 5745.11 of the Revised Code, with interest on that amount as provided by section 5745.11 of the Revised Code.
Sec. 5747.025. (A) The personal exemption for the taxpayer and the taxpayer's spouse shall be seven hundred fifty dollars each for the taxable year beginning in 1996, eight hundred fifty dollars each for the taxable year beginning in 1997, nine hundred fifty dollars each for the taxable year beginning in 1998, and one thousand fifty dollars each for the taxable year beginning in 1999 and taxable years beginning after 1999. The personal exemption amount prescribed in this division for taxable years beginning after 1999 shall be adjusted each year in the manner prescribed in division (C) of this section.
(B) The personal exemption for each dependent shall be eight hundred fifty dollars for the taxable year beginning in 1996, and one thousand fifty dollars for the taxable year beginning in 1997 and taxable years beginning after 1997. The personal exemption amount prescribed in this division for taxable years beginning after 1999 shall be adjusted each year in the manner prescribed in division (C) of this section.
(C)
Each
In September of each year, beginning in 2000, the
tax commissioner shall
determine the
percentage
increase in the
gross domestic product
deflator determined
by the bureau of
economic analysis of the
United States department of commerce
from
the first day of
July
January of
the preceding calendar year to
the last
day of
June
December of the
current
preceding
year, and
adjust the personal exemption amount for taxable years
beginning
in
the current calendar year by multiplying that amount
by the
percentage increase in the gross domestic product deflator
for
that
period; adding the resulting product to the personal
exemption amount for
taxable years beginning in the preceding
calendar year; and
rounding the resulting sum upward to the
nearest
multiple of fifty dollars. The
tax commissioner shall not
make
such an adjustment in any calendar year in which the amount
resulting
from the adjustment would be less than the amount
resulting from
the adjustment in the preceding calendar year.
Sec. 5747.06. (A) Except as provided in division (E)(3)
of
this section, every employer, including the state and its
political subdivisions, maintaining an office or transacting
business within this state and making payment of any compensation
to an employee who is a taxpayer shall deduct and withhold from
such compensation for each payroll period a tax computed in such
manner as to result, as far as practicable, in withholding from
the employee's compensation during each calendar year an amount
substantially equivalent to the tax reasonably estimated to be
due
from the employee under this chapter and Chapter 5748. of the
Revised Code with respect to the amount of such compensation
included in
his
the employee's adjusted gross income during the
calendar year. The employer shall deduct and withhold the tax on
the date
that the employer directly, indirectly, or constructively
pays the
compensation to, or credits the compensation to the
benefit of,
the employee. The method of determining the amount to
be
withheld shall be prescribed by rule of the tax commissioner.
In addition to any other exclusions from withholding permitted under this section, no tax shall be withheld by an employer from the compensation of an employee when such compensation is paid for:
(1) Agricultural labor as defined in division G of section 3121 of Title 26 of the United States Code;
(2) Domestic service in a private home, local college club, or local chapter of a college fraternity or sorority;
(3) Service performed in any calendar quarter by an employee unless the cash remuneration paid for such service is three hundred dollars or more and such service is performed by an individual who is regularly employed by such employer to perform such service;
(4) Services performed for a foreign government or an international organization;
(5) Services performed by an individual under the age of
eighteen in the delivery or distribution of newspapers or
shopping
news, not including delivery or distribution to any
point for
subsequent delivery or distribution, or when performed
by such
individual under the age of eighteen under an arrangement
where
newspapers or magazines are to be sold by
him
the
individual at a
fixed price,
his
the individual's
compensation being based on the
retention of the
excess of such price over the amount at which the
newspapers or
magazines are charged to
him
the individual;
(6) Services not in the course of the employer's trade or business to the extent paid in any medium other than cash.
(B) Every employer required to deduct and withhold tax
from
the compensation of an employee under this chapter shall
furnish
to each employee, with respect to the compensation paid
by such
employer to such employee during the calendar year, on or
before
the thirty-first day of January of the succeeding year,
or, if
his
the employee's employment is terminated before the
close of such
calendar year, within thirty days from the date on which the
last
payment of compensation was made, a written statement as
prescribed by the tax commissioner showing the amount of
compensation paid by the employer to the employee, the amount
deducted and withheld as state income tax, any amount deducted
and
withheld as school district income tax for each applicable
school
district, and any other information as the commissioner
prescribes.
(C) The failure of an employer to withhold tax as required
by this section
or to remit such tax as required by law does not
relieve an employee from the liability for the tax.
The failure of
an employer to remit the tax as required by law does not relieve
an employee from liability for the tax if the tax commissioner
ascertains that the employee colluded with the employer with
respect to the failure to remit the tax.
(D) If an employer fails to deduct and withhold any tax as required, and thereafter the tax is paid, the tax so required to be deducted and withheld shall not be collected from the employer, but the employer is not relieved from liability for penalties and interest otherwise applicable in respect to the failure to deduct and withhold the tax.
(E) To ensure that taxes imposed pursuant to Chapter 5748. of the Revised Code are deducted and withheld as provided in this section:
(1)
Each
An employer shall request that each
of
his
employees
employee furnish the name of the employee's school
district of
residence;
(2) Each employee shall furnish
his
the employer
with
sufficient and correct information to enable the employer to
withhold the taxes imposed under Chapter 5748. of the Revised
Code. The employee shall provide additional or corrected
information whenever information previously provided
by him to
his
the employer becomes insufficient or incorrect.
(3) If the employer complies with the requirements of division (E)(1) of this section and if the employee fails to comply with the requirements of division (E)(2) of this section, the employer is not required to withhold and pay the taxes imposed under Chapter 5748. of the Revised Code and is not subject to any penalties and interest otherwise applicable for failing to deduct and withhold such taxes.
Sec. 5747.08. An annual return with respect to the tax imposed by section 5747.02 of the Revised Code and each tax imposed under Chapter 5748. of the Revised Code shall be made by every taxpayer for any taxable year for which the taxpayer is liable for the tax imposed by that section or under that chapter, unless the total credits allowed under divisions (E), (F), and (G) of section 5747.05 of the Revised Code for the year are equal to or exceed the tax imposed by section 5747.02 of the Revised Code, in which case no return shall be required unless the taxpayer is liable for a tax imposed pursuant to Chapter 5748. of the Revised Code.
(A) If an individual is deceased, any return or notice required of that individual under this chapter shall be made and filed by that decedent's executor, administrator, or other person charged with the property of that decedent.
(B) If an individual is unable to make a return or notice required by this chapter, the return or notice required of that individual shall be made and filed by the individual's duly authorized agent, guardian, conservator, fiduciary, or other person charged with the care of the person or property of that individual.
(C) Returns or notices required of an estate or a trust shall be made and filed by the fiduciary of the estate or trust.
(D)(1)(a) Except as otherwise provided in division (D)(1)(b) of this section, any pass-through entity may file a single return on behalf of one or more of the entity's investors other than an investor that is a person subject to the tax imposed under section 5733.06 of the Revised Code. The single return shall set forth the name, address, and social security number or other identifying number of each of those pass-through entity investors and shall indicate the distributive share of each of those pass-through entity investor's income taxable in this state in accordance with sections 5747.20 to 5747.231 of the Revised Code. Such pass-through entity investors for whom the pass-through entity elects to file a single return are not entitled to the exemption or credit provided for by sections 5747.02 and 5747.022 of the Revised Code; shall calculate the tax before business credits at the highest rate of tax set forth in section 5747.02 of the Revised Code for the taxable year for which the return is filed; and are entitled to only their distributive share of the business credits as defined in division (D)(2) of this section. A single check drawn by the pass-through entity shall accompany the return in full payment of the tax due, as shown on the single return, for such investors, other than investors who are persons subject to the tax imposed under section 5733.06 of the Revised Code.
(b)(i) A pass-through entity shall not include in such a single return any investor that is a trust to the extent that any direct or indirect current, future, or contingent beneficiary of the trust is a person subject to the tax imposed under section 5733.06 of the Revised Code.
(ii) A pass-through entity shall not include in such a single return any investor that is itself a pass-through entity to the extent that any direct or indirect investor in the second pass-through entity is a person subject to the tax imposed under section 5733.06 of the Revised Code.
(c) Nothing in division (D) of this section precludes the tax commissioner from requiring such investors to file the return and make the payment of taxes and related interest, penalty, and interest penalty required by this section or section 5747.02, 5747.09, or 5747.15 of the Revised Code. Nothing in division (D) of this section shall be construed to provide to such an investor or pass-through entity any additional deduction or credit, other than the credit provided by division (J) of this section, solely on account of the entity's filing a return in accordance with this section. Such a pass-through entity also shall make the filing and payment of estimated taxes on behalf of the pass-through entity investors other than an investor that is a person subject to the tax imposed under section 5733.06 of the Revised Code.
(2) For the purposes of this section, "business credits" means the credits listed in section 5747.98 of the Revised Code excluding the following credits:
(a) The retirement credit under division (B) of section 5747.055 of the Revised Code;
(b) The senior citizen credit under division (C) of section 5747.05 of the Revised Code;
(c) The lump sum distribution credit under division (D) of section 5747.05 of the Revised Code;
(d) The dependent care credit under section 5747.054 of the Revised Code;
(e) The lump sum retirement income credit under division (C) of section 5747.055 of the Revised Code;
(f) The lump sum retirement income credit under division (D) of section 5747.055 of the Revised Code;
(g) The lump sum retirement income credit under division (E) of section 5747.055 of the Revised Code;
(h) The credit for displaced workers who pay for job training under section 5747.27 of the Revised Code;
(i) The twenty-dollar personal exemption credit under section 5747.022 of the Revised Code;
(j) The joint filing credit under division (G) of section 5747.05 of the Revised Code;
(k) The nonresident credit under division (A) of section 5747.05 of the Revised Code;
(l) The credit for a resident's out-of-state income under division (B) of section 5747.05 of the Revised Code.
(3) The election provided for under division (D) of this section applies only to the taxable year for which the election is made by the pass-through entity. Unless the tax commissioner provides otherwise, this election, once made, is binding and irrevocable for the taxable year for which the election is made. Nothing in this division shall be construed to provide for any deduction or credit that would not be allowable if a nonresident pass-through entity investor were to file an annual return.
(4) If a pass-through entity makes the election provided
for
under division (D) of this
section, the pass-through entity shall
be liable for any
additional taxes, interest, interest penalty, or
penalties imposed by this
chapter
if the
tax commissioner
determines
finds that the single return does
not reflect the
correct tax
due by
nonresident
the pass-through
entity investors
covered by that
return. Nothing in this
division shall be
construed to limit or
alter the liability, if
any, imposed on
pass-through entity
investors for unpaid or
underpaid taxes,
interest, interest
penalty, or penalties as a result of the
pass-through entity's
making the election provided for under
division (D) of this
section.
For the purposes of division
(D) of
this section,
"correct tax due" means the tax that would have been
paid by the
pass-through entity had the single return been filed
in a manner
reflecting
and including the
commissioner's findings
and
determinations made by
the tax commissioner. Nothing
in
division (D) of this section
shall be construed to make or hold
a
pass-through entity liable
for tax attributable to a
pass-through
entity investor's
income
from a source other than the
pass-through
entity electing
to file
the single return.
(E) If a husband and wife file a joint federal income tax return for a taxable year, they shall file a joint return under this section for that taxable year, and their liabilities are joint and several, but, if the federal income tax liability of either spouse is determined on a separate federal income tax return, they shall file separate returns under this section.
If either spouse is not required to file a federal income tax return and either or both are required to file a return pursuant to this chapter, they may elect to file separate or joint returns, and, pursuant to that election, their liabilities are separate or joint and several. If a husband and wife file separate returns pursuant to this chapter, each must claim the taxpayer's own exemption, but not both, as authorized under section 5747.02 of the Revised Code on the taxpayer's own return.
(F) Each return or notice required to be filed under this section shall contain the signature of the taxpayer or the taxpayer's duly authorized agent and of the person who prepared the return for the taxpayer, and shall include the taxpayer's social security number. Each return shall be verified by a declaration under the penalties of perjury. The tax commissioner shall prescribe the form that the signature and declaration shall take.
(G) Each return or notice required to be filed under this section shall be made and filed as required by section 5747.04 of the Revised Code, on or before the fifteenth day of April of each year, on forms that the tax commissioner shall prescribe, together with remittance made payable to the treasurer of state in the combined amount of the state and all school district income taxes shown to be due on the form, unless the combined amount shown to be due is one dollar or less, in which case that amount need not be remitted.
Upon good cause shown, the commissioner may extend the period for filing any notice or return required to be filed under this section and may adopt rules relating to extensions. If the extension results in an extension of time for the payment of any state or school district income tax liability with respect to which the return is filed, the taxpayer shall pay at the time the tax liability is paid an amount of interest computed at the rate per annum prescribed by section 5703.47 of the Revised Code on that liability from the time that payment is due without extension to the time of actual payment. Except as provided in section 5747.132 of the Revised Code, in addition to all other interest charges and penalties, all taxes imposed under this chapter or Chapter 5748. of the Revised Code and remaining unpaid after they become due, except combined amounts due of one dollar or less, bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code until paid or until the day an assessment is issued under section 5747.13 of the Revised Code, whichever occurs first.
If the commissioner considers it necessary in order to ensure the payment of the tax imposed by section 5747.02 of the Revised Code or any tax imposed under Chapter 5748. of the Revised Code, the commissioner may require returns and payments to be made otherwise than as provided in this section.
(H) If any report, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under this chapter is delivered after that period or that date by United States mail to the agency, officer, or office with which the report, claim, statement, or other document is required to be filed, or to which the payment is required to be made, the date of the postmark stamped on the cover in which the report, claim, statement, or other document, or payment is mailed shall be deemed to be the date of delivery or the date of payment.
If a payment is required to be made by electronic funds transfer pursuant to section 5747.072 of the Revised Code, the payment is considered to be made when the payment is received by the treasurer of state or credited to an account designated by the treasurer of state for the receipt of tax payments.
"The date of the postmark" means, in the event there is more than one date on the cover, the earliest date imprinted on the cover by the United States postal service.
(I) The amounts withheld by the employer pursuant to section 5747.06 of the Revised Code shall be allowed to the recipient of the compensation as credits against payment of the appropriate taxes imposed on the recipient by section 5747.02 and under Chapter 5748. of the Revised Code.
(J) If, in accordance with division (D) of this section, a pass-through entity elects to file a single return and if any investor is required to file the return and make the payment of taxes required by this chapter on account of the investor's other income that is not included in a single return filed by a pass-through entity, the investor is entitled to a refundable credit equal to the investor's proportionate share of the tax paid by the pass-through entity on behalf of the investor. The investor shall claim the credit for the investor's taxable year in which or with which ends the taxable year of the pass-through entity. Nothing in this chapter shall be construed to allow any credit provided in this chapter to be claimed more than once. For the purposes of computing any interest, penalty, or interest penalty, the investor shall be deemed to have paid the refundable credit provided by this division on the day that the pass-through entity paid the estimated tax or the tax giving rise to the credit.
Sec. 5747.13. (A) If any employer collects the tax
imposed
by section 5747.02 or under Chapter 5748. of the Revised
Code and
fails to remit the tax as required by law, or fails to
collect the
tax, the employer is personally liable for any
amount collected
which
that the employer fails to remit, or any
amount
which
that
the
employer fails to collect. If any taxpayer
fails to file a
return
or fails to pay the tax
imposed by section 5747.02 or under
Chapter 5748. of the Revised
Code, the taxpayer is personally
liable for the amount of the tax.
If any employer, taxpayer, or qualifying entity required to file a return under this chapter fails to file the return within the time prescribed, files an incorrect return, fails to remit the full amount of the taxes due for the period covered by the return, or fails to remit any additional tax due as a result of a reduction in the amount of the credit allowed under division (B) of section 5747.05 of the Revised Code together with interest on the additional tax within the time prescribed by that division, the tax commissioner may make an assessment against any person liable for any deficiency for the period for which the return is or taxes are due, based upon any information in the commissioner's possession.
An assessment issued against either the employer or the taxpayer pursuant to this section shall not be considered an election of remedies or a bar to an assessment against the other for failure to report or pay the same tax. No assessment shall be issued against any person if the tax actually has been paid by another.
No assessment shall be made or issued against an employer, taxpayer, or qualifying entity more than four years after the final date the return subject to assessment was required to be filed or the date the return was filed, whichever is later. However, the commissioner may assess any balance due as the result of a reduction in the credit allowed under division (B) of section 5747.05 of the Revised Code, including applicable penalty and interest, within four years of the date on which the taxpayer reports a change in either the portion of the taxpayer's adjusted gross income subjected to an income tax or tax measured by income in another state or the District of Columbia, or the amount of liability for an income tax or tax measured by income to another state or the District of Columbia, as required by division (B)(3) of section 5747.05 of the Revised Code. Such time limits may be extended if both the employer, taxpayer, or qualifying entity and the commissioner consent in writing to the extension or if an agreement waiving or extending the time limits has been entered into pursuant to section 122.171 of the Revised Code. Any such extension shall extend the four-year time limit in division (B) of section 5747.11 of the Revised Code for the same period of time. There shall be no bar or limit to an assessment against an employer for taxes withheld from employees and not remitted to the state, against an employer, taxpayer, or qualifying entity that fails to file a return subject to assessment as required by this chapter, or against an employer, taxpayer, or qualifying entity that files a fraudulent return.
The commissioner shall give the party assessed written
notice
of the assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom the notice of assessment is
directed
assessed files with the
tax commissioner within sixty
days
after
service of the notice of assessment, either personally
or by
certified mail, a
written petition for reassessment
in
writing, signed by
the party assessed, or
by the
that party's
authorized agent having
knowledge
of the facts
and makes payment
of the portion of the
assessment
required by division (E) of this
section, the
assessment
shall
become
becomes final, and the amount
of the assessment
shall
be
is due and payable from the party
assessed to the
commissioner with
remittance made payable to the
treasurer of
state. The petition
shall indicate the objections of
the party
assessed, but
additional objections may be raised in
writing if
received
by the commissioner prior
to the date shown on
the final determination
by the
commissioner.
Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make such correction to an assessment
as
the commissioner finds proper. The commissioner shall
serve a
copy of a final determination on the petitioner by
personal
service or certified mail, and the commissioner's decision in the
matter shall be final, subject to appeal as provided in section
5717.02 of the
Revised Code. Only objections decided on the
merits by the board of tax
appeals or a court shall be given
collateral estoppel or res
judicata effect in considering an
application for refund of
amounts paid pursuant to the assessment.
If the petition has been properly filed, the commissioner shall
proceed under section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the employer's, taxpayer's, or qualifying entity's place of business is located or the county in which the party assessed resides. If the party assessed is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
Immediately upon the filing of the entry, the clerk shall enter a judgment against the party assessed in the amount shown on the entry. The judgment shall be filed by the clerk in one of two loose-leaf books, one entitled "special judgments for state and school district income taxes," and the other entitled "special judgments for qualifying entity taxes." The judgment shall have the same effect as other judgments. Execution shall issue upon the judgment upon the request of the tax commissioner, and all laws applicable to sales on execution shall apply to sales made under the judgment.
The portion of the assessment not paid within sixty days after the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until it is paid. Interest shall be paid in the same manner as the tax and may be collected by the issuance of an assessment under this section.
(D) All money collected under this section shall be considered as revenue arising from the taxes imposed by this chapter or Chapter 5733. or 5748. of the Revised Code, as appropriate.
(E) The portion of an assessment
which
that must be paid
upon
the
filing of a petition for reassessment shall be as
follows:
(1) If the sole item objected to is the assessed penalty or interest, payment of the assessment, including interest but not penalty, is required;
(2) If the taxpayer or qualifying entity that is assessed failed to file, prior to the date of issuance of the assessment, the annual return or report required by section 5747.08 or 5747.42 of the Revised Code, any amended return or amended report required by section 5747.10 or 5747.45 of the Revised Code for the taxable year at issue, or any report required by division (B) of section 5747.05 of the Revised Code to indicate a reduction in the amount of the credit provided under that division, payment of the assessment, including interest but not penalty, is required, except as otherwise provided under division (E)(6) or (7) of this section;
(3) If the employer assessed had not filed, prior to the date of issuance of the assessment, the annual return required by division (E)(2) of section 5747.07 of the Revised Code covering the period at issue, payment of the assessment, including interest but not penalty, is required;
(4) If the taxpayer or qualifying entity that is assessed filed, prior to the date of issuance of the assessment, the annual return or report required by section 5747.08 or 5747.42 of the Revised Code, all amended returns or reports required by section 5747.10 or 5747.45 of the Revised Code for the taxable year at issue, and all reports required by division (B) of section 5747.05 of the Revised Code to indicate a reduction in the amount of the credit provided under that division, and a balance of the taxes shown due on the returns or reports as computed on the returns or reports remains unpaid, payment of only that portion of the assessment representing the unpaid balance of tax and interest is required;
(5) If the employer assessed filed, prior to the date of issuance of the assessment, the annual return required by division (E)(2) of section 5747.07 of the Revised Code covering the period at issue, and a balance of the taxes shown due on the return as computed on the return remains unpaid, payment of only that portion of the assessment representing the unpaid balance of tax and interest is required;
(6) In the case of a party assessed as a qualifying entity subject to the tax levied under section 5733.41 or 5747.41 of the Revised Code, if the party does not dispute that it is a qualifying entity subject to that tax but claims the protections of section 101 of Public Law 86-272, 73 Stat. 555, 15 U.S.C.A. 381, as amended, no payment is required;
(7) In the case of a party assessed as a qualifying entity subject to the tax levied under section 5733.41 or 5747.41 of the Revised Code, if the party does dispute that it is a qualifying entity subject to that tax, no payment is required;
(8) If none of the conditions specified in divisions (E)(1) to (7) of this section apply, no payment is required.
(F) Notwithstanding the fact that a petition for reassessment is pending, the petitioner may pay all or a portion of the assessment that is the subject of the petition. The acceptance of a payment by the treasurer of state does not prejudice any claim for refund upon final determination of the petition.
If upon final determination of the petition an error in the assessment is corrected by the tax commissioner, upon petition so filed or pursuant to a decision of the board of tax appeals or any court to which the determination or decision has been appealed, so that the amount due from the party assessed under the corrected assessment is less than the portion paid, there shall be issued to the petitioner or to the petitioner's assigns or legal representative a refund in the amount of the overpayment as provided by section 5747.11 of the Revised Code, with interest on that amount as provided by such section, subject to section 5747.12 of the Revised Code.
Sec. 5749.07. (A) If any severer required by this chapter to make and file returns and pay the tax levied by section 5749.02 of the Revised Code, fails to make such return or pay such tax, the tax commissioner may make an assessment against the severer based upon any information in the commissioner's possession.
No assessment shall be made or issued against any severer for any tax imposed by section 5749.02 of the Revised Code more than four years after the return was due or was filed, whichever is later. This section does not bar an assessment against a severer who fails to file a return as required by this chapter, or who files a fraudulent return.
The commissioner shall give the party assessed written
notice
of such assessment
as
in the manner
provided in section 5703.37 of
the Revised
Code.
With the notice, the commissioner shall provide
instructions on how to petition for reassessment and request a
hearing on the petition.
(B) Unless the party
to whom such notice of assessment is
directed
assessed files with the commissioner within sixty days
after
service of the notice
of assessment, either personally or by
certified mail, a
written petition for reassessment
in writing,
signed by
the party
assessed, or
by an
that party's authorized
agent
of the
party
assessed having knowledge of the facts, the
assessment
shall
become
becomes
final and the
amount of the
assessment
shall be
is
due and
payable from the party
assessed to
the treasurer of state.
The
petition shall indicate
the objections
of the party assessed,
but
additional objections
may be raised in
writing if received
by
the commissioner prior
to the date shown on
the final
determination
by the commissioner.
Unless the petitioner waives a hearing, the
commissioner
shall assign a time and place for the hearing
on the
petition and
notify the petitioner of
the time and place
of
the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary.
The commissioner may make
such correction to
the assessment
as the commissioner finds proper. The
commissioner shall
serve a
copy of the final
determination on
the petitioner
by personal
service
or by certified mail, and the
commissioner's decision in
the
matter
shall be final, subject
to appeal
as provided in
section 5717.02 of the
Revised
Code. Only objections decided on
the merits by the board of tax
appeals or a court shall be given
collateral estoppel or res
judicata effect in considering an
application for refund of
amounts paid pursuant to the assessment.
If the petition has been properly filed, the commissioner shall
proceed under section 5703.60 of the Revised Code.
(C) After an assessment becomes final, if any portion of the assessment remains unpaid, including accrued interest, a certified copy of the tax commissioner's entry making the assessment final may be filed in the office of the clerk of the court of common pleas in the county in which the party assessed resides or in which the party's business is conducted. If the party assessed maintains no place of business in this state and is not a resident of this state, the certified copy of the entry may be filed in the office of the clerk of the court of common pleas of Franklin county.
The clerk, immediately
Immediately upon the filing of such
entry,
the clerk shall
enter a judgment for the state against the
party assessed in the
amount shown on the entry. The judgment may
be filed by the
clerk
in a loose-leaf book entitled
"special
judgments for state
severance tax," and shall have the same effect
as
other judgments.
Execution shall issue upon the judgment upon
the request of the
tax commissioner, and all laws applicable to
sales on execution
shall apply to sales made under the judgment.
The portion of the assessment not paid within
sixty days
after the day the assessment is issued shall
bear
interest at the
rate per annum prescribed by section 5703.47 of the
Revised Code
from the day the
tax commissioner issues the assessment until
it
is paid. Interest shall be paid in the same manner as the tax and
may be
collected by the issuance of an assessment under this
section.
(D) All money collected by the tax commissioner under this section shall be paid to the treasurer of state, and when paid shall be considered as revenue arising from the tax imposed by section 5749.02 of the Revised Code.
Sec. 5749.08. The tax commissioner shall refund to taxpayers
the amount of
taxes paid illegally or erroneously or paid on an
illegal or erroneous
assessment. Applications for refund shall be
filed with the tax commissioner,
on the form prescribed by the
commissioner, within four
years from the date of the illegal
or
erroneous payment of the tax. On the filing of
such
the
application,
the
commissioner shall determine the amount of refund
due
to which the applicant is entitled, plus
interest
computed in
accordance
with section 5703.47 of the
Revised
Code from the date
of the
payment of an erroneous or
illegal
assessment until the
date the
refund is paid
and. If the amount is not less than that
claimed,
the commissioner shall certify
such
the amount
to the
director of
budget and management and treasurer
of state payment
from
the tax
refund
fund created by section 5703.052
of the
Revised Code.
If the amount is less than that claimed, the
commissioner shall proceed in accordance with section 5703.70 of
the Revised Code.
SECTION 2. That existing sections 323.152, 2935.01, 3317.026, 3734.905, 3734.907, 3769.088, 3924.66, 4305.131, 4307.05, 4307.07, 4503.065, 5117.071, 5703.05, 5703.21, 5703.37, 5703.51, 5711.31, 5715.49, 5715.50, 5717.02, 5727.26, 5727.28, 5727.39, 5727.47, 5727.471, 5727.89, 5727.91, 5727.93, 5728.01, 5728.02, 5728.03, 5728.04, 5728.06, 5728.061, 5728.07, 5728.08, 5728.09, 5728.10, 5728.11, 5728.13, 5733.021, 5733.04, 5733.05, 5733.11, 5733.12, 5733.28, 5735.06, 5735.11, 5735.12, 5735.122, 5735.13, 5735.14, 5735.141, 5735.142, 5735.18, 5735.311, 5739.01, 5739.011, 5739.02, 5739.026, 5739.031, 5739.033, 5739.05, 5739.104, 5739.13, 5739.17, 5739.31, 5739.99, 5741.01, 5741.13, 5743.05, 5743.081, 5743.53, 5743.56, 5745.11, 5745.12, 5747.025, 5747.06, 5747.08, 5747.13, 5749.07, and 5749.08 and sections 5728.05, 5735.31, 5739.07, 5741.10, and 5747.181 of the Revised Code are hereby repealed.
SECTION 3. That the versions of sections 5733.021 and 5733.12 of the Revised Code that are scheduled to take effect July 1, 2002, be amended to read as follows:
Sec. 5733.021. (A) Each taxpayer
which
that does not in
the
month of January file the report and make the payment required by
section 5733.02 of the Revised Code shall make and file a
declaration of estimated tax report for the tax year.
The declaration of estimated tax report shall be filed with the tax commissioner on or before the last day of January in such form as prescribed by the tax commissioner, and shall reflect an estimate of the total amount due under this chapter for the tax year.
(B) A taxpayer required to file a declaration of estimated tax report shall make remittance of such estimated tax to the tax commissioner as follows:
(1) The entire estimated tax at the time of filing the declaration of estimated tax report, if such estimated tax is not in excess of the minimum tax as provided in section 5733.06 of the Revised Code;
(2) If the estimated tax is in excess of the minimum tax:
(a) One-third of the estimated tax at the time of filing the declaration of estimated tax report;
(b) Two-thirds of the estimated tax on or before the last
day of March of the tax year,
unless
if the report
and payment
required by section 5733.02 of the Revised Code
are
is filed
and
paid
on or before the last day of March of the tax year.
(3) If the estimated tax
due is in excess of the minimum
tax, and an extension of time for filing the report required by
section 5733.02 of the Revised Code has been granted pursuant to
section 5733.13 of the Revised Code:
(a) One-third of the estimated tax at the time of filing the declaration of estimated tax report;
(b) One-third of the estimated tax on or before the last day of March of the tax year;
(c) One-third of the estimated tax on or before the last
day
of May of the tax year, unless the report and payments
required by
section 5733.02 of the Revised Code are filed and
paid on or
before the last day of May of the tax year.
Remittance of the estimated tax shall be made payable to the treasurer of state and shall be made in the form prescribed by the tax commissioner, including electronic funds transfer if required by section 5733.022 of the Revised Code.
The tax commissioner shall immediately forward to the treasurer of state all amounts received under this section, and the treasurer of state shall credit all payments of such estimated tax as provided in section 5733.12 of the Revised Code.
(C)(1) For any period of delinquency ending prior to the first day of June of the tax year:
(a) The penalty under division (A)(2) of section 5733.28 of the Revised Code may only be imposed on the delinquent portion of the estimated tax required to be paid under divisions (B)(2)(a) and (b) and (B)(3)(a) and (b) of this section.
(b) The interest under section 5733.26 of the Revised Code shall only be imposed on the delinquent portion of estimated tax required to be paid under divisions (B)(2)(a), (B)(2)(b), (B)(3)(a), and (B)(3)(b) of this section.
(c) If the taxpayer was not subject to tax for the immediately preceding tax year, "estimated tax" for purposes of division (C)(1) of this section is ninety per cent of the qualifying tax for the current tax year. If the taxpayer was subject to the tax for the immediately preceding tax year, "estimated tax" for purposes of division (C)(1) of this section is the lesser of one hundred per cent of the qualifying net tax for the immediately preceding tax year or ninety per cent of the qualifying net tax for the current tax year.
(2) For any period of delinquency commencing the first day of June of the tax year and concluding on the extended due date pursuant to section 5733.13 of the Revised Code:
(a) The penalty under division (A)(2) of section 5733.28 of the Revised Code may only be imposed on the delinquent portion of the estimated tax required to be paid under division (B)(3)(c) of this section.
(b) The interest under section 5733.26 of the Revised Code shall be imposed on the delinquent portion of the amount in division (C)(3)(a) of this section for the current tax year.
(c) For purposes of division (C)(2) of this section, "estimated tax" is ninety per cent of the qualifying net tax for the current tax year.
(3) If the taxpayer did not file a report under section 5733.02 of the Revised Code for the tax year or failed to prepare and file the report in good faith for the tax year, "qualifying net tax" as used in division (C) of this section for that tax year means the amount described in division (C)(3)(a) of this division. Otherwise, "qualifying net tax" as used in division (C) of this section for that tax year means the lesser of the amount described in division (C)(3)(a) or (b) of this section:
(a) The tax imposed by sections 5733.06, 5733.065, and 5733.066 of the Revised Code for that tax year reduced by the credits listed in section 5733.98 of the Revised Code. If the credits exceed the total tax, the qualifying net tax is zero.
(b) The lesser of the tax shown on the report, reduced by the credits shown on that report, or the tax shown on an amended report prepared and filed in good faith, reduced by the credits shown on that amended report. If the credits shown exceed the total tax shown, the qualifying net tax is zero.
Sec. 5733.12. (A) Four and two-tenths per cent of all payments received from the taxes imposed under sections 5733.06 and 5733.41 of the Revised Code shall be credited to the local government fund for distribution in accordance with section 5747.50 of the Revised Code, six-tenths of one per cent shall be credited to the local government revenue assistance fund for distribution in accordance with section 5747.61 of the Revised Code, and ninety-five and two-tenths per cent shall be credited to the general revenue fund.
(B) Except as otherwise provided under divisions (C) and (D) of this section, an application to refund to the corporation the amount of taxes imposed under section 5733.06 of the Revised Code that are overpaid, paid illegally or erroneously, or paid on any illegal, erroneous, or excessive assessment, with interest thereon as provided by section 5733.26 of the Revised Code, shall be filed with the tax commissioner, on the form prescribed by the commissioner, within three years from the date of the illegal, erroneous, or excessive payment of the tax, or within any additional period allowed by division (C)(2) of section 5733.031, division (D)(2) of section 5733.067, or division (A) of section 5733.11 of the Revised Code. For purposes of division (B) of this section, any payment that the applicant made before the due date or extended due date for filing the report to which the payment relates shall be deemed to have been made on the due date or extended due date.
On the filing of the refund application, the commissioner
shall determine the amount of refund
due and
to which the
applicant is entitled. If the amount is not less than that
claimed the commissioner shall certify
such
the amount
to the
director of budget and management and treasurer of state
for
payment from the tax refund fund created by section 5703.052
of
the Revised Code. If the amount is less than that claimed, the
commissioner shall proceed in accordance with section 5703.70 of
the Revised Code.
(C) "Ninety days" shall be substituted for "three years" in division (B) of this section if the taxpayer satisfies both of the following:
(1) The taxpayer has applied for a refund based in whole or in part upon section 5733.0611 of the Revised Code;
(2) The taxpayer asserts that the imposition or collection of the tax imposed or charged by section 5733.06 of the Revised Code or any portion of such tax violates the Constitution of the United States or the Constitution of this state.
(D)(1) Division (D)(2) of this section applies only if all of the following conditions are satisfied:
(a) A qualifying pass-through entity pays an amount of the tax imposed by section 5733.41 of the Revised Code;
(b) The taxpayer is a qualifying investor as to that qualifying pass-through entity;
(c) The taxpayer did not claim the credit provided for in section 5733.0611 of the Revised Code as to the tax described in division (D)(1)(a) of this section;
(d) The three-year period described in division (B) of this section has ended as to the taxable year for which the taxpayer otherwise would have claimed that credit.
(2) A taxpayer shall file an application for refund pursuant to this division within one year after the date the payment described in division (D)(1)(a) of this section is made. An application filed under this division shall only claim refund of overpayments resulting from the taxpayer's failure to claim the credit described in division (D)(1)(c) of this section. Nothing in this division shall be construed to relieve a taxpayer from complying with the provisions of division (I)(14) of section 5733.04 of the Revised Code.
SECTION 4. That the existing versions of sections 5733.021 and 5733.12 of the Revised Code that are scheduled to take effect July 1, 2002, are hereby repealed.
SECTION 5. That the versions of sections 5727.26, 5728.08, and 5735.06 of the Revised Code that are scheduled to take effect January 1, 2003, be amended to read as follows:
Sec. 5727.26. (A) The tax commissioner may make an assessment, based on any information in the commissioner's possession, against any natural gas company or combined company that fails to file a return or pay any tax, interest, or additional charge as required by sections 5727.24 to 5727.29 of the Revised Code. The commissioner shall give the company assessed written notice of the assessment as provided in section 5703.37 of the Revised Code. With the notice, the commissioner shall provide instructions on how to petition for reassessment and request a hearing on the petition. A penalty of up to fifteen per cent may be added to all amounts assessed under this section. The tax commissioner may adopt rules providing for the imposition and remission of the penalty.
(B)
If a party to whom the notice of assessment is directed
objects to the assessment, the party may file a petition for
reassessment
Unless the company assessed, within sixty days after
service of the notice of assessment, files with
the tax
commissioner. The, either personally or by certified mail, a
written petition
must be made
in writing, signed by the
party or
the party's
company's authorized agent
having knowledge of the
facts,
and filed with the commissioner,
either personally or by
certified mail, within sixty days
after
service of the
notice of
assessment becomes final, and the amount of the assessment is due
and payable from the company assessed to the treasurer of state.
The petition shall indicate
the objections of the company
assessed, but additional objections
may be raised in writing if
received
by the commissioner
prior to the date shown on
the final
determination
of the commissioner.
Upon receipt of
If a
petition for reassessment has been
properly filed
petition, the commissioner
may notify the
treasurer of state.
Unless the petitioner waives a hearing, the commissioner
shall
grant the petitioner a hearing on the petition, assign a
time and
place
for the hearing, and notify the petitioner of the
time and
place of the
hearing as provided in
shall proceed under
section
5703.37
5703.60 of
the Revised Code.
The commissioner
may continue
the hearing from
time to time, if necessary.
If the party to whom the notice of assessment is directed
does not
file a petition for reassessment, the assessment is final
and the amount
of the assessment is due and payable from the
company assessed. The company assessed
shall make the payment
payable to the treasurer of state and shall
deliver the payment to
the tax commissioner.
(C) The tax commissioner may make any correction to the
assessment that the commissioner finds proper and shall issue a
final determination thereon. The commissioner shall serve a copy
of the final determination on the petitioner as provided in
section 5703.37
of the Revised Code, and
the commissioner's
decision in the
matter is final, subject to appeal under section
5717.02 of the
Revised Code. The commissioner
may
transmit
a
copy of the final determination to the treasurer of
state. Only
objections
decided on the merits by the board of tax
appeals or a
court shall be given
collateral estoppel or
res
judicata effect in
considering an application for refund of an
amount paid pursuant
to the assessment.
(D)(C) After an assessment becomes final, if any portion of
the
assessment, including accrued interest, remains unpaid, a
certified copy of
the tax commissioner's entry making the
assessment final
may be filed in the office of the clerk of the
court of common
pleas in the county in which the natural gas
company's or combined
company's principal place of business is
located,
or in the office of the clerk of court of common pleas of
Franklin
county.
The clerk, immediately
Immediately on the filing of the
entry,
must
the clerk shall enter
judgment for the state against
the company assessed in the amount
shown
on the entry. The
judgment may be filed by the clerk in a
loose-leaf
book entitled,
"special judgments for the public
utility excise
tax on natural
gas and combined companies," and
shall
have the same effect as
other judgments.
Execution shall
issue upon the judgment at the
request of the tax
commissioner,
and all laws applicable to sales
on execution shall
apply to sales
made under the judgment.
The portion of the assessment not paid within sixty days after the day the assessment was issued shall bear interest at the rate per annum prescribed by section 5703.47 of the Revised Code from the day the tax commissioner issues the assessment until it is paid. Interest shall be paid in the same manner as the tax and may be collected by the issuance of an assessment under this section.
(E)(D) If the tax commissioner believes that collection of
the
tax
will be jeopardized unless proceedings to collect or
secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the
person
company
liable for the tax.
On
Immediately upon the issuance of
the jeopardy assessment, the
commissioner
immediately shall file
an entry with the clerk of the
court of common pleas in the manner
prescribed by division
(D)(C) of
this section. Notice of the
jeopardy assessment shall be served
on the
party
company
assessed
or the
party's legal representative as
company's authorized agent
in the manner
provided in section 5703.37 of the Revised Code
within
five days
of the filing of the entry with the clerk. The
total
amount
assessed is immediately due and payable, unless the
person
company
assessed files a petition for reassessment in
accordance with
division (B) of this section and provides security
in a form
satisfactory to the commissioner and in an amount
sufficient to
satisfy the
unpaid balance of the
assessment. Full
or partial
payment of the assessment does not prejudice the
commissioner's
consideration of the petition for reassessment.
(F)(E)
The tax commissioner
shall
immediately forward to the
treasurer of state all amounts that the
tax commissioner receives
under
this
section, and
such amounts
shall be considered
revenue
arising from the tax imposed by
section 5727.24 of the
Revised
Code.
(G)(F) No assessment shall be made or issued against a
natural
gas
company or combined company for the tax imposed by
section
5727.24 of the Revised Code more than four years
after the
return
date for the period in which the tax was reported, or more
than
four years after the return for the period
was filed,
whichever is
later.
Sec. 5728.08. Except as provided in section 5728.03 of the
Revised Code and except as otherwise provided in this section,
whoever
is liable for the payment of the tax levied
by section
5728.06 of the Revised Code, on or before the last day
of each
January, April, July, and October, shall file with the
tax
commissioner, on forms prescribed by the
tax
commissioner,
a
highway
fuel
use tax return and make payment of the
full amount of
the
tax due
for the operation of each commercial
car and
commercial
tractor
for the
next preceding three calendar
months.
If
the
commercial
cars or commercial tractors are farm
trucks and
the
amount
of
motor fuel used to operate the trucks
during the
next
preceding
twelve
calendar months was less than
fifteen
thousand
gallons, the
highway
fuel use tax return shall be
filed
and the full
amount of tax
due paid on
or before the last
day of
each
July for
the
next
preceding twelve calendar months.
If
the
commercial cars
or
commercial tractors are farm trucks and
the
amount of motor
fuel
used to operate the trucks during the
next
preceding twelve
calendar
months was fifteen thousand gallons
or
more, the
highway
fuel
use tax return shall
be filed and the full
amount of the tax due
paid either on or before the last
day of
each July for the
next
preceding twelve calendar months, or
on or
before the last day of
each January, April,
July, and October for
the
next preceding
three calendar
months, at the option of the
person liable for
payment of the tax. If the
commercial cars or
commercial tractors
are not farm trucks, and if, in the
estimation
of the
tax
commissioner, the amount of the tax due does not
warrant
quarterly
filing, the commissioner may authorize the
filing of the
highway
fuel
use
tax return and payment of the full
amount due on or before the
last day of
each July for the
next
preceding twelve months.
The
tax
commissioner
shall immediately forward to the
treasurer of
state all money received from the tax levied by
section 5728.06 of
the Revised Code.
The treasurer of state shall place to the credit of the tax
refund fund created by section 5703.052 of the Revised Code, out
of receipts from the taxes levied by section 5728.06 of the
Revised Code, amounts equal to the refund certified by the tax
commissioner pursuant to section 5728.061 of the Revised Code.
Receipts from the tax shall be used by the
tax commissioner to
defray expenses incurred by the department of taxation in
administering sections 5728.01 to 5728.14 of the Revised Code.
All moneys received in the state treasury from taxes levied
by section 5728.06 of the Revised Code and fees assessed under
sections 5728.02 and
section 5728.03 of the Revised Code
which
that are not
required to be placed to the credit of the tax refund
fund as
provided by this section shall, during each calendar year,
be
credited to the highway improvement bond retirement fund
created
by section 5528.12 of the Revised Code until the
commissioners of
the sinking fund certify to the treasurer of
state, as required
by
section 5528.17 of the Revised Code, that
there are sufficient
moneys to the credit of the highway
improvement bond retirement
fund to meet in full all payments of
interest, principal, and
charges for the retirement of bonds and
other obligations issued
pursuant to Section 2g of Article VIII,
Ohio Constitution, and
sections 5528.10 and 5528.11 of the Revised
Code due and payable
during the current calendar year and during
the
next succeeding
following
calendar year. From the date of the
receipt of the certification
required by section 5528.17 of the
Revised Code by the treasurer
of state until the thirty-first day
of December of the calendar
year in which the certification is
made, all moneys received in
the state treasury from taxes levied
under section 5728.06 of the
Revised Code and fees assessed under
sections 5728.02 and
section 5728.03
of the Revised Code
which
that are not required to be placed to the
credit of the tax refund
fund as provided by this section shall
be
credited to the highway
obligations bond retirement fund
created
by section 5528.32 of the
Revised Code until the
commissioners of
the sinking fund certify
to the treasurer of
state, as required by
section 5528.38 of the
Revised Code, that
there are sufficient
moneys to the credit of
the highway
obligations bond retirement
fund to meet in full all
payments of
interest, principal, and
charges for the retirement of
bonds and
other obligations issued
pursuant to Section 2i of
Article VIII,
Ohio Constitution, and
sections 5528.30 and 5528.31
of the
Revised Code due and payable
during the current calendar
year and
during the
next succeeding
following
calendar year. From
the date of the
receipt of the certification
required by section
5528.38 of the
Revised Code by the treasurer
of state until the
thirty-first day
of December of the calendar
year in which the
certification is
made, all moneys received in
the state treasury
from taxes levied
under section 5728.06 of the
Revised Code and
fees assessed under
sections 5728.02 and
section 5728.03
of the
Revised Code
which
that are not
required to be placed to the
credit of the tax refund fund as
provided by this section shall be
credited to the highway
operating fund created by section 5735.291
of the Revised Code,
except as provided by the
next succeeding
following
paragraph of this
section.
From the date of the receipt by the treasurer of state of
certifications from the commissioners of the sinking fund, as
required by sections 5528.18 and 5528.39 of the Revised Code,
certifying that the moneys to the credit of the highway
improvement bond retirement fund are sufficient to meet in full
all payments of interest, principal, and charges for the
retirement of all bonds and other obligations
which
that may be
issued
pursuant to Section 2g of Article VIII, Ohio Constitution,
and
sections 5528.10 and 5528.11 of the Revised Code, and to the
credit of the highway obligations bond retirement fund are
sufficient to meet in full all payments of interest, principal,
and charges for the retirement of all obligations issued pursuant
to Section 2i of Article VIII, Ohio Constitution, and sections
5528.30 and 5528.31 of the Revised Code, all moneys received in
the state treasury from the taxes levied under section 5728.06
and
fees assessed under
sections 5728.02 and
section 5728.03 of the
Revised
Code, which
that are not required to be placed to the
credit
of the tax
refund fund as provided by this section, shall
be
deposited to the
credit of the highway operating fund.
As used in this section, "farm truck" means any commercial car or commercial tractor that is registered as a farm truck under Chapter 4503. of the Revised Code.
Sec. 5735.06. (A) On or before the last day of each month, each motor fuel dealer shall file with the tax commissioner a report for the preceding calendar month, on forms prescribed by or in a form acceptable to the tax commissioner. The report shall include the following information:
(1) An itemized statement of the number of gallons of all motor fuel received during the preceding calendar month by such motor fuel dealer, which has been produced, refined, prepared, distilled, manufactured, blended, or compounded by such motor fuel dealer in the state;
(2) An itemized statement of the number of gallons of all motor fuel received by such motor fuel dealer in the state from any source during the preceding calendar month, other than motor fuel included in division (A)(1) of this section, together with a statement showing the date of receipt of such motor fuel; the name of the person from whom purchased or received; the date of receipt of each shipment of motor fuel; the point of origin and the point of destination of each shipment; the quantity of each of said purchases or shipments; the name of the carrier; the number of gallons contained in each car if shipped by rail; the point of origin, destination, and shipper if shipped by pipe line; or the name and owner of the boat, barge, or vessel if shipped by water;
(3) An itemized statement of the number of gallons of motor fuel which such motor fuel dealer has during the preceding calendar month:
(a) For motor fuel other than gasoline sold for use other than for operating motor vehicles on the public highways or on waters within the boundaries of this state;
(b) Exported from this state
to any
other state or foreign
country as provided in division
(A)(3)(4) of section 5735.05 of
the
Revised Code;
(c) Sold to the United States government or any of its agencies;
(d) Sold for delivery to motor fuel dealers;
(e) Sold exclusively for use in the operation of aircraft;
(4) Such other information incidental to the enforcement of the motor fuel laws of the state as the commissioner requires.
(B) The report shall show the tax due, computed as follows:
(1) The following deductions shall be made from the total number of gallons of motor fuel received by the motor fuel dealer within the state during the preceding calendar month:
(a) The total number of gallons of motor fuel received by the motor fuel dealer within the state and sold or otherwise disposed of during the preceding calendar month as set forth in section 5735.05 of the Revised Code;
(b) The total number of gallons received during the preceding calendar month and sold or otherwise disposed of to another licensed motor fuel dealer pursuant to section 5735.05 of the Revised Code;
(c) To cover the costs of the motor fuel dealer in compiling the report, and evaporation, shrinkage, or other unaccounted-for losses:
(i) If the report is timely filed and the tax is timely paid, three per cent of the total number of gallons of motor fuel received by the motor fuel dealer within the state during the preceding calendar month less the total number of gallons deducted under divisions (B)(1)(a) and (b) of this section, less one per cent of the total number of gallons of motor fuel that were sold to a retail dealer during the preceding calendar month;
(ii) If the report required by division (A) of this section is not timely filed and the tax is not timely paid, no deduction shall be allowed;
(iii) If the report is incomplete, no deduction shall be allowed for any fuel on which the tax is not timely reported and paid;
(2) The number of gallons remaining after the deductions have been made shall be multiplied separately by each of the following amounts:
(a) The cents per gallon rate;
(b) Two cents.
The sum of the products obtained in divisions (B)(2)(a) and (b) of this section shall be the amount of motor fuel tax for the preceding calendar month.
(C) The report shall be filed together with payment of the tax shown on the report to be due, unless the motor fuel dealer is required by section 5735.062 of the Revised Code to pay the tax by electronic funds transfer, in which case the dealer shall file the report pursuant to this section and pay the tax pursuant to section 5735.062 of the Revised Code. The commissioner may extend the time for filing reports and may remit all or part of penalties which may become due under sections 5735.01 to 5735.99 of the Revised Code. For purposes of this section and sections 5735.062 and 5735.12 of the Revised Code, a report required to be filed under this section is considered filed when it is received by the tax commissioner, and remittance of the tax due is considered to be made when the remittance is received by the tax commissioner or when credited to an account designated by the treasurer of state and the tax commissioner for the receipt of tax remittances. The tax commissioner shall immediately forward to the treasurer of state all amounts received under this section.
(D) The tax commissioner may require a motor fuel dealer to file a report for a period other than one month. Such a report, together with payment of the tax, shall be filed not later than thirty days after the last day of the prescribed reporting period.
(E) No person required by this section to file a tax report shall file a false or fraudulent tax report or supporting schedule.
SECTION 6. That existing sections 5727.26, 5728.08, and 5735.06 of the Revised Code that are scheduled to take effect January 1, 2003, are hereby repealed.
SECTION 7. Section 5727.26 of the Revised Code is presented in Section 1 of this act as a composite of the section as amended by both H.B. 612 and Am. Sub. H.B. 640 of the 123rd General Assembly. Section 5727.47 of the Revised Code is presented in this act as a composite of the section as amended by both Sub. H.B. 589 and H.B. 612 of the 123rd General Assembly. Section 5733.05 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 283 and Am. Sub. S.B. 3 of the 123rd General Assembly. Section 5739.02 of the Revised Code is presented in this act as a composite of the section as amended by Am. Sub. H.B. 138, H.B. 612, and Am. Sub. H.B. 640 all of the 123rd General Assembly. Section 5739.031 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 740 and Sub. H.B. 791 of the 119th General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.