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To amend sections 718.01 and 718.02 of the Revised | 1 |
Code to authorize municipalities to allow | 2 |
self-employed taxpayers to take a municipal income | 3 |
tax deduction for amounts paid for medical care | 4 |
insurance and to authorize municipalities to allow | 5 |
individuals to deduct amounts paid into health | 6 |
savings accounts. | 7 |
Section 1. That sections 718.01 and 718.02 of the Revised | 8 |
Code be amended to read as follows: | 9 |
Sec. 718.01. (A) As used in this chapter: | 10 |
(1) "Adjusted federal taxable income" means a C corporation's | 11 |
federal taxable income before net operating losses and special | 12 |
deductions as determined under the Internal Revenue Code, adjusted | 13 |
as follows: | 14 |
(a) Deduct intangible income to the extent included in | 15 |
federal taxable income. The deduction shall be allowed regardless | 16 |
of whether the intangible income relates to assets used in a trade | 17 |
or business or assets held for the production of income. | 18 |
(b) Add an amount equal to five per cent of intangible income | 19 |
deducted under division (A)(1)(a) of this section, but excluding | 20 |
that portion of intangible income directly related to the sale, | 21 |
exchange, or other disposition of property described in section | 22 |
1221 of the Internal Revenue Code; | 23 |
(c) Add any losses allowed as a deduction in the computation | 24 |
of federal taxable income if the losses directly relate to the | 25 |
sale, exchange, or other disposition of an asset described in | 26 |
section 1221 or 1231 of the Internal Revenue Code; | 27 |
(d)(i) Except as provided in division (A)(1)(d)(ii) of this | 28 |
section, deduct income and gain included in federal taxable income | 29 |
to the extent the income and gain directly relate to the sale, | 30 |
exchange, or other disposition of an asset described in section | 31 |
1221 or 1231 of the Internal Revenue Code; | 32 |
(ii) Division (A)(1)(d)(i) of this section does not apply to | 33 |
the extent the income or gain is income or gain described in | 34 |
section 1245 or 1250 of the Internal Revenue Code. | 35 |
(e) Add taxes on or measured by net income allowed as a | 36 |
deduction in the computation of federal taxable income; | 37 |
(f) In the case of a real estate investment trust and | 38 |
regulated investment company, add all amounts with respect to | 39 |
dividends to, distributions to, or amounts set aside for or | 40 |
credited to the benefit of investors and allowed as a deduction in | 41 |
the computation of federal taxable income; | 42 |
(g) If the taxpayer is not a C corporation and is not an | 43 |
individual, the taxpayer shall compute adjusted federal taxable | 44 |
income as if the taxpayer were a C corporation, except: | 45 |
(i) Guaranteed payments and other similar amounts paid or | 46 |
accrued to a partner, former partner, member, or former member | 47 |
shall not be allowed as a deductible expense; and | 48 |
(ii) Amounts paid or accrued to a qualified self-employed | 49 |
retirement plan with respect to an owner or owner-employee of the | 50 |
taxpayer, amounts paid or accrued to or for health insurance for | 51 |
an owner or owner-employee, and amounts paid or accrued to or for | 52 |
life insurance for an owner or owner-employee shall not be allowed | 53 |
as a deduction. | 54 |
Nothing in division (A)(1) of this section shall be construed | 55 |
as allowing the taxpayer to add or deduct any amount more than | 56 |
once or shall be construed as allowing any taxpayer to deduct any | 57 |
amount paid to or accrued for purposes of federal self-employment | 58 |
tax. | 59 |
Nothing in this chapter shall be construed as limiting or | 60 |
removing the ability of any municipal corporation to administer, | 61 |
audit, and enforce the provisions of its municipal income tax. | 62 |
(2) "Internal Revenue Code" means the Internal Revenue Code | 63 |
of 1986, 100 Stat. 2085, 26 U.S.C. 1, as amended. | 64 |
(3) "Schedule C" means internal revenue service schedule C | 65 |
filed by a taxpayer pursuant to the Internal Revenue Code. | 66 |
(4) "Form 2106" means internal revenue service form 2106 | 67 |
filed by a taxpayer pursuant to the Internal Revenue Code. | 68 |
(5) "Intangible income" means income of any of the following | 69 |
types: income yield, interest, capital gains, dividends, or other | 70 |
income arising from the ownership, sale, exchange, or other | 71 |
disposition of intangible property including, but not limited to, | 72 |
investments, deposits, money, or credits as those terms are | 73 |
defined in Chapter 5701. of the Revised Code, and patents, | 74 |
copyrights, trademarks, tradenames, investments in real estate | 75 |
investment trusts, investments in regulated investment companies, | 76 |
and appreciation on deferred compensation. "Intangible income" | 77 |
does not include prizes, awards, or other income associated with | 78 |
any lottery winnings or other similar games of chance. | 79 |
(6) "S corporation" means a corporation that has made an | 80 |
election under subchapter S of Chapter 1 of Subtitle A of the | 81 |
Internal Revenue Code for its taxable year. | 82 |
(7) For taxable years beginning on or after January 1, 2004, | 83 |
"net profit" for a taxpayer other than an individual means | 84 |
adjusted federal taxable income and "net profit" for a taxpayer | 85 |
who is an individual means the individual's profit | 86 |
87 | |
reported on schedule C, schedule E, or schedule F, other than any | 88 |
amount allowed as a deduction under division (E)(2) or (3) of this | 89 |
section or amounts described in division (H) of this section. | 90 |
(8) "Taxpayer" means a person subject to a tax on income | 91 |
levied by a municipal corporation. Except as provided in division | 92 |
93 | |
that is a disregarded entity or a qualifying subchapter S | 94 |
subsidiary for federal income tax purposes, but "taxpayer" | 95 |
includes any other person who owns the disregarded entity or | 96 |
qualifying subchapter S subsidiary. | 97 |
(9) "Taxable year" means the corresponding tax reporting | 98 |
period as prescribed for the taxpayer under the Internal Revenue | 99 |
Code. | 100 |
(10) "Tax administrator" means the individual charged with | 101 |
direct responsibility for administration of a tax on income levied | 102 |
by a municipal corporation and includes: | 103 |
(a) The central collection agency and the regional income tax | 104 |
agency and their successors in interest, and other entities | 105 |
organized to perform functions similar to those performed by the | 106 |
central collection agency and the regional income tax agency; | 107 |
(b) A municipal corporation acting as the agent of another | 108 |
municipal corporation; and | 109 |
(c) Persons retained by a municipal corporation to administer | 110 |
a tax levied by the municipal corporation, but only if the | 111 |
municipal corporation does not compensate the person in whole or | 112 |
in part on a contingency basis. | 113 |
(11) "Person" includes individuals, firms, companies, | 114 |
business trusts, estates, trusts, partnerships, limited liability | 115 |
companies, associations, corporations, governmental entities, and | 116 |
any other entity. | 117 |
(12) "Schedule E" means internal revenue service schedule E | 118 |
filed by a taxpayer pursuant to the Internal Revenue Code. | 119 |
(13) "Schedule F" means internal revenue service schedule F | 120 |
filed by a taxpayer pursuant to the Internal Revenue Code. | 121 |
(B) No municipal corporation shall tax income at other than | 122 |
a uniform rate. | 123 |
(C) No municipal corporation shall levy a tax on income at a | 124 |
rate in excess of one per cent without having obtained the | 125 |
approval of the excess by a majority of the electors of the | 126 |
municipality voting on the question at a general, primary, or | 127 |
special election. The legislative authority of the municipal | 128 |
corporation shall file with the board of elections at least | 129 |
seventy-five days before the day of the election a copy of the | 130 |
ordinance together with a resolution specifying the date the | 131 |
election is to be held and directing the board of elections to | 132 |
conduct the election. The ballot shall be in the following form: | 133 |
"Shall the Ordinance providing for a ... per cent levy on income | 134 |
for (Brief description of the purpose of the proposed levy) be | 135 |
passed? | 136 |
137 |
FOR THE INCOME TAX | 138 | ||||
AGAINST THE INCOME TAX | " | 139 |
140 |
In the event of an affirmative vote, the proceeds of the levy | 141 |
may be used only for the specified purpose. | 142 |
(D)(1) Except as otherwise provided in | 143 |
this section, no municipal corporation shall exempt from a tax on | 144 |
income compensation for personal services of individuals over | 145 |
eighteen years of age or the net profit from a business or | 146 |
profession. | 147 |
(2)(a) For taxable years beginning on or after January 1, | 148 |
2004, no municipal corporation shall tax the net profit from a | 149 |
business or profession using any base other than the taxpayer's | 150 |
adjusted federal taxable income. | 151 |
(b) Division (D)(2)(a) of this section does not apply to any | 152 |
taxpayer required to file a return under section 5745.03 of the | 153 |
Revised Code or to the net profit from a sole proprietorship. | 154 |
(E)(1) The legislative authority of a municipal corporation | 155 |
may, by ordinance or resolution, exempt from withholding and from | 156 |
a tax on income the following: | 157 |
| 158 |
disposition of a stock option, the exercise of a stock option, or | 159 |
the sale, exchange, or other disposition of stock purchased under | 160 |
a stock option; or | 161 |
| 162 |
compensation plan or program described in section 3121(v)(2)(C) of | 163 |
the Internal Revenue Code. | 164 |
(2) The legislative authority of a municipal corporation may | 165 |
adopt an ordinance or resolution that allows a taxpayer who is an | 166 |
individual to deduct, in computing the taxpayer's municipal income | 167 |
tax liability, an amount equal to the aggregate amount the | 168 |
taxpayer paid in cash during the taxable year to a health savings | 169 |
account of the taxpayer, to the extent the taxpayer is entitled to | 170 |
deduct that amount under section 223 of the Internal Revenue Code. | 171 |
(3) The legislative authority of a municipal corporation may | 172 |
adopt an ordinance or resolution that allows a taxpayer who has a | 173 |
net profit from a business or profession that is operated as a | 174 |
sole proprietorship to deduct from that net profit the amount that | 175 |
the taxpayer paid during the taxable year for medical care | 176 |
insurance for the taxpayer, the taxpayer's spouse, and dependents | 177 |
as defined in section 5747.01 of the Revised Code. The deduction | 178 |
shall be net of any related premium refunds, related premium | 179 |
reimbursements, or related insurance premium dividends received by | 180 |
the taxpayer during the taxable year. | 181 |
As used in division (E)(3) of this section, "medical care" | 182 |
has the same meaning given in section 213 of the Internal Revenue | 183 |
Code, subject to the special rules, limitations, and exclusions | 184 |
set forth therein. | 185 |
(F) If an individual's taxable income includes income | 186 |
against which the taxpayer has taken a deduction for federal | 187 |
income tax purposes as reportable on the taxpayer's form 2106, and | 188 |
against which a like deduction has not been allowed by the | 189 |
municipal corporation, the municipal corporation shall deduct from | 190 |
the taxpayer's taxable income an amount equal to the deduction | 191 |
shown on such form allowable against such income, to the extent | 192 |
not otherwise so allowed as a deduction by the municipal | 193 |
corporation. | 194 |
(G)(1) In the case of a taxpayer who has a net profit from a | 195 |
business or profession that is operated as a sole proprietorship, | 196 |
no municipal corporation may tax or use as the base for | 197 |
determining the amount of the net profit that shall be considered | 198 |
as having a taxable situs in the municipal corporation, an amount | 199 |
other than the net profit required to be reported by the taxpayer | 200 |
on schedule C or F from such sole proprietorship for the taxable | 201 |
year. | 202 |
(2) In the case of a taxpayer who has a net profit from | 203 |
rental activity required to be reported on schedule E, no | 204 |
municipal corporation may tax or use as the base for determining | 205 |
the amount of the net profit that shall be considered as having a | 206 |
taxable situs in the municipal corporation, an amount other than | 207 |
the net profit from rental activities required to be reported by | 208 |
the taxpayer on schedule E for the taxable year. | 209 |
| 210 |
following: | 211 |
(1) The military pay or allowances of members of the armed | 212 |
forces of the United States and of members of their reserve | 213 |
components, including the Ohio national guard; | 214 |
(2) The income of religious, fraternal, charitable, | 215 |
scientific, literary, or educational institutions to the extent | 216 |
that such income is derived from tax-exempt real estate, | 217 |
tax-exempt tangible or intangible property, or tax-exempt | 218 |
activities; | 219 |
(3) Except as otherwise provided in division | 220 |
section, intangible income; | 221 |
(4) Compensation paid under section 3501.28 or 3501.36 of the | 222 |
Revised Code to a person serving as a precinct election official, | 223 |
to the extent that such compensation does not exceed one thousand | 224 |
dollars annually. Such compensation in excess of one thousand | 225 |
dollars may be subjected to taxation by a municipal corporation. A | 226 |
municipal corporation shall not require the payer of such | 227 |
compensation to withhold any tax from that compensation. | 228 |
(5) Compensation paid to an employee of a transit authority, | 229 |
regional transit authority, or regional transit commission created | 230 |
under Chapter 306. of the Revised Code for operating a transit bus | 231 |
or other motor vehicle for the authority or commission in or | 232 |
through the municipal corporation, unless the bus or vehicle is | 233 |
operated on a regularly scheduled route, the operator is subject | 234 |
to such a tax by reason of residence or domicile in the municipal | 235 |
corporation, or the headquarters of the authority or commission is | 236 |
located within the municipal corporation; | 237 |
(6) The income of a public utility, when that public utility | 238 |
is subject to the tax levied under section 5727.24 or 5727.30 of | 239 |
the Revised Code, except a municipal corporation may tax the | 240 |
following, subject to Chapter 5745. of the Revised Code: | 241 |
(a) Beginning January 1, 2002, the income of an electric | 242 |
company or combined company; | 243 |
(b) Beginning January 1, 2004, the income of a telephone | 244 |
company. | 245 |
As used in division | 246 |
company," "electric company," and "telephone company" have the | 247 |
same meanings as in section 5727.01 of the Revised Code. | 248 |
(7) On and after January 1, 2003, items excluded from federal | 249 |
gross income pursuant to section 107 of the Internal Revenue Code; | 250 |
(8) On and after January 1, 2001, compensation paid to a | 251 |
nonresident individual to the extent prohibited under section | 252 |
718.011 of the Revised Code; | 253 |
(9)(a) Except as provided in division | 254 |
this section, an S corporation shareholder's distributive share of | 255 |
net profits of the S corporation, other than any part of the | 256 |
distributive share of net profits that represents wages as defined | 257 |
in section 3121(a) of the Internal Revenue Code or net earnings | 258 |
from self-employment as defined in section 1402(a) of the Internal | 259 |
Revenue Code. | 260 |
(b) If, pursuant to division (H) of former section 718.01 of | 261 |
the Revised Code as it existed before March 11,2004, a majority of | 262 |
the electors of a municipal corporation voted in favor of the | 263 |
question at an election held on November 4, 2003, the municipal | 264 |
corporation may continue after 2002 to tax an S corporation | 265 |
shareholder's distributive share of net profits of an S | 266 |
corporation. | 267 |
(c) If, on December 6, 2002, a municipal corporation was | 268 |
imposing, assessing, and collecting a tax on an S corporation | 269 |
shareholder's distributive share of net profits of the S | 270 |
corporation to the extent the distributive share would be | 271 |
allocated or apportioned to this state under divisions (B)(1) and | 272 |
(2) of section 5733.05 of the Revised Code if the S corporation | 273 |
were a corporation subject to taxes imposed under Chapter 5733. of | 274 |
the Revised Code, the municipal corporation may continue to impose | 275 |
the tax on such distributive shares to the extent such shares | 276 |
would be so allocated or apportioned to this state only until | 277 |
December 31, 2004, unless a majority of the electors of the | 278 |
municipal corporation voting on the question of continuing to tax | 279 |
such shares after that date vote in favor of that question at an | 280 |
election held November 2, 2004. If a majority of those electors | 281 |
vote in favor of the question, the municipal corporation may | 282 |
continue after December 31, 2004, to impose the tax on such | 283 |
distributive shares only to the extent such shares would be so | 284 |
allocated or apportioned to this state. | 285 |
(d) For the purposes of division (D) of section 718.14 of the | 286 |
Revised Code, a municipal corporation shall be deemed to have | 287 |
elected to tax S corporation shareholders' distributive shares of | 288 |
net profits of the S corporation in the hands of the shareholders | 289 |
if a majority of the electors of a municipal corporation vote in | 290 |
favor of a question at an election held under division | 291 |
292 | |
shall specify by ordinance or rule that the tax applies to the | 293 |
distributive share of a shareholder of an S corporation in the | 294 |
hands of the shareholder of the S corporation. | 295 |
(10) Employee compensation that is not "qualifying wages" as | 296 |
defined in section 718.03 of the Revised Code. | 297 |
| 298 |
intangible income on March 29, 1988, pursuant to Section 3 of | 299 |
Amended Substitute Senate Bill No. 238 of the 116th general | 300 |
assembly, may continue to tax that type of income after 1988 if a | 301 |
majority of the electors of the municipal corporation voting on | 302 |
the question of whether to permit the taxation of that type of | 303 |
intangible income after 1988 vote in favor thereof at an election | 304 |
held on November 8, 1988. | 305 |
| 306 |
Revised Code shall authorize the levy of any tax on income that a | 307 |
municipal corporation is not authorized to levy under existing | 308 |
laws or shall require a municipal corporation to allow a deduction | 309 |
from taxable income for losses incurred from a sole proprietorship | 310 |
or partnership. | 311 |
| 312 |
corporation from allowing, by resolution or ordinance, a net | 313 |
operating loss carryforward. | 314 |
(2) Nothing in this chapter requires a municipal corporation | 315 |
to allow a net operating loss carryforward. | 316 |
| 317 |
disregarded entity for federal tax purposes may elect to be a | 318 |
separate taxpayer from its single member in all Ohio municipal | 319 |
corporations in which it either filed as a separate taxpayer or | 320 |
did not file for its taxable year ending in 2003, if all of the | 321 |
following conditions are met: | 322 |
(a) The limited liability company's single member is also a | 323 |
limited liability company; | 324 |
(b) The limited liability company and its single member were | 325 |
formed and doing business in one or more Ohio municipal | 326 |
corporations for at least five years before January 1, 2004; | 327 |
(c) Not later than December 31, 2004, the limited liability | 328 |
company and its single member each make an election to be treated | 329 |
as a separate taxpayer under division | 330 |
(d) The limited liability company was not formed for the | 331 |
purpose of evading or reducing Ohio municipal corporation income | 332 |
tax liability of the limited liability company or its single | 333 |
member; | 334 |
(e) The Ohio municipal corporation that is the primary place | 335 |
of business of the sole member of the limited liability company | 336 |
consents to the election. | 337 |
(2) For purposes of division | 338 |
municipal corporation is the primary place of business of a | 339 |
limited liability company if, for the limited liability company's | 340 |
taxable year ending in 2003, its income tax liability is greater | 341 |
in that municipal corporation than in any other municipal | 342 |
corporation in Ohio, and that tax liability to that municipal | 343 |
corporation for its taxable year ending in 2003 is at least four | 344 |
hundred thousand dollars. | 345 |
Sec. 718.02. This section does not apply to taxpayers that | 346 |
are subject to and required to file reports under Chapter 5745. of | 347 |
the Revised Code. | 348 |
(A) Except as otherwise provided in division (D) of this | 349 |
section, net profit from a business or profession conducted both | 350 |
within and without the boundaries of a municipal corporation shall | 351 |
be considered as having a taxable situs in such municipal | 352 |
corporation for purposes of municipal income taxation in the same | 353 |
proportion as the average ratio of the following: | 354 |
(1) The average original cost of the real and tangible | 355 |
personal property owned or used by the taxpayer in the business or | 356 |
profession in such municipal corporation during the taxable period | 357 |
to the average original cost of all of the real and tangible | 358 |
personal property owned or used by the taxpayer in the business or | 359 |
profession during the same period, wherever situated. | 360 |
As used in the preceding paragraph, real property shall | 361 |
include property rented or leased by the taxpayer and the value of | 362 |
such property shall be determined by multiplying the annual rental | 363 |
thereon by eight; | 364 |
(2) Wages, salaries, and other compensation paid during the | 365 |
taxable period to persons employed in the business or profession | 366 |
for services performed in such municipal corporation to wages, | 367 |
salaries, and other compensation paid during the same period to | 368 |
persons employed in the business or profession, wherever their | 369 |
services are performed, excluding compensation that is not taxable | 370 |
by the municipal corporation under section 718.011 of the Revised | 371 |
Code; | 372 |
(3) Gross receipts of the business or profession from sales | 373 |
made and services performed during the taxable period in such | 374 |
municipal corporation to gross receipts of the business or | 375 |
profession during the same period from sales and services, | 376 |
wherever made or performed. | 377 |
If the foregoing apportionment formula does not produce an | 378 |
equitable result, another basis may be substituted, under uniform | 379 |
regulations, so as to produce an equitable result. | 380 |
(B) As used in division (A) of this section, "sales made in a | 381 |
municipal corporation" mean: | 382 |
(1) All sales of tangible personal property delivered within | 383 |
such municipal corporation regardless of where title passes if | 384 |
shipped or delivered from a stock of goods within such municipal | 385 |
corporation; | 386 |
(2) All sales of tangible personal property delivered within | 387 |
such municipal corporation regardless of where title passes even | 388 |
though transported from a point outside such municipal corporation | 389 |
if the taxpayer is regularly engaged through its own employees in | 390 |
the solicitation or promotion of sales within such municipal | 391 |
corporation and the sales result from such solicitation or | 392 |
promotion; | 393 |
(3) All sales of tangible personal property shipped from a | 394 |
place within such municipal corporation to purchasers outside such | 395 |
municipal corporation regardless of where title passes if the | 396 |
taxpayer is not, through its own employees, regularly engaged in | 397 |
the solicitation or promotion of sales at the place where delivery | 398 |
is made. | 399 |
(C) Except as otherwise provided in division (D) of this | 400 |
section, net profit from rental activity not constituting a | 401 |
business or profession shall be subject to tax only by the | 402 |
municipal corporation in which the property generating the net | 403 |
profit is located. | 404 |
(D) This section does not apply to individuals who are | 405 |
residents of the municipal corporation and, except as otherwise | 406 |
provided in section 718.01 of the Revised Code, a municipal | 407 |
corporation may impose a tax on all income earned by residents of | 408 |
the municipal corporation to the extent allowed by the United | 409 |
States Constitution. | 410 |
(E) If, in computing the taxpayer's adjusted federal taxable | 411 |
income, the taxpayer deducted any amount with respect to a stock | 412 |
option granted to an employee, and if the employee is not required | 413 |
to include in income any amount or any portion thereof because it | 414 |
is exempted from taxation under division | 415 |
718.01 of the Revised Code and division (A)(2)(d) of section | 416 |
718.03 of the Revised Code by a municipal corporation to which the | 417 |
taxpayer has apportioned a portion of its net profit, the taxpayer | 418 |
shall add the amount that is exempt from taxation to the | 419 |
taxpayer's net profit that was apportioned to that municipal | 420 |
corporation. In no case shall a taxpayer be required to add to its | 421 |
net profit that was apportioned to that municipal corporation any | 422 |
amount other than the amount upon which the employee would be | 423 |
required to pay tax were the amount related to the stock option | 424 |
not exempted from taxation. | 425 |
This division applies solely for the purpose of making an | 426 |
adjustment to the amount of a taxpayer's net profit that was | 427 |
apportioned to a municipal corporation under divisions (A) and (B) | 428 |
of this section. | 429 |
Section 2. That existing sections 718.01 and 718.02 of the | 430 |
Revised Code are hereby repealed. | 431 |
Section 3. The amendment by this act of sections 718.01 and | 432 |
718.02 of the Revised Code applies to taxable years beginning on | 433 |
or after January 1, 2007. | 434 |