As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 194

Senator Kearney 

Cosponsors: Senators Miller, D., Fedor, Goodman, Jones, Morano, Turner, Schiavoni 

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A BILL

To amend section 5747.08 of the Revised Code to

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permit individual taxpayers to direct the state to

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transmit an income tax refund directly to the

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taxpayer's savings or tax-qualified retirement

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account.

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

Section 1. That section 5747.08 of the Revised Code be	6
amended to read as follows:	7

Sec. 5747.08.  An annual return with respect to the tax	8
imposed by section 5747.02 of the Revised Code and each tax	9
imposed under Chapter 5748. of the Revised Code shall be made by	10
every taxpayer for any taxable year for which the taxpayer is	11
liable for the tax imposed by that section or under that chapter,	12
unless the total credits allowed under divisions (E), (F), and (G)	13
of section 5747.05 of the Revised Code for the year are equal to	14
or exceed the tax imposed by section 5747.02 of the Revised Code,	15
in which case no return shall be required unless the taxpayer is	16
liable for a tax imposed pursuant to Chapter 5748. of the Revised	17
Code.	18

(A) If an individual is deceased, any return or notice	19
required of that individual under this chapter shall be made and	20
filed by that decedent's executor, administrator, or other person	21
charged with the property of that decedent.	22

(B) If an individual is unable to make a return or notice	23
required by this chapter, the return or notice required of that	24
individual shall be made and filed by the individual's duly	25
authorized agent, guardian, conservator, fiduciary, or other	26
person charged with the care of the person or property of that	27
individual.	28

(C) Returns or notices required of an estate or a trust shall	29
be made and filed by the fiduciary of the estate or trust.	30

(D)(1)(a) Except as otherwise provided in division (D)(1)(b)	31
of this section, any pass-through entity may file a single return	32
on behalf of one or more of the entity's investors other than an	33
investor that is a person subject to the tax imposed under section	34
5733.06 of the Revised Code. The single return shall set forth the	35
name, address, and social security number or other identifying	36
number of each of those pass-through entity investors and shall	37
indicate the distributive share of each of those pass-through	38
entity investor's income taxable in this state in accordance with	39
sections 5747.20 to 5747.231 of the Revised Code. Such	40
pass-through entity investors for whom the pass-through entity	41
elects to file a single return are not entitled to the exemption	42
or credit provided for by sections 5747.02 and 5747.022 of the	43
Revised Code; shall calculate the tax before business credits at	44
the highest rate of tax set forth in section 5747.02 of the	45
Revised Code for the taxable year for which the return is filed;	46
and are entitled to only their distributive share of the business	47
credits as defined in division (D)(2) of this section. A single	48
check drawn by the pass-through entity shall accompany the return	49
in full payment of the tax due, as shown on the single return, for	50
such investors, other than investors who are persons subject to	51
the tax imposed under section 5733.06 of the Revised Code.	52

(b)(i) A pass-through entity shall not include in such a	53
single return any investor that is a trust to the extent that any	54
direct or indirect current, future, or contingent beneficiary of	55
the trust is a person subject to the tax imposed under section	56
5733.06 of the Revised Code.	57

(ii) A pass-through entity shall not include in such a single	58
return any investor that is itself a pass-through entity to the	59
extent that any direct or indirect investor in the second	60
pass-through entity is a person subject to the tax imposed under	61
section 5733.06 of the Revised Code.	62

(c) Nothing in division (D) of this section precludes the tax	63
commissioner from requiring such investors to file the return and	64
make the payment of taxes and related interest, penalty, and	65
interest penalty required by this section or section 5747.02,	66
5747.09, or 5747.15 of the Revised Code. Nothing in division (D)	67
of this section shall be construed to provide to such an investor	68
or pass-through entity any additional deduction or credit, other	69
than the credit provided by division (J) of this section, solely	70
on account of the entity's filing a return in accordance with this	71
section. Such a pass-through entity also shall make the filing and	72
payment of estimated taxes on behalf of the pass-through entity	73
investors other than an investor that is a person subject to the	74
tax imposed under section 5733.06 of the Revised Code.	75

(2) For the purposes of this section, "business credits"	76
means the credits listed in section 5747.98 of the Revised Code	77
excluding the following credits:	78

(a) The retirement credit under division (B) of section	79
5747.055 of the Revised Code;	80

(b) The senior citizen credit under division (C) of section	81
5747.05 of the Revised Code;	82

(c) The lump sum distribution credit under division (D) of	83
section 5747.05 of the Revised Code;	84

(d) The dependent care credit under section 5747.054 of the	85
Revised Code;	86

(e) The lump sum retirement income credit under division (C)	87
of section 5747.055 of the Revised Code;	88

(f) The lump sum retirement income credit under division (D)	89
of section 5747.055 of the Revised Code;	90

(g) The lump sum retirement income credit under division (E)	91
of section 5747.055 of the Revised Code;	92

(h) The credit for displaced workers who pay for job training	93
under section 5747.27 of the Revised Code;	94

(i) The twenty-dollar personal exemption credit under section	95
5747.022 of the Revised Code;	96

(j) The joint filing credit under division (G) of section	97
5747.05 of the Revised Code;	98

(k) The nonresident credit under division (A) of section	99
5747.05 of the Revised Code;	100

(l) The credit for a resident's out-of-state income under	101
division (B) of section 5747.05 of the Revised Code;	102

(m) The low-income credit under section 5747.056 of the	103
Revised Code.	104

(3) The election provided for under division (D) of this	105
section applies only to the taxable year for which the election is	106
made by the pass-through entity. Unless the tax commissioner	107
provides otherwise, this election, once made, is binding and	108
irrevocable for the taxable year for which the election is made.	109
Nothing in this division shall be construed to provide for any	110
deduction or credit that would not be allowable if a nonresident	111
pass-through entity investor were to file an annual return.	112

(4) If a pass-through entity makes the election provided for	113
under division (D) of this section, the pass-through entity shall	114
be liable for any additional taxes, interest, interest penalty, or	115
penalties imposed by this chapter if the tax commissioner finds	116
that the single return does not reflect the correct tax due by the	117
pass-through entity investors covered by that return. Nothing in	118
this division shall be construed to limit or alter the liability,	119
if any, imposed on pass-through entity investors for unpaid or	120
underpaid taxes, interest, interest penalty, or penalties as a	121
result of the pass-through entity's making the election provided	122
for under division (D) of this section. For the purposes of	123
division (D) of this section, "correct tax due" means the tax that	124
would have been paid by the pass-through entity had the single	125
return been filed in a manner reflecting the tax commissioner's	126
findings. Nothing in division (D) of this section shall be	127
construed to make or hold a pass-through entity liable for tax	128
attributable to a pass-through entity investor's income from a	129
source other than the pass-through entity electing to file the	130
single return.	131

(E) If a husband and wife file a joint federal income tax	132
return for a taxable year, they shall file a joint return under	133
this section for that taxable year, and their liabilities are	134
joint and several, but, if the federal income tax liability of	135
either spouse is determined on a separate federal income tax	136
return, they shall file separate returns under this section.	137

If either spouse is not required to file a federal income tax	138
return and either or both are required to file a return pursuant	139
to this chapter, they may elect to file separate or joint returns,	140
and, pursuant to that election, their liabilities are separate or	141
joint and several. If a husband and wife file separate returns	142
pursuant to this chapter, each must claim the taxpayer's own	143
exemption, but not both, as authorized under section 5747.02 of	144
the Revised Code on the taxpayer's own return.	145

(F) Each return or notice required to be filed under this	146
section shall contain the signature of the taxpayer or the	147
taxpayer's duly authorized agent and of the person who prepared	148
the return for the taxpayer, and shall include the taxpayer's	149
social security number. Each return shall be verified by a	150
declaration under the penalties of perjury. The tax commissioner	151
shall prescribe the form that the signature and declaration shall	152
take.	153

(G) Each return or notice required to be filed under this	154
section shall be made and filed as required by section 5747.04 of	155
the Revised Code, on or before the fifteenth day of April of each	156
year, on forms that the tax commissioner shall prescribe, together	157
with remittance made payable to the treasurer of state in the	158
combined amount of the state and all school district income taxes	159
shown to be due on the form, unless the combined amount shown to	160
be due is one dollar or less, in which case that amount need not	161
be remitted.	162

Upon good cause shown, the tax commissioner may extend the	163
period for filing any notice or return required to be filed under	164
this section and may adopt rules relating to extensions. If the	165
extension results in an extension of time for the payment of any	166
state or school district income tax liability with respect to	167
which the return is filed, the taxpayer shall pay at the time the	168
tax liability is paid an amount of interest computed at the rate	169
per annum prescribed by section 5703.47 of the Revised Code on	170
that liability from the time that payment is due without extension	171
to the time of actual payment. Except as provided in section	172
5747.132 of the Revised Code, in addition to all other interest	173
charges and penalties, all taxes imposed under this chapter or	174
Chapter 5748. of the Revised Code and remaining unpaid after they	175
become due, except combined amounts due of one dollar or less,	176
bear interest at the rate per annum prescribed by section 5703.47	177
of the Revised Code until paid or until the day an assessment is	178
issued under section 5747.13 of the Revised Code, whichever occurs	179
first.	180

If the tax commissioner considers it necessary in order to	181
ensure the payment of the tax imposed by section 5747.02 of the	182
Revised Code or any tax imposed under Chapter 5748. of the Revised	183
Code, the tax commissioner may require returns and payments to be	184
made otherwise than as provided in this section.	185

To the extent that any provision in this division conflicts	186
with any provision in section 5747.026 of the Revised Code, the	187
provision in that section prevails.	188

(H) If any report, claim, statement, or other document	189
required to be filed, or any payment required to be made, within a	190
prescribed period or on or before a prescribed date under this	191
chapter is delivered after that period or that date by United	192
States mail to the agency, officer, or office with which the	193
report, claim, statement, or other document is required to be	194
filed, or to which the payment is required to be made, the date of	195
the postmark stamped on the cover in which the report, claim,	196
statement, or other document, or payment is mailed shall be deemed	197
to be the date of delivery or the date of payment.	198

If a payment is required to be made by electronic funds	199
transfer pursuant to section 5747.072 of the Revised Code, the	200
payment is considered to be made when the payment is received by	201
the treasurer of state or credited to an account designated by the	202
treasurer of state for the receipt of tax payments.	203

"The date of the postmark" means, in the event there is more	204
than one date on the cover, the earliest date imprinted on the	205
cover by the United States postal service.	206

(I) The amounts withheld by the employer pursuant to section	207
5747.06 of the Revised Code shall be allowed to the recipient of	208
the compensation as credits against payment of the appropriate	209
taxes imposed on the recipient by section 5747.02 and under	210
Chapter 5748. of the Revised Code.	211

(J) If, in accordance with division (D) of this section, a	212
pass-through entity elects to file a single return and if any	213
investor is required to file the return and make the payment of	214
taxes required by this chapter on account of the investor's other	215
income that is not included in a single return filed by a	216
pass-through entity, the investor is entitled to a refundable	217
credit equal to the investor's proportionate share of the tax paid	218
by the pass-through entity on behalf of the investor. The investor	219
shall claim the credit for the investor's taxable year in which or	220
with which ends the taxable year of the pass-through entity.	221
Nothing in this chapter shall be construed to allow any credit	222
provided in this chapter to be claimed more than once. For the	223
purposes of computing any interest, penalty, or interest penalty,	224
the investor shall be deemed to have paid the refundable credit	225
provided by this division on the day that the pass-through entity	226
paid the estimated tax or the tax giving rise to the credit.	227

(K) The tax commissioner shall ensure that each return	228
required to be filed under this section includes a box that the	229
taxpayer may check to authorize a paid tax preparer who prepared	230
the return to communicate with the department of taxation about	231
matters pertaining to the return. The return or instructions	232
accompanying the return shall indicate that by checking the box	233
the taxpayer authorizes the department of taxation to contact the	234
preparer concerning questions that arise during the processing of	235
the return and authorizes the preparer only to provide the	236
department with information that is missing from the return, to	237
contact the department for information about the processing of the	238
return or the status of the taxpayer's refund or payments, and to	239
respond to notices about mathematical errors, offsets, or return	240
preparation that the taxpayer has received from the department and	241
has shown to the preparer.	242

(L) The tax commissioner shall permit individual taxpayers,	243
when the taxpayer files the annual return required by this	244
section, to instruct the department of taxation to cause any	245
refund of overpaid taxes to be deposited directly into a savings	246
account, a cash or deferred arrangement account described in	247
subsection 401(k) of the Internal Revenue Code, an individual	248
retirement account or individual retirement annuity, or, in the	249
case of a taxpayer who is self-employed for the purposes of	250
subsection 401(c) of the Internal Revenue Code, a trust that is a	251
qualified plan under section 401 of the Internal Revenue Code	252
("Keogh" plan), as designated by the taxpayer, regardless of	253
whether the taxpayer files a paper return or transmits the return	254
electronically or telephonically.	255

Section 2. That existing section 5747.08 of the Revised Code	256
is hereby repealed.	257