As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 649

Representative Barborak 

Cosponsors: Representatives Ashford, Becker, Mallory, Sheehy, Hagan, R. 

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A BILL

To amend section 5739.02 of the Revised Code to

1

exempt from sales and use taxation the bulk sale

2

of firewood, propane, butane, kerosene, and number

3

two fuel oil for heating purposes and to declare

4

an emergency.

5

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

Section 1. That section 5739.02 of the Revised Code be	6
amended to read as follows:	7

Sec. 5739.02.  For the purpose of providing revenue with	8
which to meet the needs of the state, for the use of the general	9
revenue fund of the state, for the purpose of securing a thorough	10
and efficient system of common schools throughout the state, for	11
the purpose of affording revenues, in addition to those from	12
general property taxes, permitted under constitutional	13
limitations, and from other sources, for the support of local	14
governmental functions, and for the purpose of reimbursing the	15
state for the expense of administering this chapter, an excise tax	16
is hereby levied on each retail sale made in this state.	17

(A)(1) The tax shall be collected as provided in section	18
5739.025 of the Revised Code. The rate of the tax shall be five	19
and three-fourths per cent. The tax applies and is collectible	20
when the sale is made, regardless of the time when the price is	21
paid or delivered.	22

(2) In the case of the lease or rental, with a fixed term of	23
more than thirty days or an indefinite term with a minimum period	24
of more than thirty days, of any motor vehicles designed by the	25
manufacturer to carry a load of not more than one ton, watercraft,	26
outboard motor, or aircraft, or of any tangible personal property,	27
other than motor vehicles designed by the manufacturer to carry a	28
load of more than one ton, to be used by the lessee or renter	29
primarily for business purposes, the tax shall be collected by the	30
vendor at the time the lease or rental is consummated and shall be	31
calculated by the vendor on the basis of the total amount to be	32
paid by the lessee or renter under the lease agreement. If the	33
total amount of the consideration for the lease or rental includes	34
amounts that are not calculated at the time the lease or rental is	35
executed, the tax shall be calculated and collected by the vendor	36
at the time such amounts are billed to the lessee or renter. In	37
the case of an open-end lease or rental, the tax shall be	38
calculated by the vendor on the basis of the total amount to be	39
paid during the initial fixed term of the lease or rental, and for	40
each subsequent renewal period as it comes due. As used in this	41
division, "motor vehicle" has the same meaning as in section	42
4501.01 of the Revised Code, and "watercraft" includes an outdrive	43
unit attached to the watercraft.	44

A lease with a renewal clause and a termination penalty or	45
similar provision that applies if the renewal clause is not	46
exercised is presumed to be a sham transaction. In such a case,	47
the tax shall be calculated and paid on the basis of the entire	48
length of the lease period, including any renewal periods, until	49
the termination penalty or similar provision no longer applies.	50
The taxpayer shall bear the burden, by a preponderance of the	51
evidence, that the transaction or series of transactions is not a	52
sham transaction.	53

(3) Except as provided in division (A)(2) of this section, in	54
the case of a sale, the price of which consists in whole or in	55
part of the lease or rental of tangible personal property, the tax	56
shall be measured by the installments of that lease or rental.	57

(4) In the case of a sale of a physical fitness facility	58
service or recreation and sports club service, the price of which	59
consists in whole or in part of a membership for the receipt of	60
the benefit of the service, the tax applicable to the sale shall	61
be measured by the installments thereof.	62

(B) The tax does not apply to the following:

63

(1) Sales to the state or any of its political subdivisions,	64
or to any other state or its political subdivisions if the laws of	65
that state exempt from taxation sales made to this state and its	66
political subdivisions;	67

(2) Sales of food for human consumption off the premises	68
where sold;	69

(3) Sales of food sold to students only in a cafeteria,	70
dormitory, fraternity, or sorority maintained in a private,	71
public, or parochial school, college, or university;	72

(4) Sales of newspapers and sales or transfers of magazines	73
distributed as controlled circulation publications;	74

(5) The furnishing, preparing, or serving of meals without	75
charge by an employer to an employee provided the employer records	76
the meals as part compensation for services performed or work	77
done;	78

(6) Sales of motor fuel upon receipt, use, distribution, or	79
sale of which in this state a tax is imposed by the law of this	80
state, but this exemption shall not apply to the sale of motor	81
fuel on which a refund of the tax is allowable under division (A)	82
of section 5735.14 of the Revised Code; and the tax commissioner	83
may deduct the amount of tax levied by this section applicable to	84
the price of motor fuel when granting a refund of motor fuel tax	85
pursuant to division (A) of section 5735.14 of the Revised Code	86
and shall cause the amount deducted to be paid into the general	87
revenue fund of this state;	88

(7) Sales of natural gas by a natural gas company, of water	89
by a water-works company, or of steam by a heating company, if in	90
each case the thing sold is delivered to consumers through pipes	91
or conduits, and all sales of communications services by a	92
telegraph company, all terms as defined in section 5727.01 of the	93
Revised Code, and sales of electricity delivered through wires;	94

(8) Casual sales by a person, or auctioneer employed directly	95
by the person to conduct such sales, except as to such sales of	96
motor vehicles, watercraft or outboard motors required to be	97
titled under section 1548.06 of the Revised Code, watercraft	98
documented with the United States coast guard, snowmobiles, and	99
all-purpose vehicles as defined in section 4519.01 of the Revised	100
Code;	101

(9)(a) Sales of services or tangible personal property, other	102
than motor vehicles, mobile homes, and manufactured homes, by	103
churches, organizations exempt from taxation under section	104
501(c)(3) of the Internal Revenue Code of 1986, or nonprofit	105
organizations operated exclusively for charitable purposes as	106
defined in division (B)(12) of this section, provided that the	107
number of days on which such tangible personal property or	108
services, other than items never subject to the tax, are sold does	109
not exceed six in any calendar year, except as otherwise provided	110
in division (B)(9)(b) of this section. If the number of days on	111
which such sales are made exceeds six in any calendar year, the	112
church or organization shall be considered to be engaged in	113
business and all subsequent sales by it shall be subject to the	114
tax. In counting the number of days, all sales by groups within a	115
church or within an organization shall be considered to be sales	116
of that church or organization.	117

(b) The limitation on the number of days on which tax-exempt	118
sales may be made by a church or organization under division	119
(B)(9)(a) of this section does not apply to sales made by student	120
clubs and other groups of students of a primary or secondary	121
school, or a parent-teacher association, booster group, or similar	122
organization that raises money to support or fund curricular or	123
extracurricular activities of a primary or secondary school.	124

(c) Divisions (B)(9)(a) and (b) of this section do not apply	125
to sales by a noncommercial educational radio or television	126
broadcasting station.	127

(10) Sales not within the taxing power of this state under	128
the Constitution or laws of the United States or the Constitution	129
of this state;	130

(11) Except for transactions that are sales under division	131
(B)(3)(r) of section 5739.01 of the Revised Code, the	132
transportation of persons or property, unless the transportation	133
is by a private investigation and security service;	134

(12) Sales of tangible personal property or services to	135
churches, to organizations exempt from taxation under section	136
501(c)(3) of the Internal Revenue Code of 1986, and to any other	137
nonprofit organizations operated exclusively for charitable	138
purposes in this state, no part of the net income of which inures	139
to the benefit of any private shareholder or individual, and no	140
substantial part of the activities of which consists of carrying	141
on propaganda or otherwise attempting to influence legislation;	142
sales to offices administering one or more homes for the aged or	143
one or more hospital facilities exempt under section 140.08 of the	144
Revised Code; and sales to organizations described in division (D)	145
of section 5709.12 of the Revised Code.	146

"Charitable purposes" means the relief of poverty; the	147
improvement of health through the alleviation of illness, disease,	148
or injury; the operation of an organization exclusively for the	149
provision of professional, laundry, printing, and purchasing	150
services to hospitals or charitable institutions; the operation of	151
a home for the aged, as defined in section 5701.13 of the Revised	152
Code; the operation of a radio or television broadcasting station	153
that is licensed by the federal communications commission as a	154
noncommercial educational radio or television station; the	155
operation of a nonprofit animal adoption service or a county	156
humane society; the promotion of education by an institution of	157
learning that maintains a faculty of qualified instructors,	158
teaches regular continuous courses of study, and confers a	159
recognized diploma upon completion of a specific curriculum; the	160
operation of a parent-teacher association, booster group, or	161
similar organization primarily engaged in the promotion and	162
support of the curricular or extracurricular activities of a	163
primary or secondary school; the operation of a community or area	164
center in which presentations in music, dramatics, the arts, and	165
related fields are made in order to foster public interest and	166
education therein; the production of performances in music,	167
dramatics, and the arts; or the promotion of education by an	168
organization engaged in carrying on research in, or the	169
dissemination of, scientific and technological knowledge and	170
information primarily for the public.	171

Nothing in this division shall be deemed to exempt sales to	172
any organization for use in the operation or carrying on of a	173
trade or business, or sales to a home for the aged for use in the	174
operation of independent living facilities as defined in division	175
(A) of section 5709.12 of the Revised Code.	176

(13) Building and construction materials and services sold to	177
construction contractors for incorporation into a structure or	178
improvement to real property under a construction contract with	179
this state or a political subdivision of this state, or with the	180
United States government or any of its agencies; building and	181
construction materials and services sold to construction	182
contractors for incorporation into a structure or improvement to	183
real property that are accepted for ownership by this state or any	184
of its political subdivisions, or by the United States government	185
or any of its agencies at the time of completion of the structures	186
or improvements; building and construction materials sold to	187
construction contractors for incorporation into a horticulture	188
structure or livestock structure for a person engaged in the	189
business of horticulture or producing livestock; building	190
materials and services sold to a construction contractor for	191
incorporation into a house of public worship or religious	192
education, or a building used exclusively for charitable purposes	193
under a construction contract with an organization whose purpose	194
is as described in division (B)(12) of this section; building	195
materials and services sold to a construction contractor for	196
incorporation into a building under a construction contract with	197
an organization exempt from taxation under section 501(c)(3) of	198
the Internal Revenue Code of 1986 when the building is to be used	199
exclusively for the organization's exempt purposes; building and	200
construction materials sold for incorporation into the original	201
construction of a sports facility under section 307.696 of the	202
Revised Code; building and construction materials and services	203
sold to a construction contractor for incorporation into real	204
property outside this state if such materials and services, when	205
sold to a construction contractor in the state in which the real	206
property is located for incorporation into real property in that	207
state, would be exempt from a tax on sales levied by that state;	208
building and construction materials for incorporation into a	209
transportation facility pursuant to a public-private agreement	210
entered into under sections 5501.70 to 5501.83 of the Revised	211
Code; and, until one calendar year after the construction of a	212
convention center that qualifies for property tax exemption under	213
section 5709.084 of the Revised Code is completed, building and	214
construction materials and services sold to a construction	215
contractor for incorporation into the real property comprising	216
that convention center;	217

(14) Sales of ships or vessels or rail rolling stock used or	218
to be used principally in interstate or foreign commerce, and	219
repairs, alterations, fuel, and lubricants for such ships or	220
vessels or rail rolling stock;	221

(15) Sales to persons primarily engaged in any of the	222
activities mentioned in division (B)(42)(a), (g), or (h) of this	223
section, to persons engaged in making retail sales, or to persons	224
who purchase for sale from a manufacturer tangible personal	225
property that was produced by the manufacturer in accordance with	226
specific designs provided by the purchaser, of packages, including	227
material, labels, and parts for packages, and of machinery,	228
equipment, and material for use primarily in packaging tangible	229
personal property produced for sale, including any machinery,	230
equipment, and supplies used to make labels or packages, to	231
prepare packages or products for labeling, or to label packages or	232
products, by or on the order of the person doing the packaging, or	233
sold at retail. "Packages" includes bags, baskets, cartons,	234
crates, boxes, cans, bottles, bindings, wrappings, and other	235
similar devices and containers, but does not include motor	236
vehicles or bulk tanks, trailers, or similar devices attached to	237
motor vehicles. "Packaging" means placing in a package. Division	238
(B)(15) of this section does not apply to persons engaged in	239
highway transportation for hire.	240

(16) Sales of food to persons using supplemental nutrition	241
assistance program benefits to purchase the food. As used in this	242
division, "food" has the same meaning as in 7 U.S.C. 2012 and	243
federal regulations adopted pursuant to the Food and Nutrition Act	244
of 2008.	245

(17) Sales to persons engaged in farming, agriculture,	246
horticulture, or floriculture, of tangible personal property for	247
use or consumption primarily in the production by farming,	248
agriculture, horticulture, or floriculture of other tangible	249
personal property for use or consumption primarily in the	250
production of tangible personal property for sale by farming,	251
agriculture, horticulture, or floriculture; or material and parts	252
for incorporation into any such tangible personal property for use	253
or consumption in production; and of tangible personal property	254
for such use or consumption in the conditioning or holding of	255
products produced by and for such use, consumption, or sale by	256
persons engaged in farming, agriculture, horticulture, or	257
floriculture, except where such property is incorporated into real	258
property;	259

(18) Sales of drugs for a human being that may be dispensed	260
only pursuant to a prescription; insulin as recognized in the	261
official United States pharmacopoeia; urine and blood testing	262
materials when used by diabetics or persons with hypoglycemia to	263
test for glucose or acetone; hypodermic syringes and needles when	264
used by diabetics for insulin injections; epoetin alfa when	265
purchased for use in the treatment of persons with medical	266
disease; hospital beds when purchased by hospitals, nursing homes,	267
or other medical facilities; and medical oxygen and medical	268
oxygen-dispensing equipment when purchased by hospitals, nursing	269
homes, or other medical facilities;	270

(19) Sales of prosthetic devices, durable medical equipment	271
for home use, or mobility enhancing equipment, when made pursuant	272
to a prescription and when such devices or equipment are for use	273
by a human being.	274

(20) Sales of emergency and fire protection vehicles and	275
equipment to nonprofit organizations for use solely in providing	276
fire protection and emergency services, including trauma care and	277
emergency medical services, for political subdivisions of the	278
state;	279

(21) Sales of tangible personal property manufactured in this	280
state, if sold by the manufacturer in this state to a retailer for	281
use in the retail business of the retailer outside of this state	282
and if possession is taken from the manufacturer by the purchaser	283
within this state for the sole purpose of immediately removing the	284
same from this state in a vehicle owned by the purchaser;	285

(22) Sales of services provided by the state or any of its	286
political subdivisions, agencies, instrumentalities, institutions,	287
or authorities, or by governmental entities of the state or any of	288
its political subdivisions, agencies, instrumentalities,	289
institutions, or authorities;	290

(23) Sales of motor vehicles to nonresidents of this state	291
under the circumstances described in division (B) of section	292
5739.029 of the Revised Code;	293

(24) Sales to persons engaged in the preparation of eggs for	294
sale of tangible personal property used or consumed directly in	295
such preparation, including such tangible personal property used	296
for cleaning, sanitizing, preserving, grading, sorting, and	297
classifying by size; packages, including material and parts for	298
packages, and machinery, equipment, and material for use in	299
packaging eggs for sale; and handling and transportation equipment	300
and parts therefor, except motor vehicles licensed to operate on	301
public highways, used in intraplant or interplant transfers or	302
shipment of eggs in the process of preparation for sale, when the	303
plant or plants within or between which such transfers or	304
shipments occur are operated by the same person. "Packages"	305
includes containers, cases, baskets, flats, fillers, filler flats,	306
cartons, closure materials, labels, and labeling materials, and	307
"packaging" means placing therein.	308

(25)(a) Sales of water to a consumer for residential use;

309

(b) Sales of water by a nonprofit corporation engaged	310
exclusively in the treatment, distribution, and sale of water to	311
consumers, if such water is delivered to consumers through pipes	312
or tubing.	313

(26) Fees charged for inspection or reinspection of motor	314
vehicles under section 3704.14 of the Revised Code;	315

(27) Sales to persons licensed to conduct a food service	316
operation pursuant to section 3717.43 of the Revised Code, of	317
tangible personal property primarily used directly for the	318
following:	319

(a) To prepare food for human consumption for sale;

320

(b) To preserve food that has been or will be prepared for	321
human consumption for sale by the food service operator, not	322
including tangible personal property used to display food for	323
selection by the consumer;	324

(c) To clean tangible personal property used to prepare or	325
serve food for human consumption for sale.	326

(28) Sales of animals by nonprofit animal adoption services	327
or county humane societies;	328

(29) Sales of services to a corporation described in division	329
(A) of section 5709.72 of the Revised Code, and sales of tangible	330
personal property that qualifies for exemption from taxation under	331
section 5709.72 of the Revised Code;	332

(30) Sales and installation of agricultural land tile, as	333
defined in division (B)(5)(a) of section 5739.01 of the Revised	334
Code;	335

(31) Sales and erection or installation of portable grain	336
bins, as defined in division (B)(5)(b) of section 5739.01 of the	337
Revised Code;	338

(32) The sale, lease, repair, and maintenance of, parts for,	339
or items attached to or incorporated in, motor vehicles that are	340
primarily used for transporting tangible personal property	341
belonging to others by a person engaged in highway transportation	342
for hire, except for packages and packaging used for the	343
transportation of tangible personal property;	344

(33) Sales to the state headquarters of any veterans'	345
organization in this state that is either incorporated and issued	346
a charter by the congress of the United States or is recognized by	347
the United States veterans administration, for use by the	348
headquarters;	349

(34) Sales to a telecommunications service vendor, mobile	350
telecommunications service vendor, or satellite broadcasting	351
service vendor of tangible personal property and services used	352
directly and primarily in transmitting, receiving, switching, or	353
recording any interactive, one- or two-way electromagnetic	354
communications, including voice, image, data, and information,	355
through the use of any medium, including, but not limited to,	356
poles, wires, cables, switching equipment, computers, and record	357
storage devices and media, and component parts for the tangible	358
personal property. The exemption provided in this division shall	359
be in lieu of all other exemptions under division (B)(42)(a) or	360
(n) of this section to which the vendor may otherwise be entitled,	361
based upon the use of the thing purchased in providing the	362
telecommunications, mobile telecommunications, or satellite	363
broadcasting service.	364

(35)(a) Sales where the purpose of the consumer is to use or	365
consume the things transferred in making retail sales and	366
consisting of newspaper inserts, catalogues, coupons, flyers, gift	367
certificates, or other advertising material that prices and	368
describes tangible personal property offered for retail sale.	369

(b) Sales to direct marketing vendors of preliminary	370
materials such as photographs, artwork, and typesetting that will	371
be used in printing advertising material; and of printed matter	372
that offers free merchandise or chances to win sweepstake prizes	373
and that is mailed to potential customers with advertising	374
material described in division (B)(35)(a) of this section;	375

(c) Sales of equipment such as telephones, computers,	376
facsimile machines, and similar tangible personal property	377
primarily used to accept orders for direct marketing retail sales.	378

(d) Sales of automatic food vending machines that preserve	379
food with a shelf life of forty-five days or less by refrigeration	380
and dispense it to the consumer.	381

For purposes of division (B)(35) of this section, "direct	382
marketing" means the method of selling where consumers order	383
tangible personal property by United States mail, delivery	384
service, or telecommunication and the vendor delivers or ships the	385
tangible personal property sold to the consumer from a warehouse,	386
catalogue distribution center, or similar fulfillment facility by	387
means of the United States mail, delivery service, or common	388
carrier.	389

(36) Sales to a person engaged in the business of	390
horticulture or producing livestock of materials to be	391
incorporated into a horticulture structure or livestock structure;	392

(37) Sales of personal computers, computer monitors, computer	393
keyboards, modems, and other peripheral computer equipment to an	394
individual who is licensed or certified to teach in an elementary	395
or a secondary school in this state for use by that individual in	396
preparation for teaching elementary or secondary school students;	397

(38) Sales to a professional racing team of any of the	398
following:	399

(a) Motor racing vehicles;

400

(b) Repair services for motor racing vehicles;

401

(c) Items of property that are attached to or incorporated in	402
motor racing vehicles, including engines, chassis, and all other	403
components of the vehicles, and all spare, replacement, and	404
rebuilt parts or components of the vehicles; except not including	405
tires, consumable fluids, paint, and accessories consisting of	406
instrumentation sensors and related items added to the vehicle to	407
collect and transmit data by means of telemetry and other forms of	408
communication.	409

(39) Sales of used manufactured homes and used mobile homes,	410
as defined in section 5739.0210 of the Revised Code, made on or	411
after January 1, 2000;	412

(40) Sales of tangible personal property and services to a	413
provider of electricity used or consumed directly and primarily in	414
generating, transmitting, or distributing electricity for use by	415
others, including property that is or is to be incorporated into	416
and will become a part of the consumer's production, transmission,	417
or distribution system and that retains its classification as	418
tangible personal property after incorporation; fuel or power used	419
in the production, transmission, or distribution of electricity;	420
energy conversion equipment as defined in section 5727.01 of the	421
Revised Code; and tangible personal property and services used in	422
the repair and maintenance of the production, transmission, or	423
distribution system, including only those motor vehicles as are	424
specially designed and equipped for such use. The exemption	425
provided in this division shall be in lieu of all other exemptions	426
in division (B)(42)(a) or (n) of this section to which a provider	427
of electricity may otherwise be entitled based on the use of the	428
tangible personal property or service purchased in generating,	429
transmitting, or distributing electricity.	430

(41) Sales to a person providing services under division	431
(B)(3)(r) of section 5739.01 of the Revised Code of tangible	432
personal property and services used directly and primarily in	433
providing taxable services under that section.	434

(42) Sales where the purpose of the purchaser is to do any of	435
the following:	436

(a) To incorporate the thing transferred as a material or a	437
part into tangible personal property to be produced for sale by	438
manufacturing, assembling, processing, or refining; or to use or	439
consume the thing transferred directly in producing tangible	440
personal property for sale by mining, including, without	441
limitation, the extraction from the earth of all substances that	442
are classed geologically as minerals, production of crude oil and	443
natural gas, or directly in the rendition of a public utility	444
service, except that the sales tax levied by this section shall be	445
collected upon all meals, drinks, and food for human consumption	446
sold when transporting persons. Persons engaged in rendering	447
services in the exploration for, and production of, crude oil and	448
natural gas for others are deemed engaged directly in the	449
exploration for, and production of, crude oil and natural gas.	450
This paragraph does not exempt from "retail sale" or "sales at	451
retail" the sale of tangible personal property that is to be	452
incorporated into a structure or improvement to real property.	453

(b) To hold the thing transferred as security for the	454
performance of an obligation of the vendor;	455

(c) To resell, hold, use, or consume the thing transferred as	456
evidence of a contract of insurance;	457

(d) To use or consume the thing directly in commercial	458
fishing;	459

(e) To incorporate the thing transferred as a material or a	460
part into, or to use or consume the thing transferred directly in	461
the production of, magazines distributed as controlled circulation	462
publications;	463

(f) To use or consume the thing transferred in the production	464
and preparation in suitable condition for market and sale of	465
printed, imprinted, overprinted, lithographic, multilithic,	466
blueprinted, photostatic, or other productions or reproductions of	467
written or graphic matter;	468

(g) To use the thing transferred, as described in section	469
5739.011 of the Revised Code, primarily in a manufacturing	470
operation to produce tangible personal property for sale;	471

(h) To use the benefit of a warranty, maintenance or service	472
contract, or similar agreement, as described in division (B)(7) of	473
section 5739.01 of the Revised Code, to repair or maintain	474
tangible personal property, if all of the property that is the	475
subject of the warranty, contract, or agreement would not be	476
subject to the tax imposed by this section;	477

(i) To use the thing transferred as qualified research and	478
development equipment;	479

(j) To use or consume the thing transferred primarily in	480
storing, transporting, mailing, or otherwise handling purchased	481
sales inventory in a warehouse, distribution center, or similar	482
facility when the inventory is primarily distributed outside this	483
state to retail stores of the person who owns or controls the	484
warehouse, distribution center, or similar facility, to retail	485
stores of an affiliated group of which that person is a member, or	486
by means of direct marketing. This division does not apply to	487
motor vehicles registered for operation on the public highways. As	488
used in this division, "affiliated group" has the same meaning as	489
in division (B)(3)(e) of section 5739.01 of the Revised Code and	490
"direct marketing" has the same meaning as in division (B)(35) of	491
this section.	492

(k) To use or consume the thing transferred to fulfill a	493
contractual obligation incurred by a warrantor pursuant to a	494
warranty provided as a part of the price of the tangible personal	495
property sold or by a vendor of a warranty, maintenance or service	496
contract, or similar agreement the provision of which is defined	497
as a sale under division (B)(7) of section 5739.01 of the Revised	498
Code;	499

(l) To use or consume the thing transferred in the production	500
of a newspaper for distribution to the public;	501

(m) To use tangible personal property to perform a service	502
listed in division (B)(3) of section 5739.01 of the Revised Code,	503
if the property is or is to be permanently transferred to the	504
consumer of the service as an integral part of the performance of	505
the service;	506

(n) To use or consume the thing transferred primarily in	507
producing tangible personal property for sale by farming,	508
agriculture, horticulture, or floriculture. Persons engaged in	509
rendering farming, agriculture, horticulture, or floriculture	510
services for others are deemed engaged primarily in farming,	511
agriculture, horticulture, or floriculture. This paragraph does	512
not exempt from "retail sale" or "sales at retail" the sale of	513
tangible personal property that is to be incorporated into a	514
structure or improvement to real property.	515

(o) To use or consume the thing transferred in acquiring,	516
formatting, editing, storing, and disseminating data or	517
information by electronic publishing.	518

As used in division (B)(42) of this section, "thing" includes	519
all transactions included in divisions (B)(3)(a), (b), and (e) of	520
section 5739.01 of the Revised Code.	521

(43) Sales conducted through a coin operated device that	522
activates vacuum equipment or equipment that dispenses water,	523
whether or not in combination with soap or other cleaning agents	524
or wax, to the consumer for the consumer's use on the premises in	525
washing, cleaning, or waxing a motor vehicle, provided no other	526
personal property or personal service is provided as part of the	527
transaction.	528

(44) Sales of replacement and modification parts for engines,	529
airframes, instruments, and interiors in, and paint for, aircraft	530
used primarily in a fractional aircraft ownership program, and	531
sales of services for the repair, modification, and maintenance of	532
such aircraft, and machinery, equipment, and supplies primarily	533
used to provide those services.	534

(45) Sales of telecommunications service that is used	535
directly and primarily to perform the functions of a call center.	536
As used in this division, "call center" means any physical	537
location where telephone calls are placed or received in high	538
volume for the purpose of making sales, marketing, customer	539
service, technical support, or other specialized business	540
activity, and that employs at least fifty individuals that engage	541
in call center activities on a full-time basis, or sufficient	542
individuals to fill fifty full-time equivalent positions.	543

(46) Sales by a telecommunications service vendor of 900	544
service to a subscriber. This division does not apply to	545
information services, as defined in division (FF) of section	546
5739.01 of the Revised Code.	547

(47) Sales of value-added non-voice data service. This	548
division does not apply to any similar service that is not	549
otherwise a telecommunications service.	550

(48)(a) Sales of machinery, equipment, and software to a	551
qualified direct selling entity for use in a warehouse or	552
distribution center primarily for storing, transporting, or	553
otherwise handling inventory that is held for sale to independent	554
salespersons who operate as direct sellers and that is held	555
primarily for distribution outside this state;	556

(b) As used in division (B)(48)(a) of this section:

557

(i) "Direct seller" means a person selling consumer products	558
to individuals for personal or household use and not from a fixed	559
retail location, including selling such product at in-home product	560
demonstrations, parties, and other one-on-one selling.	561

(ii) "Qualified direct selling entity" means an entity	562
selling to direct sellers at the time the entity enters into a tax	563
credit agreement with the tax credit authority pursuant to section	564
122.17 of the Revised Code, provided that the agreement was	565
entered into on or after January 1, 2007. Neither contingencies	566
relevant to the granting of, nor later developments with respect	567
to, the tax credit shall impair the status of the qualified direct	568
selling entity under division (B)(48) of this section after	569
execution of the tax credit agreement by the tax credit authority.	570

(c) Division (B)(48) of this section is limited to machinery,	571
equipment, and software first stored, used, or consumed in this	572
state within the period commencing June 24, 2008, and ending on	573
the date that is five years after that date.	574

(49) Sales of materials, parts, equipment, or engines used in	575
the repair or maintenance of aircraft or avionics systems of such	576
aircraft, and sales of repair, remodeling, replacement, or	577
maintenance services in this state performed on aircraft or on an	578
aircraft's avionics, engine, or component materials or parts. As	579
used in division (B)(49) of this section, "aircraft" means	580
aircraft of more than six thousand pounds maximum certified	581
takeoff weight or used exclusively in general aviation.	582

(50) Sales of full flight simulators that are used for pilot	583
or flight-crew training, sales of repair or replacement parts or	584
components, and sales of repair or maintenance services for such	585
full flight simulators. "Full flight simulator" means a replica of	586
a specific type, or make, model, and series of aircraft cockpit.	587
It includes the assemblage of equipment and computer programs	588
necessary to represent aircraft operations in ground and flight	589
conditions, a visual system providing an out-of-the-cockpit view,	590
and a system that provides cues at least equivalent to those of a	591
three-degree-of-freedom motion system, and has the full range of	592
capabilities of the systems installed in the device as described	593
in appendices A and B of part 60 of chapter 1 of title 14 of the	594
Code of Federal Regulations.	595

(51) Any transfer or lease of tangible personal property	596
between the state and JobsOhio in accordance with section 4313.02	597
of the Revised Code.	598

(52)(a) Sales to a qualifying corporation.

599

(b) As used in division (B)(52) of this section:

600

(i) "Qualifying corporation" means a nonprofit corporation	601
organized in this state that leases from an eligible county land,	602
buildings, structures, fixtures, and improvements to the land that	603
are part of or used in a public recreational facility used by a	604
major league professional athletic team or a class A to class AAA	605
minor league affiliate of a major league professional athletic	606
team for a significant portion of the team's home schedule,	607
provided the following apply:	608

(I) The facility is leased from the eligible county pursuant	609
to a lease that requires substantially all of the revenue from the	610
operation of the business or activity conducted by the nonprofit	611
corporation at the facility in excess of operating costs, capital	612
expenditures, and reserves to be paid to the eligible county at	613
least once per calendar year.	614

(II) Upon dissolution and liquidation of the nonprofit	615
corporation, all of its net assets are distributable to the board	616
of commissioners of the eligible county from which the corporation	617
leases the facility.	618

(ii) "Eligible county" has the same meaning as in section	619
307.695 of the Revised Code.	620

(53) Sales to or by a cable service provider, video service	621
provider, or radio or television broadcast station regulated by	622
the federal government of cable service or programming, video	623
service or programming, audio service or programming, or	624
electronically transferred digital audiovisual or audio work. As	625
used in division (B)(53) of this section, "cable service" and	626
"cable service provider" have the same meanings as in section	627
1332.01 of the Revised Code, and "video service," "video service	628
provider," and "video programming" have the same meanings as in	629
section 1332.21 of the Revised Code.	630

(54) Sales in a nonpackaged form of firewood, kerosene,	631
liquid petroleum gas, or number two fuel oil that is to be used	632
for heating purposes.	633

(C) For the purpose of the proper administration of this	634
chapter, and to prevent the evasion of the tax, it is presumed	635
that all sales made in this state are subject to the tax until the	636
contrary is established.	637

(D) The levy of this tax on retail sales of recreation and	638
sports club service shall not prevent a municipal corporation from	639
levying any tax on recreation and sports club dues or on any	640
income generated by recreation and sports club dues.	641

(E) The tax collected by the vendor from the consumer under	642
this chapter is not part of the price, but is a tax collection for	643
the benefit of the state, and of counties levying an additional	644
sales tax pursuant to section 5739.021 or 5739.026 of the Revised	645
Code and of transit authorities levying an additional sales tax	646
pursuant to section 5739.023 of the Revised Code. Except for the	647
discount authorized under section 5739.12 of the Revised Code and	648
the effects of any rounding pursuant to section 5703.055 of the	649
Revised Code, no person other than the state or such a county or	650
transit authority shall derive any benefit from the collection or	651
payment of the tax levied by this section or section 5739.021,	652
5739.023, or 5739.026 of the Revised Code.	653

Section 2.  That existing section 5739.02 of the Revised Code	654
is hereby repealed.	655

Section 3. The amendment by this act of section 5739.02 of	656
the Revised Code applies on and after the first day of the first	657
month that begins after the effective date of this act.	658

Section 4. This act is hereby declared to be an emergency	659
measure necessary for the immediate preservation of the public	660
peace, health, and safety. The reason for such necessity is to	661
ensure that Ohio residents and businesses are not subject to sales	662
and use tax on the purchase of heating fuel during the approaching	663
winter season. Therefore, this act shall go into immediate effect.	664