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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | Am. S. B. No. 173 |
SENATORS B. JOHNSON-NEIN
A BILL
To amend sections 5739.01 and 5739.033 of the Revised Code to provide that, on
and after January 1, 2000,
prepaid authorization numbers used to make telephone calls or prepaid
telephone calling cards are subject to the state sales tax at the time of
sale.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5739.01 and 5739.033 of the Revised Code be amended
to read as follows:
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 be exempt
from 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 be exempt
from 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 EXCEPT AS PROVIDED IN DIVISION
(B)(8) OF THIS SECTION, TELECOMMUNICATIONS service is 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;
(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.
(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 professional, insurance, or personal service
transactions which 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 USED TO MAKE
A TELEPHONE CALL 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 which 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) 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. DIVISION (E)(15) OF THIS SECTION
DOES NOT APPLY TO A PREPAID AUTHORIZATION NUMBER USED TO MAKE A TELEPHONE CALL
OR A PREPAID TELEPHONE CALLING CARD.
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 self 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.
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, 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. As used in division (H)(3) of this section, "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 which was obtained by the person making the
sale, through purchase or otherwise, for the person's own use in this
state and which was previously subject to the state's taxing
jurisdiction on its sale or use, and includes such items acquired
for the seller's use which 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 such 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 which 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 which 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 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.
(V) "Legislative authority" means, with respect to a
regional transit authority, the board of trustees thereof, and
with respect to a county which 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 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.
(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.
(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 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.
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.
(A) Except as otherwise provided in this section and
division (C) of section 5739.031 of the Revised Code, all sales
are conclusively determined to be consummated at 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 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 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 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 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 is a limited vendor as specified in
division (B) of section 5739.17 of the Revised Code, the sale is
conclusively determined to be consummated at the temporary event
at which the vendor is making sales.
(D) 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 sale is conclusively determined to be
consummated at the location of the motor vehicle when the sale is
made.
(E) If the vendor is a delivery vendor as specified in
division (D) of section 5739.17 of the Revised Code, 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.
(F) 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 sale is conclusively
determined to be consummated at the
location of the consumer where the service is performed or
received.
(G) If EXCEPT AS PROVIDED IN DIVISION (J) OF THIS SECTION,
IF the vendor provides a service specified in division
(B)(3)(f) or (i) of section 5739.01 of the Revised Code, 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 the case of a telecommunications service, the
telephone number or account is located outside this state, the
sale is conclusively determined to be consummated at the location
in this state from which the service originated.
(H) If the vendor provides lodging to transient guests as
specified in division (B)(2) of section 5739.01 of the Revised
Code, the sale is conclusively determined to be consummated at
the location where the lodging is located.
(I) 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 sale is conclusively determined to be consummated at
the location of the consumer. If the vendor is not a delivery
vendor, 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 sale is conclusively determined
to be consummated in the county of titling.
(J) IF THE VENDOR SELLS A PREPAID AUTHORIZATION NUMBER USED TO
MAKE A TELEPHONE CALL OR A PREPAID TELEPHONE CALLING CARD, THE SALE IS
CONCLUSIVELY DETERMINED TO BE CONSUMMATED AT THE VENDOR'S PLACE OF BUSINESS
AND SHALL BE TAXED AT THE TIME OF SALE.
Section 2. That existing sections 5739.01 and 5739.033 of the Revised Code are
hereby repealed.
Section 3. Sections 1 and 2 of this act shall take effect January 1, 2000.
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