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(123rd General Assembly)(House Bill Number 612)
AN ACT
To amend sections 3734.904, 3734.907, 3769.088, 4301.422, 4303.33, 4305.13,
4305.131, 5703.05, 5703.11, 5703.37, 5705.37, 5711.04, 5711.18,
5711.25, 5711.28, 5711.31, 5717.01, 5717.02, 5727.11, 5727.26,
5727.47, 5727.89, 5728.01, 5728.02, 5728.03, 5728.04, 5728.06,
5728.08, 5728.09, 5728.10, 5733.11, 5733.28, 5735.01, 5735.023,
5735.05, 5735.12, 5735.121, 5735.14, 5735.141, 5735.142, 5735.145,
5735.18, 5735.23, 5739.01, 5739.02, 5739.03, 5739.032, 5739.033,
5739.12, 5739.122, 5739.13, 5739.133, 5739.15, 5739.17, 5739.19,
5739.30, 5741.02, 5741.121, 5743.03, 5743.081, 5743.082, 5743.52,
5743.56, 5747.07, 5747.09, 5747.13, 5747.15, 5749.07, 5749.08, and 5749.15,
to enact sections 5703.054, 5703.055, 5703.056, and 5735.012, and
to repeal sections 5703.141, 5735.17, 5735.32, 5739.161, and
5747.082 of the Revised Code to authorize the electronic filing of
certain documents with the tax commissioner and treasurer of
state, extend the time for filing petitions for reassessments,
make various charges and penalties discretionary rather than
mandatory, change the method of service of notices by the tax
commissioner, authorize the use of delivery services instead of
the postal service for delivery of certain documents to the tax
commissioner, board of tax appeals, and treasurer of state, redefine and
specify certain
vehicles for purposes of the highway use and motor fuel taxes,
establish procedures for claiming exemptions from the use tax, and
make other changes related to the administration of the tax laws
by the department of taxation, and to amend the version of section
5741.02 of the Revised Code that is scheduled to take effect July
1, 2001, to continue the provisions of this act on and after that
date.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 3734.904, 3734.907, 3769.088, 4301.422, 4303.33,
4305.13, 4305.131, 5703.05, 5703.11, 5703.37, 5705.37, 5711.04,
5711.18, 5711.25, 5711.28, 5711.31, 5717.01, 5717.02, 5727.11,
5727.26, 5727.47, 5727.89, 5728.01, 5728.02, 5728.03, 5728.04,
5728.06, 5728.08, 5728.09, 5728.10, 5733.11, 5733.28, 5735.01,
5735.023, 5735.05, 5735.12, 5735.121, 5735.14, 5735.141, 5735.142,
5735.145, 5735.18, 5735.23, 5739.01, 5739.02, 5739.03, 5739.032,
5739.033, 5739.12, 5739.122, 5739.13, 5739.133, 5739.15, 5739.17,
5739.19, 5739.30, 5741.02, 5741.121, 5743.03, 5743.081, 5743.082,
5743.52, 5743.56, 5747.07, 5747.09, 5747.13, 5747.15, 5749.07, 5749.08, and
5749.15 be amended and sections 5703.054, 5703.055, 5703.056, and
5735.012 of the Revised Code be enacted to read as follows:
Sec. 3734.904. (A) By the twentieth day of each month,
each person required to pay the fee imposed by section 3734.901
of the Revised Code shall file with the treasurer of state a
return as prescribed by the tax commissioner and shall make
payment of the full amount of the fee due for the preceding month
after deduction of any discount provided for under division (E)
of this section. The return shall be signed by the person
required to file it, or an authorized employee, officer, or
agent. The treasurer shall mark on the return the date it was
received and indicate payment or nonpayment of the fee shown to
be due on the return. The treasurer immediately shall transmit
all returns to the tax commissioner. The return shall be deemed
filed when received by the treasurer of state. (B) Any person required by this section to file a return
who fails to file such a return within the period prescribed
shall may be required to pay an additional charge of fifty
dollars or ten per cent
of the fee required to be paid for the reporting period,
whichever is greater. The commissioner may collect the
additional charge by assessment pursuant to section 3734.907 of
the Revised Code. The commissioner may remit all or a portion of
the additional charge and may adopt rules relating thereto. (C) If any fee due is not paid timely in accordance with
this section, the person liable for the fee shall pay interest,
calculated at the rate per annum as prescribed by section 5703.47
of the Revised Code, from the date the fee payment was due to the
date of payment or to the date an assessment is issued,
whichever occurs first. Interest shall be paid in the same manner as the fee,
and the commissioner may collect the interest by
assessment pursuant to section 3734.907 of the Revised Code. (D) If, in the estimation of the tax commissioner, the
average liability of the person liable for the fee is such as not
to merit monthly filing, the commissioner may authorize the
person to file and pay at less frequent intervals. Returns are
due by the twentieth day of the month following the close of the
applicable reporting period authorized under this division. (E) If a return is filed and the amount of the fee shown
to be due on the return is paid on or before the date that the
return is required to be filed under division (A) of this section
or pursuant to division (D) of this section, whichever is
applicable, the person liable for the fee is entitled to a
discount of four per cent of the amount shown to be due on the
return. Sec. 3734.907. (A) Any person required to pay the fee
imposed by section 3734.901 of the Revised Code is personally
liable for the fee. The tax commissioner may make an assessment,
based upon any information in the commissioner's possession,
against any person who fails to file a return or pay any fee,
interest, or additional charge as required by sections 3734.90 to
3734.9014 of the Revised Code. The commissioner shall give the
person assessed written notice of the assessment by personal
service or certified mail as provided in section 5703.37 of the Revised Code. (B) When the information in the possession of the tax
commissioner indicates that a person liable for the fee imposed
by section 3734.901 of the Revised Code has not paid the full
amount of fee due, the commissioner may audit a representative
sample of the person's business and may issue an assessment based
on the audit. (C) A penalty of up to fifteen per cent shall may
be added to all
amounts assessed under this section. The commissioner may adopt
rules providing for the imposition and remission of the penalties. (D) Unless the person assessed files with the tax
commissioner within thirty sixty days after service of the
notice of
assessment, either personally or by certified mail
as provided in section 5703.056 of the Revised Code, a petition
for reassessment in writing by the person assessed or the
person's authorized agent having knowledge of the facts, the assessment
becomes final and the amount of the assessment is due
and
payable from the person assessed to the treasurer of state. A
petition shall indicate the objections to the assessment of the
person assessed, but additional objections may be raised in
writing prior to the date shown on the final determination of the
person assessed, but additional objections may be raised in
writing prior to the date shown on the final determination of the
tax commissioner. The commissioner shall grant the petitioner a
hearing on the petition, unless waived by the petitioner. The commissioner may make any correction to the assessment
that the commissioner finds proper and shall issue
a final determination thereon. The commissioner shall serve a copy of
the final determination on the petitioner either by personal
service or by
certified mail, and the commissioner's decision in the
matter is final, subject to appeal under section 5717.02 of the Revised Code. (E) After an assessment becomes final, if any portion of
the assessment, including accrued interest, remains unpaid, a
certified copy of the commissioner's entry making the assessment
final may be filed in the office of the clerk of the court of
common pleas in the county in which the person assessed resides
or in which the person's business is conducted. If the
person assessed
maintains no place of business in this state and is not a
resident of this state, the certified copy of the entry may be
filed in the office of the clerk of the court of common pleas of
Franklin county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state against the person assessed in the
amount shown to be due. The judgment may be filed by the clerk
in a loose-leaf book entitled "special judgments for state tire
fee," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within thirty sixty days
after the
day the assessment was issued shall bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code
from the day
the tax commissioner issues the assessment until the day the assessment is
paid. Interest shall be paid in the same manner as the fee and may be
collected by the issuance of an assessment under this
section. (F) If the commissioner believes that collection of the
fee will be jeopardized unless proceedings to collect or secure
collection of the fee are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the fee. Upon issuance of the jeopardy assessment,
the commissioner immediately shall file an entry with the clerk
of the court of common pleas in the manner prescribed by division
(E) of this section. Notice of the jeopardy assessment shall be
served on the person assessed or the person's legal
representative, as provided in section 5703.37 of the Revised Code,
within five days of the filing of the entry with the clerk.
The total amount assessed is immediately due and payable, unless the person
assessed files a petition for reassessment in accordance with
division (D) of this section and provides security in a form
satisfactory to the commissioner and in an amount sufficient to
satisfy the unpaid balance of the assessment. Full or partial
payment of the assessment does not prejudice the commissioner's
consideration of the petition for reassessment. (G) All money collected by the commissioner under this
section shall be paid to the treasurer of state as revenue
arising from the fee imposed by section 3734.901 of the Revised
Code. Sec. 3769.088. (A) If any permit holder required by this
chapter to pay the taxes levied by sections 3769.08, 3769.087,
3769.26, and 3769.28 of the Revised Code fails to pay the
taxes, the tax commissioner may make an assessment against the
permit holder based upon any information in the commissioner's
possession. A penalty of up to fifteen per cent shall may be added to
the amount
of every assessment made under this section. The commissioner
may adopt rules providing for the imposition and remission of penalties
added to
assessments made under this section. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the party's authorized agent
having knowledge
of the facts, the assessment shall become final and
the
amount of the assessment shall be due and payable from the party
assessed to the tax commissioner. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the commissioner's
final determination on the petitioner by personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the place, track, or enclosure for which the
permit was issued is located or the county in which the party
assessed resides or has its principal place of business. If the
party assessed maintains no place of business in this state and
is not a resident of this state, the certified copy of the entry
may be filed in the office of the clerk of the court of common
pleas of Franklin county. The clerk, immediately upon the filing of such entry, shall
enter a judgment for the state against the party assessed in the
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for state
horse racing tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within
thirty sixty days after the day the assessment was issued shall
bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax
commissioner issues the assessment until the day the assessment is paid.
Interest shall be paid in the same manner as the tax
and may be collected by the issuance of an assessment under this
section. (D) All money collected by the commissioner under this
section shall be treated as revenue arising from the taxes
imposed by sections 3769.08, 3769.087, 3769.26, and 3769.28
of the Revised Code. Sec. 4301.422. (A) Any person who makes sales of beer, cider, wine, or mixed
beverages to persons for resale at retail in a
county in which a tax has been enacted
pursuant to section 4301.421 or 4301.424 of the Revised Code, and any
manufacturer, bottler, importer, or other
person who makes sales at retail in the a county upon which the
tax has not been paid, is liable for the tax. Each person liable
for the tax shall register with the tax commissioner on a form
prescribed by the commissioner and provide whatever information
the commissioner considers necessary. (B) Each person liable for the tax shall file a return and
pay the tax to the treasurer of state by the last day of the
month following the month in which the sale occurred. The return
is considered to be filed when received by the treasurer of
state. The return shall be prescribed by the commissioner, and no
person filing such a return shall fail to provide the information
specified on the return. If the return is filed and the amount
of tax shown on the return to be due is paid on or before the
date the return is required to be filed, the person required to
file the return shall receive an administrative fee of two and
one-half per cent of that person's total tax liability under
section 4301.421 of the Revised Code for the purpose of
offsetting additional costs incurred in collecting and remitting
the tax. Any person required to file a return who fails to file
timely shall may be required to forfeit and pay into the state
treasury an amount not exceeding fifty
dollars or ten per cent of the tax due, whichever is greater, as
revenue arising from the tax. That amount may be collected by
assessment in the manner specified in sections 4305.13 and
4305.131 of the Revised Code. (C) A tax levied pursuant to section 4301.421 or 4301.424
of the
Revised Code shall be administered by the tax commissioner. The
commissioner shall have all powers and authority incident to such
administration, including examination of records, audit, refund,
assessment, and seizure and forfeiture of untaxed beverages. The
procedures, rights, privileges, limitations, prohibitions,
responsibilities, and duties specified in sections 4301.48 to
4301.52, 4305.13, 4305.131, and 4307.01 to 4307.12 of the Revised
Code apply in the administration of the tax. (D) Each person required to pay the tax levied pursuant to
section 4301.421 or 4301.424 of the Revised Code who sells beer, cider, wine,
or mixed beverages for resale at retail within a county in which
the tax is levied shall clearly mark on all invoices, billings, and similar
documents the amount of tax and the name of the county in which
the tax is levied. (E) Each person required to pay the tax levied by section
4301.421 or 4301.424 of the Revised Code shall maintain complete
records of
all sales for at least three years. The records shall be open
to inspection by the tax commissioner. Sec. 4303.33. (A) Every A-1 permit holder in this state, every bottler,
importer, wholesale
dealer, broker, producer, or manufacturer of beer outside this
state and within the United States, and every B-1 permit holder
and importer importing beer from any manufacturer, bottler,
person, or group of persons however organized outside the United
States for sale or distribution for sale in this state, on
or before the eighteenth day of each month, shall make and file with
the treasurer of state upon a form prescribed by the tax
commissioner an advance tax payment in an amount estimated to
equal the taxpayer's tax liability for the month in which
the advance tax payment is made. If the advance tax payment
credits
claimed on the report are for advance tax payments received by
the treasurer of state on or before the eighteenth day of the
month covered by the report, the taxpayer is entitled to an
additional credit of three per cent of the advance tax payment
and a discount of three per cent shall be allowed the taxpayer at
the time of filing the report if filed as provided in division
(B) of this section on any amount by which the tax liability
reflected in the report exceeds the advance tax payment estimate
by not more than ten per cent. The additional three per cent
credit and three per cent discount shall be in consideration for
advancing the payment of the tax and other services performed by
the permit holder and other taxpayers in the collection of the
tax. The treasurer of state shall stamp or otherwise mark
thereon the date the advance tax payment was received by the
treasurer and
the amount of the advance tax payment, and shall transmit that
information to the tax commissioner. "Advance tax payment credit"
means credit for payments made by an A-1 or B-1 permit holder and
any other persons during the period covered by a report which was
made in anticipation of the tax liability required to be reported
on that report. "Tax liability" as used in
division (A) of this section means the total gross tax liability
of an A-1 or B-1 permit holder and any other persons for the
period covered by a report before any allowance for credits and
discount. (B) Every A-1 permit holder in
this state, every bottler, importer, wholesale dealer, broker,
producer, or manufacturer of beer outside this state and within
the United States, and every B-1 permit holder importing beer
from any manufacturer, bottler, person, or group of persons
however organized outside the United States, on or before
the tenth day of each month, shall make and file a report for the
preceding month upon a form prescribed by the tax commissioner
which report shall show the amount of beer produced, sold, and
distributed for sale in this state by the A-1 permit holder,
sold and distributed for sale in this state by each manufacturer,
bottler, importer, wholesale dealer, or broker outside this state
and within the United States, and the amount of beer imported
into this state from outside the United States and sold and
distributed for sale in this state by the B-1 permit holder or
importer. The report shall be filed by
mailing it to the treasurer of state, together with payment
of the tax levied by sections 4301.42 and 4305.01 of the Revised
Code shown to be due on the report after deduction of
advance payment
credits and any additional credits or discounts provided for
under this section. The treasurer of state shall stamp or
otherwise mark on each report the date it was received by the
treasurer, the amount of the tax payment accompanying the report, and
shall
transmit the report to the tax commissioner. (C) Every A-2 and A-4, B-2, B-3,
B-4, and B-5 permit holder in this state, on or before the
eighteenth day of each month, shall make and file a report with the
treasurer of state upon a form prescribed by the tax commissioner
which report shall show, on the report of each A-2 and A-4 permit
holder the amount of wine, cider, and mixed beverages produced
and sold, or sold in this state by each such A-2 and A-4 permit holder for
the next preceding calendar month and such other information as
the tax commissioner requires, and on the report of each such
B-2, B-3, B-4, and B-5 permit holder the amount of wine, cider,
and mixed
beverages purchased from an importer, broker, wholesale dealer,
producer, or manufacturer located outside this state and sold and
distributed in this state by such B-2, B-3, B-4, and B-5 permit
holder, for the next preceding calendar month and such other
information as the tax commissioner requires. Every such A-2, A-4, B-2, B-3,
B-4, and B-5 permit holder in this state shall remit with the
report the tax levied by sections 4301.43 and, if
applicable, 4301.432 of the
Revised Code less a discount thereon of three per cent of the
total tax so levied and paid, provided the return is filed
together with remittance of the amount of tax shown to be due
thereon, within the time prescribed. The treasurer of state
shall stamp or otherwise mark on all reports the date it was
received by the treasurer and the amount of tax payment
accompanying all
reports and shall transmit the return to the commissioner. Any
permit holder or other persons who fail to file a report under
this section, for each day the person so fails, shall may be
required to forfeit and pay
into the state treasury the sum of one dollar as revenue arising
from the tax imposed by sections 4301.42, 4301.43, 4301.432, and
4305.01 of the Revised Code, and that sum may be collected by
assessment in the manner provided in section 4305.13 of the
Revised Code. (D) Every B-1 permit holder and
importer in this state importing beer from any manufacturer,
bottler, person, or group of persons however organized, outside
the United States, if required by the tax commissioner shall post
a bond payable to the state in such form and amount as the
commissioner prescribes with surety to the satisfaction of the
tax commissioner, conditioned upon the payment to the treasurer
of state of taxes levied by sections 4301.42 and 4305.01 of the
Revised Code. (E) No such wine, beer, cider, or mixed beverages sold or distributed
in this state shall be taxed more
than once under sections 4301.42, 4301.43, and 4305.01 of the
Revised Code. (F) As used in this section: (1) "Cider" has the same meaning as in section 4301.01 of the Revised Code. (2) "Wine" has the same meaning as in section 4301.01
of the Revised Code, except that
"wine" does not include cider. Sec. 4305.13. (A) If the tax commissioner finds that any
permit holder, liable for tax under Chapter 4301., 4305., or
4307. of the Revised Code, is about to depart from the state,
remove the permit holder's property from the state, conceal
the permit holder's self or
property, or do any other act tending to prejudice, obstruct, or
render wholly or partially ineffectual proceedings to collect the
tax, unless the proceedings are commenced without delay, or if
the commissioner believes that the collection of the amount due
from any permit holder will be jeopardized by delay, the
commissioner may issue a jeopardy assessment against the permit
holder for the amount of the tax, plus a penalty of up to thirty per
cent. Upon issuance of a jeopardy assessment under this
division, the total amount assessed shall immediately be due and
payable unless security is provided pursuant to division (C) of
this section. Any assessment issued under this section shall
bear interest as prescribed by section
4305.131 of the
Revised Code. (B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 4305.131 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the permit holder assessed or the permit holder's legal
representative, as provided in section 5703.37 of the Revised Code,
within
five days of the filing of the entry. The permit holder assessed
may petition for reassessment within thirty sixty days of
receipt
of the notice of jeopardy assessment in the same manner as
provided in section 4305.131 of the Revised Code. Full or
partial payment of the assessment shall not prejudice the
commissioner's consideration of the merits of the assessment as
contested by the petition for reassessment. Upon notification of
the existence of the judgment filed pursuant to this division,
any public official having control or custody of any funds or
property of the person assessed immediately shall pay or deliver
the funds or property to the commissioner as full or partial
satisfaction of the jeopardy assessment. However, funds or
property needed as evidence in criminal proceedings or that is
expected to be forfeited pursuant to section 2923.35, 2933.41, or
2933.43 of the Revised Code need not be relinquished by the
public official. Upon disposition of criminal and forfeiture
proceedings, funds and property not needed as evidence and not
forfeited shall be delivered to the commissioner. (C) If the permit holder subject to a jeopardy assessment
files a petition for reassessment and posts security satisfactory
to the commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the permit
holder previously seized. Upon satisfaction of the assessment
the commissioner shall order the security released and the
judgment vacated. (D) The commissioner may adopt rules providing for the imposition
and remission of penalties added to assessments under this section. Sec. 4305.131. (A) If any permit holder fails to pay the
taxes levied in section 4301.42, 4301.43, 4301.432, or 4305.01 of
the Revised Code in the manner prescribed by section 4303.33 of
the Revised Code, or in section 4301.421 or 4301.424 of the Revised
Code in the manner prescribed in section 4301.422 of the Revised Code,
and by the rules of the tax commissioner, the commissioner may
make an assessment against the permit holder based upon any
information in the commissioner's possession. No assessment shall be made against any permit holder for
any taxes imposed by section 4301.42, 4301.421, 4301.424, 4301.43,
4301.432, or 4305.01 of the Revised Code more than three years
after the last day of the calendar month in which the sale was
made or more than three years after the return for that period is
filed, whichever is later. This section does not bar an
assessment against any permit holder or registrant as provided in
section 4303.331 of the Revised Code who fails to file a return
as required by section 4301.422 or 4303.33 of the Revised Code,
or who files a fraudulent return. A penalty of up to thirty per cent shall may be added to
the amount
of every assessment made under this section. The commissioner
may adopt rules providing for the imposition and remission of penalties
added to
assessments made under this section. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail
as provided in section 5703.056 of the Revised Code, a petition for reassessment in
writing, signed by
the party assessed, or by that party's authorized agent
having knowledge
of the facts, the assessment shall become final and
the
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the final determination on the petitioner by
personal service or certified mail, and the commissioner's
decision in the matter shall be final, subject to appeal as provided in
section 5717.02 of the Revised Code. Only objections decided on the merits by
the board of tax appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of amounts paid
pursuant to the assessment. (C) After an assessment becomes final, if any portion of the assessment
remains unpaid, including accrued interest, a certified copy of
the commissioner's entry making the
assessment final may be filed in the office of the clerk of the court of
common pleas in the county in which the permit holder's place of business is
located or the county in which the party assessed resides. If the party
assessed maintains no place of business in this state and is not
a resident of this state, the certified copy of the entry may be
filed in the office of the clerk of the court of common pleas of
Franklin county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state against the party assessed in the
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for state
beer and liquor sales taxes," and shall have the same
effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment
except as otherwise provided in this chapter and
Chapters 4301. and 4307. of the
Revised Code. The portion of the assessment not paid within
thirty sixty days after the day the assessment was issued shall
bear
interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code
from
the day the tax commissioner issues the assessment until it is paid.
Interest shall be paid in the same manner as the tax
and may be collected by the issuance of an assessment under this
section. (D) All money collected under this section shall be
considered as revenue arising from the taxes imposed by sections
4301.42, 4301.421, 4301.424, 4301.43, 4301.432, and 4305.01 of the
Revised Code. Sec. 5703.05. All powers, duties, and functions of the
department of taxation are vested in and shall be performed by
the tax commissioner, which powers, duties, and functions shall
include, but shall not be limited to, the following: (A) Prescribing all blank forms which the department is
authorized to prescribe, and to provide such forms and distribute
the same as required by law and the rules of the department. The tax
commissioner shall include a mail-in registration form prescribed in section
3503.14 of the Revised Code within the return and instructions for the tax
levied in odd-numbered years under section 5747.02 of the Revised Code,
beginning with the tax levied for 1995. The secretary of state
shall bear all
costs for the inclusion of the mail-in registration form. That form
shall be addressed for return to the office of the secretary of state. (B) Exercising the authority provided by law, including orders from
bankruptcy courts, relative to
remitting or refunding taxes or assessments, including penalties
and interest thereon, illegally or erroneously assessed or
collected, or for any other reason overpaid, and in addition, the
commissioner may on written application of any person, firm, or
corporation claiming to have overpaid to the treasurer of state
at any time within five years prior to the making of such
application any tax payable under any law which the department of
taxation is required to administer which does not contain any
provision for refund, or on the commissioner's own motion
investigate the facts and make in triplicate a written statement of
the commissioner's findings, and, if the commissioner
finds that there has been an overpayment, issue in triplicate a certificate of
abatement payable to the taxpayer, the taxpayer's assigns,
or legal representative which shows the amount of
the overpayment and the kind of tax overpaid. One copy of such
statement shall be entered on the journal of the commissioner, one shall be
certified to the attorney general, and one certified
copy shall be delivered to the taxpayer. All copies of the
certificate of abatement shall be transmitted to the attorney
general, and if the attorney general finds it to be correct
the attorney general shall so certify on each copy, and
deliver one copy to the taxpayer, one copy to the commissioner, and the third
copy to the treasurer of state. Except as provided in sections 5725.08 and
5725.16 of the Revised
Code the taxpayer's copy of any certificates of abatement may be
tendered by the payee or transferee thereof to the treasurer of
state as payment, to the extent of the amount thereof, of any tax
payable to the treasurer of state. (C) Exercising the authority provided by law relative to
consenting to the compromise and settlement of tax claims; (D) Exercising the authority provided by law relative to
the use of alternative tax bases by taxpayers in the making of
personal property tax returns; (E) Exercising the authority provided by law relative to
authorizing the prepayment of taxes on retail sales of tangible
personal property or on the storage, use, or consumption of
personal property, and waiving the collection of such taxes from
the consumers; (F) Exercising the authority provided by law to revoke
licenses; (G) Maintaining a continuous study of the practical
operation of all taxation and revenue laws of the state, the
manner in which and extent to which such laws provide revenues
for the support of the state and its political subdivisions, the
probable effect upon such revenue of possible changes in existing
laws, and the possible enactment of measures providing for other
forms of taxation. For this purpose the commissioner may
establish and maintain a division of research and statistics, and
may appoint necessary employees who shall be in the unclassified
civil service; the results of such study shall be available to
the members of the general assembly and the public. (H) Making all tax assessments, valuations, findings,
determinations, computations, and orders the department of
taxation is by law authorized and required to make and, pursuant
to time limitations provided by law, on the commissioner's
own motion, reviewing, redetermining, or correcting any tax assessments,
valuations, findings, determinations, computations, or orders the
commissioner has made, but the commissioner shall not
review, redetermine, or correct any tax assessment, valuation, finding,
determination, computation, or order which the commissioner
has made as to which an appeal or application
for rehearing, review, redetermination, or correction has been
filed with the board of tax appeals, unless such appeal or
application is withdrawn by the appellant or applicant or
dismissed; (I) Appointing not more than five deputy tax
commissioners, who, under such regulations as the rules of the
department of taxation prescribe, may act for the commissioner in
the performance of such duties as the commissioner prescribes
in the administration of the laws which the commissioner is
authorized and required to administer, and who shall serve in the unclassified
civil service at the pleasure of the commissioner, but if a person who holds a
position in the classified service is appointed, it shall not
affect the civil service status of such person;. The
commissioner may designate not more than two of the deputy commissioners to
act as commissioner in case of the absence, disability, or recusal of the
commissioner or vacancy in the office of commissioner. The commissioner may
adopt rules
relating to the order of precedence of such designated deputy commissioners
and to their assumption and administration of the office of commissioner. (J) Appointing and prescribing the duties of all other
employees of the department of taxation necessary in the
performance of the work of the department which the tax
commissioner is by law authorized and required to perform, and
creating such divisions or sections of employees as, in the
commissioner's judgment, is proper; (K) Organizing the work of the department, which the
commissioner is by law authorized and required to perform, so that, in
the commissioner's judgment, an efficient and economical
administration of the laws will result; (L) Maintaining a journal, which is open to public
inspection, in which the commissioner shall keep a record of
all actions taken by the commissioner relating to
assessments and the reasons therefor; (M) Adopting and promulgating, in the manner provided by
section 5703.14 of the Revised Code, all rules of the department,
including rules for the administration of sections 3517.16,
3517.17, and 5747.081 of the Revised Code; (N) Destroying any or all returns or assessment
certificates in the manner authorized by law; (O) Adopting rules, in accordance with division (B) of
section 325.31 of the Revised Code, governing the expenditure of
moneys from the real estate assessment fund under that division. Sec. 5703.054. The tax commissioner shall prescribe the form that
the signature and declaration, if any, shall take on any document
required to be filed with the commissioner and on any document required
under Chapter 3734., 3769., 4303., or 4305. or Title
LVII of the
Revised Code to be filed with the
treasurer of state. The commissioner may authorize an electronic or other
alternative form of
filing of any document required to be filed with the commissioner or the
treasurer of state under Chapter 3734., 3769., 4303., or
4305. or Title LVII of the Revised
Code. Sec. 5703.055. A person may, and if required by the tax
commissioner shall, round to the nearest whole dollar all amounts the
person is required to enter on any return, report, voucher, or other
document. Any fractional part of a dollar that equals or exceeds fifty
cents shall be rounded to the next whole dollar, and any
fractional part of a dollar that is less than fifty cents shall be
dropped. If a person chooses or is required to round amounts
entered on the document, the person shall round all amounts
entered. Sec. 5703.056. (A) As used in any section of the
Revised
Code
that requires or permits a payment to be made or document to be submitted
to the tax commissioner or the board of tax appeals by mail and As used
in any section of Chapter 3734., 3769., 4303., or 4305. or
Title lvii of the Revised Code that
requires or
permits a payment to be made or document to be submitted to the treasurer
of state by mail: (1) "Certified mail," "express mail," "United States
mail,"
"United States Postal
Service," and similar terms include any delivery service
authorized pursuant to division (B) of this section. (2) "Postmark date," "date of postmark," and similar terms
include the date recorded and marked in the manner described in division
(B)(3) of this section. (B) The tax commissioner may authorize the use of a delivery
service for the delivery of any payment or document described in
division (A) of this section if the commissioner finds that the
delivery service: (1) Is available to the general public; (2) is at least as timely and reliable on a regular basis as the
United States postal
service; (3) Records electronically to a database kept in the regular
course of its business, and marks on the cover in which the payment or
document is enclosed, the date on which the payment or document was
given to the delivery service for delivery; (4) Records electronically to a database kept in the regular
course of its business the date on which the payment or document was
given by the delivery service to the person who signed the receipt
of delivery and the name of the person who signed the receipt; and (5) meets any other criteria that the tax commissioner may by
rule prescribe. Sec. 5703.11. The department of taxation shall be in continuous session
and
open for the transaction of business during the business hours of every day,
except Saturdays, Sundays, and legal holidays.
All sessions shall be open to the public,
and sessions of the department shall stand and be adjourned without further
notice thereof on its records. All of the proceedings of the department shall be shown on its record of
proceedings, which shall be a public record, and all voting shall be by
calling each member's name by the secretary, and each member's vote shall be
recorded on the record of proceedings as cast.
Sec. 5703.37. Every Except as otherwise provided by section
5711.28, 5711.31, 5727.47, or 5731.27 of the Revised Code, a certified copy of every
order or
notice, service of which is required, shall be
served upon the person or corporation affected thereby either by
personal
delivery of a certified copy or by mailing a certified copy
by registered mail
to the person affected thereby, or in case of a corporation, to any officer
or
agent upon whom a summons may be served. Within the time specified in the
order of the department of taxation every person or corporation upon
whom it
is served, if required by the order, shall notify the department, in like
manner, whether the terms of the order are accepted and will be obeyed. Sec. 5705.37. The taxing authority of any subdivision that
is dissatisfied with any action of the county budget commission
may, through its fiscal officer, appeal to the board of tax
appeals within thirty days after the receipt by the subdivision
of the official certificate or notice of the commission's action.
In like manner, but through its clerk, the board of trustees of
any public library, nonprofit corporation, or library association
maintaining a free public library that has adopted and certified
rules under section 5705.28 of the Revised Code, or any park
district may appeal to the board of tax appeals. An appeal under
this section shall be taken by the filing of a notice of appeal,
either in person or by certified mail, express mail, or authorized delivery
service as provided in section 5703.056 of the Revised Code, with the board
and with
the commission. If notice of appeal is filed by certified mail,
express mail, or authorized delivery service, date of the United
States postmark placed on the sender's
receipt by the postal employee to whom the notice of appeal is
presented service or the date of receipt recorded by the authorized
delivery service shall be treated as the date of filing. Upon receipt
of the notice of appeal, the commission, by certified mail, shall
notify all persons who were parties to the proceeding before the
commission of the filing of the notice of appeal and shall file
proof of notice with the board of tax appeals. The secretary of
the commission shall forthwith certify to the board a transcript
of the full and accurate record of all proceedings before the
commission, together with all evidence presented in the
proceedings or considered by the commission, pertaining to the
action from which the appeal is taken. The secretary of the
commission also shall certify to the board any additional
information that the board may request. The board of tax appeals, in a de novo proceeding, shall
forthwith consider the matter presented to the commission, and
may modify any action of the commission with reference to the
budget, the estimate of revenues and balances, the allocation of
the library and local government support fund, or the fixing of
tax rates. The finding of the board of tax appeals shall be
substituted for the findings of the commission, and shall be
certified to the tax commissioner, the county auditor, and the
taxing authority of the subdivision affected, or to the board of
public library trustees affected, as the action of the commission
under sections 5705.01 to 5705.47 of the Revised Code. This section does not give the board of tax appeals any
authority to place any tax levy authorized by law within the
ten-mill limitation outside of that limitation, or to reduce any
levy below any minimum fixed by law. Sec. 5711.04. Returns (A) Except as otherwise provided in
division (B) of the section, returns shall be made, annually,
between the
fifteenth day of February and the thirtieth day of April; but
when a person or taxpayer engages in business in this state after
the first day of January in any year he shall make a return
within ninety days of commencing such business Upon verified
application of any taxpayer, and for good cause shown, the county
auditor may extend the time within which such taxpayer may make
his a return for a further specified period, not exceeding
forty-five days to the fifteenth day of June If the
county auditor fails to allow, in whole,
a timely application of the taxpayer for an extension of time for
filing his a return, the taxpayer, upon payment on or before the
thirtieth day of April of an amount equal to one-half of his the
taxpayer's tax
for the next preceding year, shall make his a return on or
before
the fifteenth day of June. The (B) When a taxpayer first engages in business in this state after
the first day of January in any year, the taxpayer shall make a
return within ninety days of commencing such business. Upon verified
application of the taxpayer, and for good cause shown, the county auditor may
extend the time within which the taxpayer may make the return for a further
specified period not exceeding forty-five days. (C) The county auditor shall certify any
extension of time acquired by the taxpayer to the tax
commissioner, and the commissioner shall have the same power as
to a taxpayer who is required to make return to him the
commissioner. Sec. 5711.18. In the case of accounts receivable, the book
value thereof less book reserves shall be listed and shall be
taken as the true value thereof unless the assessor finds that
such net book value is greater or less than the then true value
of such accounts receivable in money. In the case of personal
property used in business, the book value thereof less book
depreciation at such time shall be listed, and such depreciated
book value shall be taken as the true value of such property,
unless the assessor finds that such depreciated book value is
greater or less than the then true value of such property in
money. Claim for any deduction from net book value of accounts
receivable or depreciated book value of personal property must be
made in writing by the taxpayer at the time of making his the
taxpayer's return;
and when such return is made to the county auditor who is
required by sections 5711.01 to 5711.36, inclusive, of the
Revised Code, to transmit it to the tax commissioner for
assessment, the auditor shall, as deputy of the commissioner,
investigate such claim and shall enter thereon, or attach
thereto, in such form as the commissioner prescribes, his the
auditor's
findings and recommendations with respect thereto; when such
return is made to the commissioner, such claim for deduction from
depreciated book value of personal property shall be referred to
the auditor, as such deputy, of each county in which the property
affected thereby is listed for investigation and report. Any change in the method of determining true value, as prescribed by the
tax commissioner
on a prospective basis, shall not be admissible in any judicial or
administrative action or proceeding as evidence of value with regard to prior
years' taxes. Information about the business, property, or transactions of
any taxpayer
obtained by the commissioner for the purpose of adopting or modifying any such
method shall not be subject to discovery or disclosure. Sec. 5711.25. On or before the second Monday of August,
annually, the tax commissioner shall transmit to the county
auditor of each county the preliminary assessment certificates
pertaining to his the auditor's county of taxpayers having
taxable property in
more than one county. The commissioner shall transmit to the
auditor any amended assessment certificate issued by him the
commissioner, and the
auditor shall transmit to the commissioner copies of all amended
assessment certificates made and issued by him the auditor.
Each preliminary
assessment certificate, and if amended such preliminary
assessment certificate as last amended, shall become final on the
second Monday of August of the second year after the filing of a
return with the county auditor or after the certification of the
preliminary assessment certificate, or thirty sixty days after
the
certification of an amended assessment certificate which has been
issued less than thirty sixty days prior to such second Monday
of
August; unless prior to the expiration of said period or extended
period one of the following occurred: (A) A final assessment certificate as to the taxpayer
represented thereby has been issued pursuant to section 5711.26
of the Revised Code; (B) Such taxpayer in writing has waived such time
limitation and consented to the issuance of his the taxpayer's
assessment
certificate after the expiration of such time limitation, in
which case the assessment certificate issued after the expiration
of such time limitation, if an amended preliminary assessment
certificate, shall become final thirty sixty days after the
mailing of
the notice of such assessment if no petition for reassessment of
the assessment has been filed pursuant to section 5711.31 of the
Revised Code; (C) A petition for reassessment of the assessment
represented thereby has been filed pursuant to section 5711.31 of
the Revised Code, in which event the filing of such petition
shall waive such time limitation and be a consent to the issuance
of the petitioner's final assessment certificate at the time,
under the circumstances, and by the authority provided by any law
relating to further administrative or judicial review of the
assessment represented thereby; provided that in the event of the
dismissal of such petition by the petitioner, the assessment
shall become final as provided in this section as though no
petition for reassessment had been filed. This section does not
deprive any taxpayer who has not received the notice prescribed
by section 5711.31 of the Revised Code at least thirty sixty
days prior
to the expiration of such period of limitation of the right to
file such petition for reassessment. This section shall apply to
all assessments made and certified under sections 5711.01 to
5711.36, 5725.08, and 5725.16 of the Revised Code. The assessment certificates and copies thereof mentioned in
this section shall not be open to public inspection. Sec. 5711.28. Whenever the assessor imposes a penalty
prescribed by section 5711.27 of the Revised Code, he the
assessor shall send
notice of such penalty assessment to the taxpayer by mail. If
the notice also reflects the assessment of any property not
listed in or omitted from a return, or the assessment of any item
or class of taxable property listed in a return by the taxpayer
in excess of the value or amount thereof as so listed, or without
allowing a claim duly made for deduction from the net book value
of accounts receivable, or depreciated book value of personal
property used in business, so listed, and the taxpayer objects to
one or more of such corrections in addition to the penalty, he the
taxpayer
shall proceed as prescribed by section 5711.31 of the Revised
Code, but if no such correction is reflected in the notice, or if
the taxpayer does not object to any such correction made, he
shall proceed as prescribed herein. Within thirty sixty days after the mailing of the notice of a
penalty assessment prescribed by this section, the taxpayer may
file with the tax commissioner, in person or by certified mail, a
petition for abatement of such penalty assessment. If the
petition is filed by certified mail, the date of the United
States postmark placed on the sender's receipt by the postal
employee to whom the petition is presented shall be treated as
the date of filing. The petition shall have attached thereto and
incorporated therein by reference a true copy of the notice of
assessment complained of, BUT THE FAILURE TO ATTACH A copy of
such notice and incorporate it by reference does not invalidate
the petition. The petition shall also indicate that the
taxpayer's only objection is to the assessed penalty and the
reason for such objection. Upon the filing of a petition for abatement of penalty, the
commissioner shall notify the treasurer of state or the auditor
and treasurer of each county having any part of the penalty
assessment entered on the tax list or duplicate. The
commissioner shall review the petition without the need for
hearing. If it appears that the failure of the taxpayer to
timely return or list was due to reasonable cause and not willful
neglect, the commissioner may abate in whole or in part the
penalty assessment. The commissioner shall transmit a
certificate of his the commissioner's determination to the
taxpayer, and if no
appeal is taken therefrom as provided by law, or upon the final
determination of an appeal which may be taken, he the
commissioner shall notify
the treasurer of state or the proper county auditor of such final
determination. If the final determination orders abatement of
the penalty assessment, the notification may be in the form of an
amended assessment certificate. Upon receipt of the
notification, the treasurer of state or county auditor shall make
any corrections to his the treasurer's or auditor's records and
tax lists and duplicates
required in accordance therewith and proceed as prescribed by
section 5711.32 or 5725.22 of the Revised Code. The decision of the commissioner shall be final with
respect to the percentage of penalty, if any, he the
commissioner
finds
appropriate for the failure to return timely or list the
property, but neither his the commissioner's decision nor a
final judgment of the
board of tax appeals or any court to which such final
determination may be appealed shall finalize the assessment of
such property. Sec. 5711.31. Whenever the assessor assesses any property
not listed in or omitted from a return, or whenever the assessor
assesses any item or class of taxable property listed in a return
by the taxpayer in excess of the value or amount thereof as so
listed, or without allowing a claim duly made for deduction from
the net book value of accounts receivable, or depreciated book
value of personal property used in business, so listed, the
assessor shall give notice of such assessment to the taxpayer by
mail. The mailing of such notice of assessment shall be
prima-facie evidence of the receipt of the same by the person to
whom such notice is addressed. Within thirty sixty days after the mailing of the notice of
assessment prescribed in this section, the party assessed may
file with the tax commissioner, in person or by certified mail, a
petition for reassessment in writing, signed by the party
assessed, or by his the party's authorized agent having
knowledge of the
facts. If the petition is filed by certified mail, the date of
the United States postmark placed on the sender's receipt by the
postal employee to whom the petition is presented shall be
treated as the date of filing. The petition shall have attached
thereto and incorporated therein by reference a true copy of the
notice of assessment complained of, but the failure to attach a
copy of such notice and incorporate it by reference does not
invalidate the petition. The petition also shall indicate the
objections of the party assessed, but additional objections may
be raised in writing if received prior to the date shown on the
final determination by the commissioner. Upon receipt of a properly filed petition, the commissioner
shall notify the treasurer of state or the auditor and treasurer
of each county having any part of the assessment entered on the
tax list or duplicate. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the
assessment, as he the commissioner finds proper. The
commissioner shall serve a
copy of his the commissioner's final determination on the
petitioner by personal
service or by certified mail, and his the commissioner's
decision in the matter
shall be final, subject to appeal as provided in section 5717.02
of the Revised Code. The commissioner also shall transmit a copy
of his the commissioner's final determination to the treasurer
of state or
applicable county auditor. In the absence of any further appeal,
or when a decision of the board of tax appeals or of any court to
which the decision has been appealed becomes final, the
commissioner shall notify the treasurer of state or the proper
county auditor of such final determination. If the final
determination orders correction of the assessment, the
notification may be in the form of a corrected assessment
certificate. Upon receipt of the notification, the treasurer of
state or the proper county auditor shall make any corrections to
his the treasurer's or auditor's records and tax lists and
duplicates required in accordance
therewith and proceed as prescribed by section 5711.32 or 5725.22
of the Revised Code. The decision of the commissioner upon such petition for
reassessment shall be final with respect to the assessment of all
taxable property listed in the return of the taxpayer and shall
constitute to that extent the final determination of the
commissioner with respect to such assessment. Neither this
section nor a final judgment of the board of tax appeals or any
court to which such final determination may be appealed shall
preclude the subsequent assessment in the manner authorized by
law of any taxable property which such taxpayer failed to list in
such return, or which the assessor has not theretofore assessed. As used in this section, "taxpayer" includes financial
institutions, dealers in intangibles, and domestic insurance
companies as defined in section 5725.01 of the Revised Code. Sec. 5717.01. An appeal from a decision of a county board
of revision may be taken to the board of tax appeals within
thirty days after notice of the decision of the county board of
revision is mailed as provided in section 5715.20 of the Revised
Code. Such an appeal may be taken by the county auditor, the tax
commissioner, or any board, legislative authority, public
official, or taxpayer authorized by section 5715.19 of the
Revised Code to file complaints against valuations or assessments
with the auditor. Such appeal shall be taken by the filing of a
notice of appeal, either in person or by certified mail, express
mail, or authorized delivery service, with the
board of tax appeals and with the county board of revision. If
notice of appeal is filed by certified mail, express mail, or authorized
delivery service
as provided in section 5703.056 of the Revised Code, the date of the
United States postmark placed on the sender's receipt by the
postal employee to whom the notice of appeal is presented service or
the date of receipt recorded by the authorized delivery service shall
be treated as the date of filing. Upon receipt of such notice of
appeal such county board of revision shall by certified mail
notify all persons thereof who were parties to the proceeding
before such county board of revision, and shall file proof of
such notice with the board of tax appeals. The county board of
revision shall thereupon certify to the board of tax appeals a
transcript of the record of the proceedings of the county board
of revision pertaining to the original complaint, and all
evidence offered in connection therewith. Such appeal may be
heard by the board of tax appeals at its offices in Columbus or
in the county where the property is listed for taxation, or the
board of tax appeals may cause its examiners to conduct such
hearing and to report to it their findings for affirmation or
rejection. The board of tax appeals may order the appeal to be heard
on the record and the evidence certified to it by the county
board of revision, or it may order the hearing of additional
evidence, and it may make such investigation concerning the
appeal as it deems proper. Sec. 5717.02. Except as otherwise provided by law, appeals
from final determinations by the tax commissioner of any
preliminary, amended, or final tax assessments, reassessments,
valuations, determinations, findings, computations, or orders
made by the commissioner may be taken to the board of tax appeals
by the taxpayer, by the person to whom notice of the tax
assessment, reassessment, valuation, determination, finding,
computation, or order by the commissioner is required by law to
be given, by the director of budget and management if the
revenues affected by such decision would accrue primarily to the
state treasury, or by the county auditors of the counties to the
undivided general tax funds of which the revenues affected by
such decision would primarily accrue. Appeals from the
redetermination by the director of development under division (B)
of section 5709.64 or division (A) of section 5709.66 of the Revised Code may
be taken to the board
of tax appeals by the enterprise to which notice of the
redetermination is required by law to be given. Appeals from a
decision of the tax commissioner concerning an application for a
property tax exemption may be taken to the board of tax appeals
by a school district that filed a statement concerning such
application under division (C) of section 5715.27 of the Revised
Code. Such appeals shall be taken by the filing of a notice of
appeal with the board, and with the tax commissioner if his the tax
commissioner's action is the subject of the appeal or with the director of
development if his the director's action is the subject of the
appeal, within thirty sixty days after service of the
notice of the tax
assessment, reassessment,
valuation, determination, finding, computation, or order by the
commissioner or redetermination by the director has been given or
otherwise evidenced as required by law as provided in section 5703.37
of the Revised Code. The notice of such
appeal may be filed in person or by certified mail, express mail, or
authorized delivery service. If the
notice of such appeal is filed by certified mail, express mail, or
authorized delivery service
as provided in section 5703.056 of the Revised Code, the date of the
United States postmark placed on the sender's receipt by the
postal employee to whom the notice of appeal is presented service of
the date of receipt recorded by the authorized delivery service shall
be treated as the date of filing. The notice of appeal shall
have attached thereto and incorporated therein by reference a
true copy of the notice sent by the commissioner or director to
the taxpayer or enterprise of the final determination or
redetermination complained of, and shall also specify the errors
therein complained of, but failure to attach a copy of such
notice and incorporate it by reference in the notice of appeal
does not invalidate the appeal. Upon the filing of a notice of appeal, the tax commissioner
or the director, as appropriate, shall certify to the board a
transcript of the record of the proceedings before him the
commissioner or director, together with all evidence considered by
him the commissioner or director in connection therewith. Such
appeals or applications may be heard by the board at its office in Columbus or
in the county where the appellant resides, or it may cause its examiners to
conduct such hearings and to
report to it their findings for affirmation or rejection. The
board may order the appeal to be heard upon the record and the
evidence certified to it by the commissioner or director, but
upon the application of any interested party the board shall
order the hearing of additional evidence, and it may make such
investigation concerning the appeal as it considers proper. Sec. 5727.11. (A) Except as otherwise provided in this section, the true
value of all taxable property required
by division (A)(2) or (3) of section 5727.06 of the Revised Code to be
assessed by the tax commissioner shall be determined by a method
of valuation using cost as capitalized on the public utility's
books and records less composite annual allowances as prescribed
by the commissioner. If the commissioner finds that application
of this method will not result in the determination of true value
of the public utility's taxable property, the commissioner
may use another method of valuation. (B) The true value of current gas stored underground is
the cost of that gas shown on the books and records of the public
utility on the thirty-first day of December of the preceding
year. (C) The true value of noncurrent gas stored underground is
thirty-five per cent of the cost of that gas shown on the books
and records of the public utility on the thirty-first day of
December of the preceding year. (D)(1) Except as provided in division
(D)(2) of this section, the true value of the production
equipment of an
electric company and the true value of all taxable property of a
rural electric company is the equipment's or property's cost as
capitalized on the company's books and records less fifty per
cent of that cost as an allowance for depreciation and
obsolescence. (2) The true value of the production equipment of an
electric company or rural electric company purchased, transferred, or placed
into service
after the effective date of this
amendment is the purchase price of the equipment as capitalized on
the company's books and records less composite annual allowances
as prescribed by the tax commissioner. (E) The true value of taxable property described in
division (A)(2) or (3) of section 5727.06 of the Revised Code shall not
include the allowance for funds used during construction or
interest during construction that has been capitalized on
the
public utility's books and records as part of the total cost of
the taxable property. This division shall not apply to the taxable
property of an electric company or a rural electric company, excluding
transmission and distribution property, first placed into service after
December 31, 2000, or to the taxable property a person purchases,
which includes transfers, if that property was used in business by the seller
prior to the purchase. (F) The true value of watercraft owned or operated by a
water transportation
company shall be determined by multiplying the true value of the watercraft as
determined under division (A) of this section by a
fraction, the numerator of
which is the number of revenue-earning miles traveled by the watercraft in the
waters of this state and the denominator of which is the number of
revenue-earning miles traveled by the watercraft in all waters. (G) The cost of property subject to a sale and leaseback
transaction is the cost of the property as capitalized on the books and
records of the public utility owning the
property immediately prior to the sale and leaseback transaction. (H) The cost as capitalized on the books and records of a public
utility includes amounts capitalized that represent regulatory assets, if such
amounts previously were included on the company's books and records as
capitalized costs of taxable personal property. (I) Any change in the composite annual allowances as prescribed
by the commissioner on a prospective basis shall not be admissible in any
judicial or administrative action or proceeding as evidence of value with
regard to prior years' taxes. Information about the business, property, or
transactions of any taxpayer obtained by the commissioner for the purpose of
adopting or modifying the composite annual allowances shall not be subject to
discovery or disclosure. Sec. 5727.26. (A) The tax commissioner may make an assessment,
based on any information in the commissioner's possession, against any natural
gas company or combined electric and gas company that fails to file a return
or pay any tax, interest, or additional charge as required by sections 5727.24
to 5727.29 of the Revised Code. The
commissioner shall give the company assessed written notice of the assessment
by personal service or certified mail as provided in section 5703.37
of the Revised Code. A penalty of
up to fifteen per cent may be added to all amounts assessed under
this section. The tax commissioner may adopt rules providing for
the imposition and remission of the penalty. (B) If a party to whom the notice of assessment is directed
objects to the assessment, the party may file a petition for reassessment with
the tax commissioner. The petition must be made
in writing, signed by the party or the party's authorized agent
having knowledge of the facts, and filed with the commissioner,
either personally or by certified mail, within thirty sixty days
after
service of the notice of assessment. The petition shall indicate
the objections of the company assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination of the commissioner. Upon receipt of a
properly filed petition, the commissioner shall notify the
treasurer of state. Unless the petitioner waives a hearing, the commissioner shall
grant the petitioner a hearing on the petition, assign a time and place
for the hearing, and notify the petitioner of the time and place of the
hearing, by personal service or certified mail as provided in
section 5703.37 of the Revised Code. The commissioner
may continue the hearing from time to time, if necessary. If the party to whom the notice of assessment is directed does not
file a petition for reassessment, the assessment is final and the amount
of the assessment is due and payable from the company assessed to the
treasurer of state. (C) The tax commissioner may make any correction to the
assessment that the commissioner finds proper and shall issue a
final determination thereon. The commissioner shall serve a copy
of the final determination on the petitioner either by personal
service or certified mail as provided in section 5703.37 of the Revised Code, and
the commissioner's decision in the
matter is final, subject to appeal under section 5717.02 of the
Revised Code. The commissioner
also shall transmit a copy of the final determination to the treasurer of
state. Only objections
decided on the merits by the board of tax appeals or a court shall be given
collateral estoppel or
res judicata effect in considering an application for refund of an
amount paid pursuant to the assessment. (D) After an assessment becomes final, if any portion of the
assessment, including accrued interest, remains unpaid, a certified copy of
the tax commissioner's entry making the assessment final
may be filed in the office of the clerk of the court of common
pleas in the county in which the natural gas company's or combined
electric and gas company's principal place of business is located,
or in the office of the clerk of court of common pleas of Franklin
county. The clerk, immediately on the filing of the entry, must enter
judgment for the state against the company assessed in the amount shown
on the entry. The judgment may be filed by the clerk in a loose-leaf
book entitled, "special judgments for the public utility excise
tax on natural gas and combined electric and gas companies," and shall
have the same effect as other judgments.
Execution shall issue upon the judgment at the request of the tax
commissioner, and all laws applicable to sales on execution shall
apply to sales made under the judgment. The portion of the assessment not paid within thirty sixty days
after the day the assessment was issued shall bear interest at the rate per
annum prescribed by section 5703.47 of the Revised Code from
the day the tax commissioner issues the assessment until it is paid. Interest
shall be paid in the same manner as the tax and may be collected by the
issuance
of an assessment under this section. (E) If the tax commissioner believes that collection of the tax
will be jeopardized unless proceedings to collect or secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the tax. On issuance of the jeopardy assessment, the
commissioner immediately shall file an entry with the clerk of the
court of common pleas in the manner prescribed by division (D) of
this section. Notice of the jeopardy assessment shall be served on the party
assessed or the
party's legal representative as provided in section 5703.37 of the Revised Code within
five days of the filing of the entry with the clerk. The total
amount assessed is immediately due and payable, unless the person
assessed files a petition for reassessment in accordance with
division (B) of this section and provides security in a form
satisfactory to the commissioner and in an amount sufficient to satisfy the
unpaid balance of the
assessment. Full or partial payment of the assessment does not prejudice the
commissioner's
consideration of the petition for reassessment. (F) All interest collected by the tax commissioner under this
section shall be paid to the treasurer of state, and when paid
shall be considered revenue arising from the tax imposed by
section 5727.24 of the Revised Code. (G) No assessment shall be made or issued against a natural gas
company or combined electric and gas company for the tax imposed by
section 5727.24 of the Revised Code more than four years
after the return date for the period in which the tax was reported, or more
than four years after the return for the period
was filed, whichever is later. Sec. 5727.47. A copy of each assessment certified pursuant
to section 5727.23 or 5727.38 of the Revised Code
shall be mailed to the public utility, and its mailing shall be
prima-facie evidence of its receipt by the public utility to
which it is addressed. If a public utility objects to any
assessment certified to it pursuant to such sections, it may file
a petition for reassessment with the tax commissioner. The
petition must be made in writing, signed by the authorized agent
of the utility having knowledge of the facts, and filed with the
commissioner, in person or by certified mail, within thirty
sixty days
from the date that the assessment was mailed. If the petition is
filed by certified mail, the date of the United States postmark
placed on the sender's receipt by the postal employee to whom the
petition is presented shall be treated as the date of filing. A
true copy of the assessment objected to shall be attached to the
petition and shall be incorporated by reference into the
petition, but the failure to attach a copy of the assessment and
incorporate it by reference does not invalidate the petition.
The petition also shall indicate the utility's objections, but
additional objections may be raised in writing if received prior
to the date shown on the final determination by the commissioner. Notwithstanding the fact that a petition has been filed,
the tax with respect to the assessment objected to shall be paid
as required by law. The acceptance of the tax payment by the
treasurer of state or any county treasurer shall not prejudice
any claim for taxes on final determination by the commissioner or
final decision by the board of tax appeals or any court. Upon receipt of a properly filed petition, the commissioner
shall notify the treasurer of state or the auditor of each county
to which the assessment objected to has been certified. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the commissioner's
final determination on the petitioner by personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. The commissioner also shall transmit a copy of the
final
determination to the treasurer of state or applicable county
auditor. In the absence of any further appeal, or when a
decision of the board of tax appeals or of any court to which the
decision has been appealed becomes final, the commissioner shall
notify the public utility and, as appropriate, the treasurer of
state who shall proceed under section 5727.42 of the Revised
Code, or the applicable county auditor who shall proceed under
section 5727.471 of the Revised Code. The notification is not
subject to further appeal. Sec. 5727.89. (A) The tax commissioner may make
an assessment, based on any information in the commissioner's
possession, against any electric distribution company, self-assessing
purchaser, or qualified end user
that fails
to file a return or pay any tax, interest, or additional charge
as required by sections 5727.80 to 5727.95 of the
Revised Code. When information in the possession of the tax commissioner
indicates that a person liable for the
tax imposed by section 5727.81 of the
Revised
Code has not paid the full
amount of tax due, the commissioner may audit a representative
sample of the person's business and may issue an assessment
based on the audit. The commissioner shall give the person
assessed written notice of the assessment by personal service or
certified mail. The tax commissioner may issue an assessment for which the tax
imposed by section 5727.81 of the Revised Code was due and
unpaid
on the date the person was informed by an agent of the tax
commissioner of an investigation or audit of the person. Any
payment of the tax for the period covered by the assessment, after
the person is so informed, shall be credited against the
assessment. A penalty of fifteen per cent shall may be added to all
amounts assessed under this section. The commissioner may adopt
rules providing for the imposition and remission of penalties. (B) Unless the party
assessed files with the tax commissioner within thirty sixty
days
after service of the notice of assessment, either personally or
by certified mail, a written petition for reassessment signed by
the party assessed or the party's authorized agent having
knowledge of the facts, the assessment is final and the amount
of the assessment is due and payable from the party assessed to
the treasurer of state. The petition shall indicate the
objections of the party assessed, but additional objections may
be raised in writing prior to the date shown on the final
determination of the tax commissioner. The commissioner shall
grant the petitioner a hearing on the petition, unless waived by
the petitioner. (C) The commissioner may
make any correction to the assessment that the commissioner
finds proper and shall issue a final determination thereon. The
commissioner shall serve a copy of the final determination on
the petitioner either by personal service or by certified mail as provided
in section 5703.37 of the Revised Code,
and the commissioner's decision in the matter is final, subject
to appeal under section 5717.02 of the
Revised Code. (D) After an assessment
becomes final, if any portion of the assessment, including
accrued interest, remains unpaid, a certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the party assessed resides or in which the
party's business is conducted. If the party assessed maintains
no place of business in this state and is not
a resident of this state, the certified copy of the entry
may be filed in the office of the clerk of the court of common
pleas of Franklin
county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state against the person assessed in
the amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for the
kilowatt-hour tax," and shall have the same effect as other
judgments. Execution shall issue upon the judgment at the request
of the tax commissioner, and all laws applicable to sales on
execution shall apply to sales made under the judgment. The portion of the assessment not paid within thirty sixty days
after the day the assessment was issued shall bear interest at
the rate per annum prescribed by section 5703.47 of the
Revised
Code from the day the tax
commissioner issues the assessment until the day the assessment
is paid. Interest shall be paid in the same manner as the tax
and may be collected by the issuance of an assessment under this
section. (E) If the tax
commissioner believes that collection of the tax imposed by
section 5727.81 of the Revised
Code will be jeopardized unless
proceedings to collect or secure collection of the tax are
instituted without delay, the commissioner may issue a jeopardy
assessment against the electric distribution company, self-assessing
purchaser, or qualified end user
liable for
the tax. Upon issuance of the jeopardy assessment, the
commissioner immediately shall file an entry with the clerk of
the court of common pleas in the manner prescribed by division
(D) of this section. Notice of
the jeopardy assessment shall be served on the party assessed or
the party's legal representative within five days of the filing
of the entry with the clerk. The total amount assessed is
immediately due and payable, unless the party assessed files a
petition for reassessment in accordance with division
(B) of this section and
provides security in a form satisfactory to the commissioner and
in an amount sufficient to satisfy the unpaid balance of the
assessment. Full or partial payment of the assessment does not
prejudice the commissioner's consideration of the petition for
reassessment. (F) All money collected
by the tax commissioner under this section shall be paid to the
treasurer of state, and when paid shall be considered as revenue
arising from the tax imposed by section 5727.81 of the
Revised Code. Sec. 5728.01. As used in sections 5728.02 to 5728.14,
inclusive, of the Revised Code: (A) "Motor vehicle" means everything on wheels which that is
self-propelled, other than by muscular power or power collected
from electric trolley wires and other than vehicles or machinery
not designed for or employed in general highway transportation,
used to transport or propel property over a public highway. (B) "Commercial car" means any motor vehicle used for
transporting property, wholly on its own structure on a public
highway. (C) "Commercial tractor" means any motor vehicle designed
and used to propel or draw a trailer or semi-trailer or both on a
public highway without having any provision for carrying loads
independently of such trailer or semi-trailer. (D) "Trailer" means everything on wheels which that is not
self-propelled, except vehicles or machinery not designed for or
employed in general highway transportation and except vehicles
whose total weight excluding load is less than three thousand
pounds, used for carrying property wholly on its own structure
and for being drawn by a motor vehicle on a public highway,
including any such vehicle when formed by or operated as a
combination of a semi-trailer and a vehicle of the dolly type
such as that commonly known as a trailer dolly. "Trailer" does not
include manufactured
homes as defined in division (C)(4) of section 3781.06 of the Revised Code or
mobile
homes as defined in division (O) of section 4501.01 of the Revised Code. (E) "Semi-trailer" means everything on wheels which that is not
self-propelled, except vehicles or machinery not designed for or
employed in general highway transportation and except vehicles
whose total weight excluding load is less than three thousand
pounds, designed and used for carrying property on a public
highway when being propelled or drawn by a commercial tractor
when part of its own weight or the weight of its load, or both,
rest upon and is carried by a commercial tractor. (F) "Commercial tandem" means any commercial car and
trailer or any commercial tractor, semi-trailer, and trailer when
fastened together and used as one unit. (G) "Commercial tractor combination" means any commercial
tractor and semi-trailer when fastened together and used as one
unit. (H) "Axle" means two or more load carrying wheels mounted
in a single transverse vertical plane. (I) "Public highway" means any highway, road, or street
dedicated to public use except a highway under the control and
jurisdiction of the Ohio turnpike commission created by the
provisions of section 5537.02 of the Revised Code. Sec. 5728.02. (A) Except as provided in section 5728.03
of the Revised Code, every person who is liable for the tax
imposed by section 5728.06 of the Revised Code on the operation
of a commercial car with three or more axles when operated alone or as part
of a commercial tandem, a commercial car with two axles
that is to be operated as part of a commercial tandem with a gross vehicle
weight or a registered gross vehicle weight exceeding twenty-six thousand
pounds, or a
commercial tractor that is, or is to be, operated or driven upon
a public highway shall cause to be filed annually with the tax
commissioner a written application for a highway use permit on
blank forms to be furnished by the commissioner for that purpose. Each application for a highway use permit for a commercial
car or a commercial tractor shall contain any information the tax
commissioner prescribes. The application shall be accompanied by a fee of two
dollars.
(B) Upon receipt of the application and fee, the
commissioner shall issue to the person making the application a
highway use permit and any identification device that he the
commissioner considers necessary for the proper administration of this
chapter. The permit and the identification device shall be of a
design and contain any information the commissioner considers
necessary. The identification device shall be displayed on the
commercial car or commercial tractor for which it was issued at
all times in the manner the commissioner prescribes. The highway
use permits and the identification device shall not be
transferable. In case of the loss of a highway use permit or
identification device, the commissioner shall issue a duplicate
of the permit or device upon payment of a fee of one dollar. The highway use permit shall be valid until it expires or
is suspended or surrendered. All moneys collected pursuant to
the provisions of this section shall be deposited in the state
treasury in accordance with the provisions of section 5728.08 of
the Revised Code. Sec. 5728.03. (A) In lieu of filing an application for a
AN annual highway use permit under section 5728.02 of the Revised
Code and in lieu of filing returns under section 5728.08 of the
Revised Code, a person who is the owner of a commercial car with
three or more axles when operated alone or as part of a commercial
tandem, a commercial car with two axles that is to be operated as
part of a commercial tandem with a gross vehicle weight or a registered
gross vehicle weight exceeding twenty-six thousand pounds, or a commercial
tractor that is, or
is to be, operated or driven upon a public highway, may file an
application with the tax commissioner for a single-trip highway
use permit. The application shall be accompanied by a fee of two
dollars and, based on rules adopted by the tax commissioner, and
shall include an
amount estimated to be substantially equivalent to the highway
use and motor vehicle fuel use tax liability that the applicant
will incur by driving on the highways of this state during the
period covered by the single-trip permit. The amount so
estimated shall be considered to be the highway use tax and motor
vehicle fuel use tax liability so incurred. The commissioner may authorize independent permit services
or other persons to issue single-trip highway use permits. (B) The commissioner shall adopt rules establishing all of
the following: (1) Procedures for the issuance of single-trip permits; (2) The length of time the permits are effective; (3) Requirements that independent permit services or other
persons must meet to be authorized to issue single-trip highway
use permits and procedures for obtaining that authorization; (4) Estimates of the amount substantially equivalent to
the highway use and motor vehicle fuel use tax liability that an
applicant will incur by driving on the highways of this state
during the period covered by the permit. (C) No person whose highway use permit issued under
section 5728.02 of the Revised Code is currently under suspension
in accordance with section 5728.11 of the Revised Code shall be
issued a single-trip highway use permit under this section. (D) All moneys collected pursuant to this section shall be
deposited in the state treasury in accordance with section
5728.08 of the Revised Code. Sec. 5728.04. It shall be unlawful, on and after September 30, 1955,
for any
person to operate a commercial car with three or more axles when operated
alone or as part of a commercial tandem, a commercial car
with two axles that is to be operated as part of a commercial tandem
with a gross vehicle weight or a registered gross vehicle weight exceeding
twenty-six thousand pounds, or a commercial tractor when operated alone
or as part of a
commercial
tractor combination or commercial tandem on a public highway without a valid
highway use permit for such commercial car or commercial tractor. The judge or magistrate of any court finding any person guilty of unlawfully
operating a commercial car or commercial tractor as provided for in this
section shall immediately notify the tax commissioner of such violation and
shall transmit to the commissioner the name and the permanent address of the
owner of the commercial car or commercial tractor operated in violation of
this
section, the registration number, the state of registration, and the
certificate of title number of the commercial car or commercial tractor. Sec. 5728.06. For the purpose of providing revenues to pay
the cost of administering and enforcing the laws pertaining to
the levy and collection of the tax imposed by this section, to
provide funds to pay the state's share of the cost of
constructing or reconstructing highways and eliminating railway
grade crossings on the major thoroughfares of the state highway
system and urban extensions thereof, and to pay the interest,
principal, and charges on highway obligations issued pursuant to
Section 2i of Article VIII, Ohio Constitution, and sections
5528.30 and 5528.31 of the Revised Code, there is hereby levied a
highway use tax upon each commercial car with three or more
axles when operated alone or as part of a commercial tandem, each
commercial car with two axles used as a part of a commercial tandem
with a gross vehicle weight or a registered gross vehicle weight exceeding
twenty-six thousand pounds,
and each commercial tractor operated alone or used as part of a
commercial tractor
combination or commercial tandem. Except as provided in section
5728.05 of the Revised Code, the rates shall be as follows: (A) One-half cent for each mile traveled on a public
highway in Ohio by each commercial car with three or more axles; (B) One cent for each mile traveled on a public highway in
Ohio by a commercial tandem with three axles or a commercial
tractor operated alone or as part of a commercial tractor combination
with
three axles; (C) One and one-half cents for each mile traveled on a
public highway in Ohio by a commercial tractor operated as a part
of a commercial tractor combination with four axles; (D) Two cents for each mile traveled on a public highway
in Ohio by a commercial tractor operated as part of a commercial
tractor combination with a total of five or more axles; (E) Two and one-half cents for each mile traveled on a
public highway in Ohio by each commercial car or commercial
tractor operated as part of a commercial tandem with four or more
axles. The owner of each commercial car and commercial tractor
subject to sections 5728.01 to 5728.14 of the Revised Code shall
be liable for the payment of the full amount of the taxes levied
herein. An owner who is a person regularly engaged, for
compensation, in the business of leasing or renting motor
vehicles without furnishing drivers may designate that the lessee
of a motor vehicle leased for a period of thirty days or more
shall report and pay the tax incurred during the duration of the
lease. An owner who is an independent contractor that furnishes
both the driver and motor vehicle, may designate that the person
so furnished with the driver and motor vehicle for a period of
thirty days or more shall report and pay the tax incurred during
that period. An independent contractor that is not an owner, but
that furnishes both the driver and motor vehicle and that has
been designated by the owner of the motor vehicle to report and
pay the tax, may designate that the person so furnished with
driver and motor vehicle for a period of thirty days or more
shall report and pay the tax incurred during that period. Sec. 5728.08. Except as provided in section 5728.03 of the
Revised Code and except as otherwise provided in this section, whoever
is liable for the payment of the tax levied
by section 5728.06 of the Revised Code, on or before the last day
of each January, April, July, and October, shall file with the
treasurer of state, on forms prescribed by the tax commissioner,
a highway use tax return and make payment of the full amount of
the tax due for the operation of each commercial car and
commercial tractor for the next preceding three calendar months. If
the commercial cars or commercial tractors are farm trucks and the amount
of motor fuel used to operate the trucks during the next preceding twelve
calendar months was less than fifteen thousand gallons, the
highway use tax return shall be filed and the full amount of tax due paid on
or before the last day of each
July for the next preceding twelve calendar months. If the
commercial cars or commercial tractors are farm trucks and the amount of motor
fuel used to operate the trucks during the next preceding twelve calendar
months was fifteen thousand gallons or more, the highway use tax return shall
be filed and the full amount of the tax due paid either on or before the last
day of each July for the next preceding twelve calendar months, or
on or before the last day of each January, April,
July, and October for the next preceding three calendar
months, at the option of the person liable for payment of the tax. If the
commercial cars or commercial tractors are not farm trucks, and if, in the
estimation of the tax commissioner, the amount of the tax due does not warrant
quarterly filing, the commissioner may authorize the filing of the highway use
tax return and payment of the full amount due on or before the last day of
each July for the next preceding twelve months. Immediately upon the receipt of a highway use tax return,
the treasurer of state shall mark on the return the date it was
received by the treasurer of state and the amount of tax
payment accompanying the
return and shall transmit the return to the tax commissioner. The treasurer of state shall place to the credit of the tax
refund fund created by section 5703.052 of the Revised Code, out
of receipts from the taxes levied by section 5728.06 of the
Revised Code, amounts equal to the refund certified by the tax
commissioner pursuant to section 5728.061 of the Revised Code.
Receipts from the tax shall be used by the tax commissioner to
defray expenses incurred by the department of taxation in
administering sections 5728.01 to 5728.14 of the Revised Code. All moneys received in the state treasury from taxes levied
by section 5728.06 of the Revised Code and fees assessed under
sections 5728.02 and 5728.03 of the Revised Code which are not
required to be placed to the credit of the tax refund fund as
provided by this section shall, during each calendar year, be
credited to the highway improvement bond retirement fund created
by section 5528.12 of the Revised Code until the commissioners of
the sinking fund certify to the treasurer of state, as required
by section 5528.17 of the Revised Code, that there are sufficient
moneys to the credit of the highway improvement bond retirement
fund to meet in full all payments of interest, principal, and
charges for the retirement of bonds and other obligations issued
pursuant to Section 2g of Article VIII, Ohio Constitution, and
sections 5528.10 and 5528.11 of the Revised Code due and payable
during the current calendar year and during the next succeeding
calendar year. From the date of the receipt of the certification
required by section 5528.17 of the Revised Code by the treasurer
of state until the thirty-first day of December of the calendar
year in which the certification is made, all moneys received in
the state treasury from taxes levied under section 5728.06 of the
Revised Code and fees assessed under sections 5728.02 and 5728.03
of the Revised Code which are not required to be placed to the
credit of the tax refund fund as provided by this section shall
be credited to the highway obligations bond retirement fund
created by section 5528.32 of the Revised Code until the
commissioners of the sinking fund certify to the treasurer of
state, as required by section 5528.38 of the Revised Code, that
there are sufficient moneys to the credit of the highway
obligations bond retirement fund to meet in full all payments of
interest, principal, and charges for the retirement of bonds and
other obligations issued pursuant to Section 2i of Article VIII,
Ohio Constitution, and sections 5528.30 and 5528.31 of the
Revised Code due and payable during the current calendar year and
during the next succeeding calendar year. From the date of the
receipt of the certification required by section 5528.38 of the
Revised Code by the treasurer of state until the thirty-first day
of December of the calendar year in which the certification is
made, all moneys received in the state treasury from taxes levied
under section 5728.06 of the Revised Code and fees assessed under
sections 5728.02 and 5728.03 of the Revised Code which are not
required to be placed to the credit of the tax refund fund as
provided by this section shall be credited to the highway
operating fund created by section 5735.291 of the Revised Code,
except as provided by the next succeeding paragraph of this
section. From the date of the receipt by the treasurer of state of
certifications from the commissioners of the sinking fund, as
required by sections 5528.18 and 5528.39 of the Revised Code,
certifying that the moneys to the credit of the highway
improvement bond retirement fund are sufficient to meet in full
all payments of interest, principal, and charges for the
retirement of all bonds and other obligations which may be issued
pursuant to Section 2g of Article VIII, Ohio Constitution, and
sections 5528.10 and 5528.11 of the Revised Code, and to the
credit of the highway obligations bond retirement fund are
sufficient to meet in full all payments of interest, principal,
and charges for the retirement of all obligations issued pursuant
to Section 2i of Article VIII, Ohio Constitution, and sections
5528.30 and 5528.31 of the Revised Code, all moneys received in
the state treasury from the taxes levied under section 5728.06
and fees assessed under sections 5728.02 and 5728.03 of the
Revised Code, which are not required to be placed to the credit
of the tax refund fund as provided by this section, shall be
deposited to the credit of the highway operating fund. As used in this section, "farm truck" means any commercial car
or commercial tractor that is registered as a farm truck under
Chapter 4503. of the Revised Code. Sec. 5728.09. (A) Any person who fails to file timely the
return required by section 5728.08 of the Revised Code shall may be
required to pay
an additional charge equal to the greater of fifty dollars or ten
per cent of the tax due. The commissioner may adopt rules providing for
the
imposition and remission of the additional charges. Any additional
charge imposed under
this section may be collected through an assessment as provided
in section 5728.10 of the Revised Code. (B) If the tax imposed by this chapter or section 5735.31
of the Revised Code, or any portion of that tax, whether
determined by the tax commissioner or the taxpayer, is not paid
on or before the date prescribed in section 5728.08 of the
Revised Code, interest shall be collected and paid in the same
manner as the tax, upon that unpaid amount at the rate per annum
prescribed by section 5703.47 of the Revised Code from the date
prescribed for payment of the tax until it is paid or until the day an
assessment is issued under section 5728.10 of the Revised Code, whichever
occurs first.
Any interest
imposed under this chapter may be collected through an
assessment
as provided in section 5728.10 of the Revised Code. Sec. 5728.10. (A) If any person required to file a
highway use tax return by sections 5728.01 to 5728.14 of the
Revised Code, fails to file the return within the time prescribed
by those sections, files an incomplete return, files an incorrect
return, or fails to remit the full amount of the tax due for the
period covered by the return, the tax commissioner may make an
assessment against the person, based upon any information in the
commissioner's possession, for the period for which the tax was
due. No assessment shall be made against any person for any tax
imposed by this chapter more than four years after the last day
of the calendar year during which the tax was due. This section
does not bar an assessment against any person who fails to file a
highway use tax return as required by this chapter, or who files
a fraudulent highway use tax return. A penalty of up to fifteen per cent shall may be added to
the amount
of every assessment made pursuant to this section. The
commissioner may adopt rules providing for the imposition and remission
of
penalties added to assessments made under this section. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the party's authorized agent
having knowledge
of the facts, the assessment shall become final and
the
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the commissioner's final determination on
the petitioner by personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the party's place of business is located or the
county in which the party assessed resides. If the party
maintains no office in this state and is not a resident of this
state, the certified copy of the entry may be filed in the office
of the clerk of the court of common pleas of Franklin county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state of Ohio against the party assessed
in the amount shown on the entry. The judgment may be filed by
the clerk in a loose-leaf book entitled "special judgments for
state highway use tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within
thirty sixty days after the day the assessment was issued shall
bear
interest at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax
commissioner issues the assessment until it is paid.
Interest shall be paid in the same manner as the tax
and may be collected by the issuance of an assessment under this
section. (D) All money collected by the commissioner under this
section shall be paid into the state treasury in the same manner
as the revenues deriving from the taxes imposed by section
5728.06 of the Revised Code. Sec. 5733.11. (A) If any corporation required to file a
report under this chapter fails to file the report within the
time prescribed, files an incorrect report, or fails to remit the
full amount of the tax due for the period covered by the report,
the tax commissioner may make an assessment against the
corporation for any deficiency for the period for which the
report or tax is due, based upon any information in the
commissioner's possession. No assessment shall be made or issued against a corporation
more than three years after the later of the final date the
report subject to assessment was required to be filed or the date
the report was filed. Such time limit may be extended if both
the corporation and the commissioner consent in writing to the
extension. Any such extension shall extend the three-year time
limit in division (B) of section 5733.12 of the Revised Code for
the same period of time. There shall be no bar or limit to an
assessment against a corporation that fails to file a report
subject to assessment as required by this chapter, or that files
a fraudulent report. The commissioner shall give the corporation assessed
written notice of the assessment by personal service or certified
mail as provided in section 5703.37 of the Revised Code. (B) Unless the corporation to which the notice of
assessment is directed files with the commissioner within thirty
sixty
days after service thereof, either personally or by certified
mail
as provided in section 5703.056 of the Revised Code, a petition for reassessment in
writing, signed by the
authorized agent of the corporation assessed having knowledge of
the facts, and makes payment of the portion of the assessment
required by division (E) of this section, the assessment shall
become final, and the amount of the assessment shall
be due
and payable from the corporation assessed to the treasurer of
state. The petition shall indicate the corporation's objections,
but additional objections may be raised in writing if received
prior to the date shown on the final determination by the
commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the final determination on the petitioner by
personal service or by
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the corporation has an office or place of
business in this state, the county in which the corporation's
statutory agent is located, or Franklin county. Immediately upon the filing of the entry, the clerk shall
enter a judgment against the corporation assessed in the amount
shown on the entry. The judgment may be filed by the clerk in a
loose-leaf book entitled "special judgments for state corporate
franchise and litter taxes," and shall have the same effect
as other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of an assessment not paid within
thirty sixty days after the day the assessment was issued shall
bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code
from the day the tax commissioner issues the assessment
until the assessment is paid. Interest shall be paid in the
same manner as the tax and may be collected by issuing an
assessment under this section. (D) All money collected under this section shall be
considered as revenue arising from the taxes imposed by this
chapter. (E) The portion of an assessment which must be paid upon
the filing of a petition for reassessment shall be as follows: (1) If the sole item objected to is the assessed penalty
or interest, full payment of the assessment, including
interest but
not penalty and
interest, is required; (2) If the corporation assessed failed to file, prior to
the date of issuance of the assessment, the annual report
required by section 5733.02 of the Revised Code, any amended
report required by division (C) of section 5733.031 of the
Revised Code for the tax year at issue, or any amended report
required by division (D) of section 5733.067 of the Revised Code
to indicate a reduction in the amount of the credit provided
under that section, full payment of the assessment, including
interest but not penalty and interest, is required; (3) If the corporation assessed filed, prior to the date
of issuance of the assessment, the annual report required by
section 5733.02 of the Revised Code, all amended reports required
by division (C) of section 5733.031 of the Revised Code for the
tax year at issue, and all amended reports required by division
(D) of section 5733.067 of the Revised Code to indicate a
reduction in the amount of the credit provided under that
section, and a balance of the taxes shown due on the reports as
computed on the reports remains unpaid, payment of only that
portion of the assessment representing the unpaid balance of tax and
interest is required; (4) If the corporation assessed does not dispute that it
is a taxpayer but claims the protections of section 101 of Public
Law 86-272, 73 Stat. 555, 15 U.S.C.A. 381, as amended, payment of
only that portion of the assessment representing any balance of
taxes shown due on the corporation's annual report required by
section 5733.02 of the Revised Code, as computed on the report,
that remains unpaid, and that represents taxes imposed by
division (C) of section 5733.06, division (C)(2) of section
5733.065, and division (C) of section 5733.066 of the Revised
Code, together with all related interest, is required; (5) If none of the conditions specified in divisions
(E)(1) to (4) of this section apply, or if the corporation
assessed disputes that it is a taxpayer, no payment is required. (F) Notwithstanding the fact that a petition for
reassessment is pending, the corporation may pay all or a portion
of the assessment that is the subject of the petition. The
acceptance of a payment by the treasurer of state does not
prejudice any claim for refund upon final determination of the
petition. If upon final determination of the petition an error in the
assessment is corrected by the commissioner, upon petition so
filed or pursuant to a decision of the board of tax appeals or
any court to which the determination or decision has been
appealed, so that the amount due from the corporation under the
corrected assessment is less than the portion paid, there shall
be issued to the corporation, its assigns, or legal
representative a refund in the amount of the overpayment as
provided by section 5733.12 of the Revised Code, with interest on
that amount as provided by section 5733.26 of the Revised Code,
subject to section 5733.121 of the Revised Code. Sec. 5733.28. (A) In addition to any other penalty
imposed by this chapter or Chapter 5703. of the Revised Code, the
following penalties shall apply: (1) If a taxpayer required to file any report, including
an informational notice or report, under this chapter fails to
make and file the report within the time prescribed, including
any extensions of time granted by the tax commissioner, a penalty
shall may be imposed equal to not exceeding the
greater of fifty dollars per month
or fraction of a month, not to exceed five hundred dollars, or
five per cent per month or fraction of a month, not to exceed
fifty per cent, of the tax required to be shown on the report,
for each month or fraction of a month elapsing between the due
date, including extensions of the due date, and the date on which
filed. (2) If a taxpayer fails to pay any amount of tax required
to be paid under this chapter, except estimated tax under section
5733.021 of the Revised Code, by the dates prescribed for
payment, a penalty shall may be imposed equal to not
exceeding twice the interest
charged under division (A) of section 5733.26 of the Revised Code
for the delinquent payment. (3) If a taxpayer fails to pay any amount of estimated tax
required to be paid under section 5733.021 of the Revised Code by
the dates prescribed for payment, a penalty shall may be imposed
equal to not exceeding twice the interest charged under division
(A) of section
5733.29 of the Revised Code for the delinquent payment. (4) If a taxpayer files what purports to be a report
required by this chapter that does not contain information upon
which the substantial correctness of the report may be judged or
contains information that on its face indicates that the report
is substantially incorrect, and the filing of the report in that
manner is due to a position that is frivolous or a desire that is
apparent from the report to delay or impede the administration of
the tax levied by this chapter, a penalty of up to five hundred dollars
shall may be imposed. (5) If a taxpayer makes a fraudulent attempt to evade the
reporting or payment of the tax required to be shown on any
report required under this chapter, a penalty shall may be
imposed
equal to not exceeding the greater of one thousand dollars or
one hundred per
cent of the tax required to be shown on the report. (6) If any person makes a false or fraudulent claim for a
refund under this chapter, a penalty shall may be imposed
equal to not exceeding
the greater of one thousand dollars or one hundred per cent of
the claim. The penalty imposed under division (A)(6) of this
section, any refund issued on the claim, and interest on any
refund from the date of the refund, may be assessed under section
5733.11 of the Revised Code as tax, penalty, or interest imposed
under this chapter without regard to whether the person making
the claim is otherwise subject to the provisions of this chapter,
and without regard to any time limitation for the assessment
imposed by division (A) of section 5733.11 of the Revised Code. (B) For purposes of this section, the tax required to be
shown on the report shall be reduced by the amount of any part of
the tax paid on or before the date, including extensions of the
date, prescribed for filing the report. (C) Each penalty imposed under this section shall be in
addition to any other penalty provided in this section. All or
part of any penalty imposed under this section shall be abated by
the commissioner if the taxpayer shows that the failure to comply
with the provisions of this chapter is due to reasonable cause
and not willful neglect. Sec. 5735.01. As used in this chapter: (A) "Motor vehicles" includes all vehicles, vessels,
watercraft, engines, machines, or mechanical contrivances which
are powered by internal combustion engines or motors. (B) "Motor fuel" means gasoline, diesel fuel, K-1 (water clear)
kerosene, or any other liquid motor fuel, including, but not limited to,
liquid petroleum gas or liquid natural gas, but excluding substances
prepackaged and sold in containers of five gallons or less. (C) "K-1 Kerosene (waterclear)" means fuel that conforms to the
chemical
and physical standards for kerosene no. 1-K as set forth in
the
american society for testing and materials (ASTM) designated
D-3699 "standard for specification for kerosene," as that standard
may be modified from time to time.
For purposes of inspection and testing, laboratory analysis
shall be conducted using methods recognized by the ASTM
designation D-3699. (D) "Diesel fuel" means
any liquid fuel capable of use in discrete form or as a blend
component in the operation of engines of the diesel type, including
transmix when mixed with diesel fuel. (E) "Gasoline" means any
of the following: (1) All products, commonly or commercially known or sold
as gasoline; (2) Any blend stocks or additives, other than including
alcohol,
that are sold for blending with gasoline, other than products
typically sold in containers of five gallons or less; (3) Transmix when mixed with gasoline, unless certified, as required
by the
tax commissioner, for withdrawal from terminals for reprocessing at
refineries; (4) Alcohol that is offered for sale or sold for use as, or
commonly and commercially used as, a fuel for internal
combustion engines. Gasoline does not include diesel fuel, commercial or
industrial napthas or solvents manufactured, imported, received,
stored, distributed, sold, or used exclusively for purposes
other than as a motor fuel for a motor vehicle or vessel. The
blending of any of the products listed in the preceding
sentence, regardless of name or characteristics, is conclusively presumed to
have been done to produce gasoline,
unless the product obtained by the blending is entirely
incapable for use as fuel to operate a motor vehicle. An
additive, blend stock, or alcohol is presumed to be sold for
blending unless a certification is obtained as required by the
tax commissioner. (F) "Public highways" means lands and lots over which the
public, either as user or owner, generally has a right to pass,
even though the same are closed temporarily by the authorities
for the purpose of construction, reconstruction, maintenance, or
repair. (G) "Waters within the boundaries of this state" means all
streams, lakes, ponds, marshes, water courses, and all other
bodies of surface water, natural or artificial, which are
situated wholly or partially within this state or within its
jurisdiction, except private impounded bodies of water. (H) "Person" includes
individuals, partnerships,
firms, associations, corporations, receivers, trustees in
bankruptcy, estates, joint-stock companies, joint ventures, the state and its
political subdivisions, and any combination of persons of any form. (I)(1) "Motor fuel
dealer" means any person who satisfies any of the following: (a) The person imports from another state or foreign country or
acquires motor fuel by any means into a terminal in this state; (b) The person imports motor fuel from another state or foreign
country in bulk lot vehicles for subsequent sale and
distribution in this state from bulk lot vehicles; (c) The person refines motor fuel in this state; (d) The person acquires motor fuel from a motor fuel dealer for
subsequent sale and distribution by that person in this state
from bulk lot vehicles; (e) The person possesses an unrevoked permissive motor fuel
dealer's license. (2) Any person who obtains dyed diesel fuel for use other than the
operation of motor vehicles upon the public highways or upon
waters within the boundaries of this state, but later uses that
motor fuel for the operation of motor vehicles upon the public
highways or upon waters within the boundaries of this state, is deemed a motor
fuel dealer as regards any unpaid motor fuel taxes levied
on the motor fuel so used. (J) As used in sections
5735.05, 5735.25, 5735.29, and 5735.30 of the
Revised
Code only: (1) With respect to gasoline, "received" or "receipt" shall be construed
as follows: (a) Gasoline produced at a refinery in this state or delivered to
a terminal in this state is deemed received when it is disbursed through a
loading rack at that refinery or terminal; (b) Except as provided in division
(J)(1)(a) of this section, gasoline imported into
this state or purchased or
otherwise acquired in this state by any person is deemed
received within this state by that person when the gasoline is
withdrawn from the container in which it was transported; (c) Gasoline delivered or disbursed by any means from a terminal
directly to another terminal is not deemed received. (2) With respect to motor fuel other than gasoline,
"received" or "receipt" means distributed or sold for use or used to generate
power for the operation of motor vehicles upon the public highways or upon
waters within the boundaries of this state. All diesel fuel that is not dyed
diesel fuel, regardless of its use, shall be considered as used to generate
power for the operation of motor vehicles upon the public highways or upon
waters within the boundaries of this state when the fuel is sold or
distributed to a person other than a licensed motor fuel dealer or to a person
licensed under section 5735.026 of the Revised Code. (K) Motor fuel used for the
operation of licensed
motor vehicles employed in the maintenance, construction, or
repair of public highways is deemed to be used for the
operation of motor vehicles upon the public highways. (L) "Licensed motor fuel dealer"
means any dealer possessing an
unrevoked motor fuel dealer's license issued by the tax commissioner as
provided in
section 5735.02 of the Revised Code. (M) "Licensed retail dealer" means any retail dealer
possessing an unrevoked retail dealer's license issued by the tax commissioner
as provided in section 5735.022 of the Revised Code. (N) "Cents per gallon rate" means the amount computed
by
the tax commissioner under section 5735.011 of the Revised Code
that is used to determine that portion of the tax levied by
section 5735.05 of the Revised Code that is computed in the
manner prescribed by division (B)(2) of section 5735.06 of the
Revised Code and that is applicable for the period that begins on
the first day of July following the date on which the
commissioner makes the computation. (O) "Retail dealer"
means any person that sells or distributes
motor fuel at a retail service station located in
this state. (P) "Retail service station" means a location from
which motor fuel is sold to the general public and is dispensed or pumped
directly into motor vehicle fuel tanks for consumption. (Q) "Transit bus" means a motor vehicle having a seating
capacity of more than ten persons which is operated for public
transit or paratransit service on a regular and continuing basis
within the state by or for a county, a municipal corporation, a
county transit board pursuant to sections 306.01 to 306.13 of the
Revised Code, a regional transit authority pursuant to sections
306.30 to 306.54 of the Revised Code, or a regional transit
commission pursuant to sections 306.80 to 306.90 of the Revised
Code. Public transit or paratransit service may include fixed
route, demand-responsive, or subscription bus service
transportation, but does not include shared-ride taxi service,
carpools, vanpools, jitney service, school bus transportation, or
charter or sightseeing services. (R) "Export" means motor
fuel delivered outside this state. Motor fuel delivered outside this state
by or for the seller constitutes an export by the seller. Motor
fuel delivered outside this state by or for the purchaser constitutes
an export by the purchaser. (S) "Import" means motor
fuel delivered into this state from outside this state. Motor fuel
delivered into this state from outside this state by or for the seller
constitutes an import by the seller. Motor fuel delivered into
this state from outside this state by or for the purchaser constitutes
an import by the purchaser. (T) "Terminal" means a
motor fuel storage or distribution facility that is supplied by
pipeline or marine vessel. (U) "Consumer" means a
buyer of motor fuel for purposes other than resale in any form. (V) "Bulk lot vehicle"
means railroad tank cars, transport tank trucks and tank wagons
with a capacity of at least 1,400 gallons. (W) "Licensed permissive
motor fuel dealer" means any person possessing an unrevoked
permissive motor fuel dealer's license issued by the
tax commissioner under section 5735.021 of the
Revised Code. (X) "Licensed terminal operator" means
any person possessing an unrevoked terminal operator's license
issued by the tax commissioner under section 5735.026 of the
Revised Code. (Y) "Licensed exporter" means any
person possessing an unrevoked exporter's license issued by the
tax commissioner under section 5735.026 of the
Revised Code. (Z) "Dyed diesel fuel" means any diesel fuel dyed
pursuant to regulations issued by the internal revenue service
or a rule promulgated by the tax commissioner. (AA) "Gross gallons" means U.S. gallons without
temperature or barometric adjustments. (BB) "Net gallons" means U.S. gallons with a
temperature adjustment to sixty degrees fahrenheit. Sec. 5735.012. Amounts of motor fuel reported under this chapter
shall be measured in gross gallons, except that amounts reported for
terminal to terminal transactions shall be measured in net gallons and
amounts reported for terminal to Ohio licensed dealer transactions
shall be measured in both net gallons and gross gallons. Sec. 5735.023. (A) No person
operating a retail service station shall store, sell, or attempt
to sell or distribute any untaxed motor fuel, except K-1 (water
clear) kerosene, at a retail service station. (B) A licensed motor fuel
dealer that operates a bulk storage plant and also maintains at
the same location a retail pump that is connected to a bulk
storage tank is not subject to division (A) of this section, except
that the licensed motor fuel dealer shall pay the tax on all motor fuel
dispensed through the retail pump. (C) Each day, or part thereof, that a person is in violation of
division (A) or (B) of this section constitutes a separate
offense for purposes of section 5735.99 of the Revised
Code. Sec. 5735.05. (A) To provide revenue for maintaining the
state highway system; to widen existing surfaces on such
highways; to resurface such highways; to pay that portion of the
construction cost of a highway project which a county, township,
or municipal corporation normally would be required to pay, but
which the director of transportation, pursuant to division (B) of
section 5531.08 of the Revised Code, determines instead will be
paid from moneys in the highway operating fund; to enable the
counties of the state properly to plan, maintain, and repair
their roads and to pay principal, interest, and charges on bonds
and other obligations issued pursuant to Chapter 133. of the
Revised Code for highway improvements; to enable the municipal
corporations to plan, construct, reconstruct, repave, widen,
maintain, repair, clear, and clean public highways, roads, and
streets, and to pay the principal, interest, and charges on bonds
and other obligations issued pursuant to Chapter 133. of the
Revised Code for highway improvements; to enable the Ohio
turnpike commission to construct, reconstruct, maintain, and
repair turnpike projects; to maintain and repair bridges and
viaducts; to purchase, erect, and maintain street and traffic
signs and markers; to purchase, erect, and maintain traffic
lights and signals; to pay the costs apportioned to the public
under sections 4907.47 and 4907.471 of the Revised Code and to
supplement revenue already available for such purposes; to pay
the costs incurred by the public utilities commission in
administering sections 4907.47 to 4907.476 of the Revised Code;
to distribute equitably among those persons using the privilege
of driving motor vehicles upon such highways and streets the cost
of maintaining and repairing them; to pay the interest,
principal, and charges on highway capital improvements bonds and other
obligations issued
pursuant to Section 2m of Article VIII, Ohio Constitution,
and
sections 5528.51 to
5528.56 of the Revised Code; to pay the
interest, principal, and charges on highway obligations issued
pursuant to Section 2i of Article VIII, Ohio Constitution, and
sections 5528.30 and 5528.31 of the Revised Code; and to provide
revenue for the purposes of sections 1547.71 to 1547.78 of the
Revised Code, a motor fuel excise tax is hereby imposed on
all motor fuel dealers upon receipt of motor fuel within
this state at the rate of two cents plus
the cents per gallon rate on each gallon so received, to be computed in
the manner set forth in section
5735.06
of the Revised Code; provided that no tax is hereby imposed upon
the following transactions: (1) The sale of dyed diesel fuel
by a licensed motor fuel dealer from a location other than a
retail service station provided the licensed motor fuel dealer
places on the face of the delivery document or invoice, or both
if both are used, a conspicuous notice stating that the fuel is
dyed and is not for taxable use, and that taxable use of that
fuel is subject to a penalty. The tax commissioner, by rule,
may provide that any notice conforming to rules or regulations
issued by the United States department of the
treasury or the Internal Revenue Service is sufficient notice
for the purposes of division (A)(1) of this section;. (2) The sale of K-1 (water clear) kerosene to a retail service
station, except when placed directly in the fuel supply tank of a motor
vehicle. Such sale shall be rebuttably presumed to not be distributed or sold
for use or used to generate power for the operation of motor vehicles upon the
public highways or upon the waters within the boundaries of this
state. (3) The sale of motor fuel by a licensed motor
fuel dealer to another licensed motor fuel dealer; (4) The exportation of
motor
fuel by a licensed motor fuel dealer from
this state to any other state or foreign
country; (5) The sale of motor fuel to the United
States
government or any of its agencies, except such tax as is
permitted by it, where such sale is evidenced by an exemption
certificate, in form approved by the tax commissioner, executed
by the United States government or an agency thereof certifying
that the motor fuel therein identified has been purchased
for the exclusive use of the United States government or its
agency; (6) The sale of motor fuel which is in the
process
of transportation in foreign or interstate commerce, except in so
far as it may be taxable under the
Constitution and statutes of
the United States, and except as may be agreed upon in writing by
the dealer and the commissioner; (7) The sale of motor fuel when sold
exclusively
for use in the operation of aircraft, where such sale
is
evidenced by an exemption certificate prescribed by the
commissioner and executed by the purchaser certifying that the
motor fuel purchased has been purchased for exclusive use
in the operation of aircraft; (8) The sale for exportation of motor fuel by a licensed motor
fuel dealer to a licensed exporter type A; (9) The sale for exportation of motor fuel by a licensed motor fuel dealer
to a licensed exporter type B, provided that the destination state
motor fuel tax has been paid or will be accrued and paid by the licensed motor
fuel dealer. (10) The sale to a consumer of diesel fuel, by a motor fuel
dealer for delivery from a bulk lot vehicle, for consumption in operating a
vessel when the use of such fuel in a vessel would otherwise qualify for a
refund under section 5735.14 of the Revised Code. Division (A)(1) of this section does not apply to the
sale or distribution of dyed diesel fuel used to operate a motor
vehicle on the public highways or upon water within the
boundaries of this state by persons permitted under regulations
of the United States department of the treasury or
of the Internal Revenue Service to so use dyed diesel fuel. (B) The two cent motor fuel tax levied by this section
is also
for the purpose of paying the expenses of administering and
enforcing the state law relating to the registration and
operation of motor vehicles. After the tax provided for by this section on the receipt of any motor
fuel has
been paid by
the motor fuel dealer, the motor fuel may thereafter be
used, sold,
or resold by any person having lawful title to it, without
incurring liability for such tax. If a licensed motor fuel dealer sells motor fuel
received by
the licensed
motor fuel dealer to another
licensed motor fuel dealer, the seller may deduct on the report
required by
section 5735.06 of the Revised Code the number of gallons so sold
for the month within which the motor fuel was sold or
delivered. In this event the number of gallons is deemed to have
been received by the purchaser, who shall report and pay the tax
imposed thereon. Sec. 5735.12. (A) Any motor fuel dealer or qualified interstate bus
operator required by this chapter to file reports and pay the tax
levied by this
chapter who
fails to file the report within the time prescribed, shall may
be
liable for an additional charge equal to not exceeding the
greater of ten per
cent of the motor fuel dealer's or qualified interstate bus
operator's tax liability for that month or
fifty dollars. The
tax commissioner may remit all or a portion of the additional
charge and may adopt rules relating to the remission of all or a
portion of the charge. If any person required by this chapter to file reports and
pay the taxes, interest, or additional charge levied by
this chapter fails
to file the report, files an incomplete or incorrect report, or
fails to remit the full amount of the tax, interest, or
additional charge
due for the period covered by the report, the commissioner may
make an assessment against the person based upon any information
in the commissioner's possession. No assessment shall be made against any motor fuel dealer or
interstate bus operator for taxes imposed by this chapter more
than four years after the date on which the report on which the
assessment was based was due or was filed, whichever is later.
This section does not bar an assessment against any motor fuel dealer
or qualified interstate bus operator who fails to file a report
required by either section 5735.06 or 5735.32 of the Revised
Code, or who files a fraudulent motor fuel tax report. A penalty of up to fifteen per cent shall may be added to
the
amount
of every assessment made under this section. The commissioner
may adopt rules providing for the imposition and remission of penalties
added to
assessments made under this section. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the authorized agent of the
party assessed having knowledge of the facts, the assessment shall become
final and the
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the
commissioner's assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the commissioner's
final determination on the petitioner by personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the commissioner's entry making the assessment final may be
filed in the office of the clerk of the court of common pleas in the
county in which the party assessed resides or in which the
business of the party assessed is conducted. If the party assessed
maintains no place of business in this state and is not a resident of this
state, the certified copy of the entry may be filed in the office of the clerk
of the court of common pleas of Franklin county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state against the party assessed in the
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for state
motor fuel tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within thirty sixty days
after the
day the assessment was issued shall bear interest at the rate per annum
prescribed by section 5703.47 of the Revised Code from the day the tax
commissioner issues the assessment until it is paid. Interest shall be paid
in the same manner as the tax and may be collected by the issuance of an
assessment under this section. (D) All money collected by the commissioner under this
section shall be paid to the treasurer of state, and when paid
shall be considered as revenue arising from the tax imposed by
this chapter. (E) If the tax commissioner determines that the commissioner has
erroneously refunded motor fuel tax to any person, the commissioner may make
an assessment against the person for recovery of the erroneously refunded
tax. Sec. 5735.121. (A) If the tax commissioner finds that any
person liable for tax under this chapter is about to depart from the
state, remove property from the state, conceal
self, or conceal the person's property, or do
any other act tending to prejudice, obstruct, or render wholly or
partly ineffectual proceedings to collect the tax, unless
proceedings are commenced without delay, or if the commissioner
believes that the collection of the amount due from any person
will be jeopardized by delay, the commissioner may issue a
jeopardy assessment against the person for the amount of the tax,
plus a penalty of up to fifteen per cent. Upon issuance of a jeopardy
assessment under this division, the total amount assessed shall
immediately be due and payable unless security is provided
pursuant to division (C) of this section. Any assessment issued under this
section shall
bear interest in the manner
prescribed in section 5735.12 of the Revised Code. (B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5735.12 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the person assessed or the legal representative of the
person assessed, as provided in section 5703.37 of the Revised Code,
within five
days of the filing of the entry. The person assessed may
petition for reassessment within thirty sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5735.12 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner. (C) If the person subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the person
that previously were seized. Upon satisfaction of the
assessment, the commissioner shall order the security released
and the judgment vacated. (D) The commissioner may adopt rules providing for the imposition
and remission of penalties added to assessments made under this section. Sec. 5735.14. Any person who uses any motor fuel,
on which the tax imposed by this
chapter
has been paid, for the purpose of operating
stationary gas engines, tractors not used on public highways,
unlicensed motor vehicles used exclusively in intraplant
operations, vessels when used in trade, including vessels when
used in connection with an activity which constitutes a person's
chief business or means of livelihood or any other vessel used
entirely for commercial purposes, vessels used for commercial
fishing, vessels used by the sea scout department of the boy
scouts of America chiefly for training scouts in seamanship,
vessels used or owned by any railroad company, railroad car ferry
company, the United States, this state, or any political
subdivision of this state, or aircraft, or who uses any such fuel
upon which such tax has been paid, for cleaning or for dyeing, or
any purpose other than the operation of motor
vehicles upon
highways or upon waters within the boundaries of this state,
shall be reimbursed in the amount of the tax so paid on such
motor fuel as provided in this section; provided, that
any person purchasing motor fuel in this state on which
taxes levied under Title LVII of the Revised Code have been paid
shall be reimbursed for such taxes paid in this state on such
fuel used by that person in another state on which a tax is
paid for such
usage, except such tax used as a credit against the tax levied by
section 5728.06 of the Revised Code. A person shall not be reimbursed for
taxes paid on fuel that is used while a motor vehicle is idling or used to
provide comfort or safety in the operation of a motor vehicle. Such person shall file with the tax commissioner an
application for refund within one hundred eighty days year from
the
date of purchase, stating the quantity of fuel used for purposes
other than the operation of motor vehicles, except
that no
person shall file a claim for the tax on fewer than one hundred
gallons of motor fuel. Such application shall be
accompanied by the statement described in section 5735.15 of the
Revised Code showing such purchase, together with evidence of
payment thereof. After consideration of such application and
statement, the commissioner shall determine the amount of refund
due and certify such amount to the director of budget and
management and treasurer of state for payment from the tax refund
fund created by section 5703.052 of the Revised Code. No refund
shall be authorized or paid under this section on a single claim
for tax on fewer than one hundred gallons of motor fuel.
The commissioner may require that the application be supported by
the affidavit of the claimant. The refund authorized by this
section shall be reduced by the cents per gallon amount of any
qualified fuel credit received under section 5735.145 of the
Revised Code, as determined by the commissioner, for each gallon
of qualified fuel included in the total gallonage of motor
fuel upon which the refund is computed. The right to receive any refund under this section is not
assignable. The payment of this refund shall not be made to any
person other than the person originally entitled thereto who used
the motor fuel upon which the claim for refund is based,
except that such refunds when allowed and certified as provided
in this section may be paid to the executor, the administrator,
the receiver, the trustee in bankruptcy, or the assignee in
insolvency proceedings of such person. Sec. 5735.141. Any retail dealer of motor
fuel shall receive a
refund for Ohio motor fuel taxes paid on fuel lost by a
retail dealer through shrinkage and evaporation. This
refund shall be
one per cent of the Ohio motor fuel taxes paid on fuel
purchased during any semiannual period ending the thirtieth day
of June or the thirty-first day of December. In order to receive a refund the retail dealer shall
file with
the tax commissioner, within sixty one hundred twenty days after
the thirtieth day
of June and the thirty-first day of December of each year, an
application for a refund stating the quantity of motor
fuel which was purchased for resale by the applicant during the
preceding semiannual period ending the thirtieth day of June or
the thirty-first day of December and upon which the motor
fuel tax has been paid. No person shall file a claim for the tax
on fewer than one hundred gallons of motor fuel. The
form and contents of the application shall be prescribed by the
tax commissioner, and the application shall be signed in
accordance with section 5703.25 of the Revised Code. The tax
commissioner shall certify the amount of the refund to the
director of budget and management and treasurer of state for
payment from the tax refund fund provided for by section 5703.052
of the Revised Code. No refund shall be authorized or ordered
under this section for any single claim for the tax on fewer than
one hundred gallons of motor fuel. The refund authorized
by this section shall be reduced by the cents per gallon amount
of any qualified fuel credit received under section 5735.145 of
the Revised Code, as determined by the commissioner, for each
gallon of qualified fuel included in the total gallonage of motor
fuel upon which the refund is computed. The right to receive any refund under this section is not
assignable. The payment of the refund shall not be made to any
person other than the retail dealer originally entitled
thereto,
except that the refund may be paid to the executor,
administrator, receiver, trustee in bankruptcy, or assignee in
insolvency proceedings of such retailer. A motor fuel dealer shall be deemed to be a
retail dealer when
acting in a retail capacity. Sec. 5735.142. Any person who uses any motor fuel,
on which the tax imposed by sections 5735.05, 5735.25, and
5735.29 of the Revised Code has been paid, for the purpose of
operating a transit bus shall be reimbursed in the amount of
the tax paid on motor fuel used by public transportation
systems providing transit or paratransit service on a regular
and continuing basis within the state. Such person shall file with the tax commissioner an
application for refund within one hundred eighty days year from
the
date of purchase, stating the quantity of fuel used for operating
transit buses used by local transit systems in
furnishing scheduled common carrier, public passenger land
transportation service along regular routes primarily in one or
more municipal corporations, except that no person shall file a
claim for the tax on fewer than one hundred gallons of motor
fuel. The application shall be accompanied by the
statement described in section 5735.15 of the Revised Code
showing the purchase, together with evidence of payment thereof. After
consideration of the application and statement, the
commissioner shall determine the amount of refund due and shall certify such
amount to the director of budget
and management and treasurer of state for payment from the tax
refund fund provided for in section 5703.052 of the Revised Code. The
commissioner may require that the application be supported by
the affidavit of the claimant. No refund shall be authorized or
ordered for any single claim for the tax on fewer than one
hundred gallons of motor fuel. The refund authorized by
this section shall be reduced by the cents per gallon amount of
any qualified fuel credit received under section 5735.145 of the
Revised Code, as determined by the commissioner, for each gallon
of qualified fuel included in the total gallonage of motor
fuel upon which the refund is computed. The right to receive any refund under this section is not
assignable. The payment of this refund shall not be made to any
person other than the person originally entitled thereto who used
the motor fuel upon which the claim for refund is based,
except that the refund when allowed and certified, as provided in
this section, may be paid to the executor, the administrator, the
receiver, the trustee in bankruptcy, or the assignee in
insolvency proceedings of the person. Sec. 5735.145. (A) As used in this section and sections
5735.13, 5735.14, 5735.141, and 5735.142, and 5735.17 of
the Revised Code: (1) "Qualified fuel" means ethanol that is to be combined
with gasoline to create a blend of not more than ten per cent by
volume of ethanol and that when so blended is used, sold, or
distributed as a motor fuel. (2) "Ethanol" means: (a) Ethanol produced in a manufacturing facility with an
annual production capacity of less than two million gallons from
wood or the grain of a cereal grass and denatured in accordance
with United States bureau of alcohol and tax regulations; or (b) Ethanol produced through a coal-fired process from
wood or the grain of a cereal grass and denatured in accordance
with United States bureau of alcohol and tax regulations. (B) Any motor fuel dealer shall
receive a
qualified fuel credit on each gallon of qualified fuel used,
sold, or distributed by the dealer and on which the dealer is
liable for the taxes imposed by this chapter of the Revised Code. To
receive
a credit,
the dealer shall certify on the monthly report required by
section 5735.06 of the Revised Code the number of gallons of
qualified fuel used, sold, or distributed during the month to
which the report applies and upon which such taxes are imposed.
After computation of the amount of the tax in accordance with
division (B) of section 5735.06 of the Revised Code, the number
of gallons of qualified fuel used, sold, or distributed during
the month to which the report applies and included in the gallons
of motor fuel upon which the tax is imposed shall be
multiplied by ten cents per gallon. The resulting product shall
be subtracted from the tax computed under division (B) of section
5735.06 of the Revised Code and shall constitute the qualified
fuel credit provided by this section. (C) The aggregate amount of credits permitted under this
section shall be subject to the limitations prescribed in this
division. (1) Beginning July 1, 1993, and ending June 30, 1997,
for
each fiscal year, the credit shall not exceed a total of fifteen
million dollars, and for each month of each such year shall not
exceed the amount specified for that month as follows:
| July | | $1,390,125 | | January | | $1,133,625 |
| August | | 1,312,125 | | February | | 1,106,625 |
| September | | 1,229,625 | | March | | 1,211,625 |
| October | | 1,268,625 | | April | | 1,192,125 |
| November | | 1,235,625 | | May | | 1,270,125 |
| December | | 1,280,625 | | June | | 1,369,125 |
(2) If in any month the credit is less than the limit set
forth for that month, the unused portion shall be carried forward
and added to the succeeding month's limit until the end of the
fiscal year. (3) If in any month the credit, including any amount
carried forward from a preceding month, exceeds the limit for
that month by less than five per cent, the tax commissioner shall
either reduce the limit for the succeeding month by the amount of
the excess, or collect the excess from each motor fuel dealer,
apportioning the amount collected among motor fuel dealers in proportion to
the amount of credit claimed by each motor fuel dealer for that month. If in any month the credit, including any amount carried
forward from a preceding month, exceeds the limit for that month
by five per cent or more, the tax commissioner shall collect the
excess from each motor fuel dealer, apportioning the amount collected
among motor fuel dealers in proportion to the amount of credit claimed by each
motor fuel dealer for that month. (4) Any credit in excess of the amounts prescribed in this
section and subject to collection by the tax commissioner
pursuant to division (C)(2) or (3) of this section shall be paid
to the treasurer of state as revenue arising from taxes imposed
under this chapter and is subject to assessment as provided in
sections 5735.12 and 5735.121 of the Revised Code. Sec. 5735.18. Any person other than a motor fuel dealer who
purchases motor fuel upon which the tax has been paid to
this state and who sells the same outside this state for use
outside this state or who uses the same on highways or waters
outside this state and pays a tax on such use or sells the same
to the United States government or any of its agencies may be
reimbursed in the amount of such tax as provided in this chapter. All claims
for refund of the tax paid on motor fuel sold
for export from the state or sold to the United States or any of
its agencies shall be made in such form and shall set forth such
information as the tax commissioner prescribes, and the claimant
shall satisfy the commissioner that the motor fuel has
been sold as stated and that the tax thereon has been paid. Claims for refund
of the tax paid on motor fuel sold to
the United States government or any of its agencies shall be
supported by an affidavit of the claimant and by a tax exemption
certificate executed by the vendee in such form as is prescribed
by the commissioner. Such claims for refund filed under this
section shall be certified and paid in the same manner as
provided in section 5735.14 of the Revised Code. The person shall file
with the tax commissioner an application for refund within one hundred
eighty
days year from the date of sale. The refund
authorized by this section shall be reduced by the cents per
gallon amount of any qualified fuel credit received under section
5735.145 of the Revised Code, as determined by the commissioner,
for each gallon of qualified fuel included in the total gallonage
of motor fuel upon which the refund is computed. Sec. 5735.23. (A) Out of receipts from the tax levied by
section 5735.05 of the Revised Code, the treasurer of state shall
place to the credit of the tax refund fund established by section
5703.052 of the Revised Code amounts equal to the refunds
certified by the tax commissioner pursuant to sections 5735.13,
5735.14, 5735.141, 5735.142, and 5735.16, and 5735.17 of the
Revised Code. The treasurer of state shall then transfer the amount
required by section
5735.051 of the Revised Code to the waterways safety fund and the
amount required by section 4907.472 of the Revised Code to the
grade crossing protection fund. (B) Except as provided in division (D) of this
section, each month the balance of the receipts from the tax
levied by section 5735.05 of the Revised Code shall be credited,
after receipt by the treasurer of state of
certification from
the commissioners of the sinking fund, as required by
section 5528.35 of the Revised Code,
that
there are sufficient moneys to the credit of the highway
obligations bond retirement fund to meet in full all payments of
interest, principal, and charges for the retirement of highway
obligations issued pursuant to Section 2i of Article VIII, Ohio
Constitution, and sections 5528.30 and 5528.31 of the Revised
Code due and payable during the current calendar year, as
follows: (1) To the state and local government highway distribution
fund, which is hereby created in the state treasury, an amount
that is the same percentage of the balance to be credited as that
portion of the tax per gallon determined under division (B)(2)(a)
of section 5735.06 of the Revised Code is of the total tax per
gallon determined under divisions (B)(2)(a) and (b) of that
section. (2) After making the distribution to the state and local
government highway distribution fund, the remainder shall be
credited as follows: (a) Thirty per cent to the gasoline excise tax fund for
distribution pursuant to division (A)(1) of section 5735.27 of
the Revised Code; (b) Twenty-five per cent to the gasoline excise tax fund
for distribution pursuant to division (A)(3) of section 5735.27
of the Revised Code; (c) Except as provided in division (D) of this
section, forty-five per cent to the highway operating fund for
distribution pursuant to division (B)(1) of section 5735.27 of
the Revised Code. (C) From the balance in the state and local government
highway distribution fund on the last day of each month there
shall be paid the following amounts: (1) To the local transportation improvement program fund
created by section 164.14 of the Revised Code, an amount equal to
a fraction of the balance in the state and local government
highway distribution fund, the numerator of which fraction is one
and the denominator of which fraction is that portion of the tax
per gallon determined under division (B)(2)(a) of section 5735.06
of the Revised Code; (2) An amount equal to five cents multiplied by the number
of gallons of motor fuel sold at stations operated by the
Ohio turnpike commission, such gallonage to be certified by the
commission to the treasurer of state not later than the last day
of the month following. The funds paid to the commission
pursuant to this section shall be expended for the construction,
reconstruction, maintenance, and repair of turnpike projects,
except that the funds may not be expended for the construction of
new interchanges. The funds also may be expended for the
construction, reconstruction, maintenance, and repair of those
portions of connecting public roads that serve existing
interchanges and are determined by the commission and the
director of transportation to be necessary for the safe merging
of traffic between the turnpike and those public roads. The remainder of the balance shall be distributed as
follows on the fifteenth day of the following month: (a) Ten and seven-tenths per cent shall be paid to
municipal corporations for distribution pursuant to division
(A)(1) of section 5735.27 of the Revised Code and may be used for
any purpose for which payments received under that division may
be used. (b) Five per cent shall be paid to townships for
distribution pursuant to division (A)(5) of section 5735.27 of
the Revised Code and may be used for any purpose for which
payments received under that division may be used. (c) Nine and three-tenths per cent shall be paid to
counties for distribution pursuant to division (A)(3) of section
5735.27 of the Revised Code and may be used for any purpose for
which payments received under that division may be used. (d) Except as provided in division (D) of this
section, the balance shall be transferred to the highway
operating fund and used for the purposes set forth in division
(B)(1) of section 5735.27 of the Revised Code. (D) Beginning on the first day of September each year
and continuing until such time as the office of budget and management receives
certification from the commissioners of the sinking fund pursuant to division
(B) of section 5528.56 of the Revised Code, any amounts required to be credited or
transferred to the highway operating fund pursuant to division
(B)(2)(c) or (C)(2)(d) of this
section shall be credited or transferred to the highway capital improvements
bond service fund created in section 5528.55 of the Revised Code. 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 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; but does not include transactions by which
telecommunications service is paid for by using a prepaid authorization number
or prepaid telephone calling card; (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
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. 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 any 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. (UU)(1) "Prepaid
authorization number" means a numeric or alphanumeric
combination that represents a prepaid account that can be used
by the account holder solely to obtain telecommunications
service, and includes any renewals or increases in the prepaid
account. (2) "Prepaid telephone calling card" means a tangible
item that contains a prepaid authorization number that can be
used solely to obtain telecommunications service, and includes
any renewals or increases in the prepaid account. Sec. 5739.02. For the purpose of providing revenue with
which to meet the needs of the state, for the use of the general revenue
fund of the state, for the purpose of securing a thorough and
efficient system of common schools throughout the state, for
the purpose of affording revenues, in addition to those from
general property taxes, permitted under constitutional
limitations, and from other sources, for the support of local
governmental functions, and for the purpose of reimbursing the
state for the expense of administering this chapter, an excise
tax is hereby levied on each retail sale made in this state. (A) The tax shall be collected pursuant to the schedules
in section 5739.025 of the Revised Code. The tax applies and is collectible when the sale is made,
regardless of the time when the price is paid or delivered. In the case of a sale, the price of which consists in whole
or in part of rentals for the use of the thing transferred, the
tax, as regards such rentals, shall be measured by the
installments thereof. In the case of a sale of a service defined under division
(MM) or (NN) of section 5739.01 of the Revised Code, the price of
which consists in whole or in part of a membership for the
receipt of the benefit of the service, the tax applicable to the
sale shall be measured by the installments thereof. (B) The tax does not apply to the following: (1) Sales to the state or any of its political
subdivisions, or to any other state or its political subdivisions
if the laws of that state exempt from taxation sales made to this
state and its political subdivisions; (2) Sales of food for human consumption off the premises
where sold; (3) Sales of food sold to students only in a cafeteria,
dormitory, fraternity, or sorority maintained in a private,
public, or parochial school, college, or university; (4) Sales of newspapers, and of magazine subscriptions
shipped by second class mail, and sales or transfers of magazines
distributed as controlled circulation publications; (5) The furnishing, preparing, or serving of meals without
charge by an employer to an employee provided the employer
records the meals as part compensation for services performed or
work done; (6) Sales of motor fuel upon receipt, use,
distribution, or sale of which in this state a tax is imposed by
the law of this state, but this exemption shall not apply to the
sale of motor fuel on which a refund of the tax is
allowable under section 5735.14 of the Revised Code; and the tax
commissioner may deduct the amount of tax levied by this section
applicable to the price of motor fuel when granting a
refund of motor fuel tax pursuant to section 5735.14 of
the Revised Code and shall cause the amount deducted to be paid
into the general revenue fund of this state; (7) Sales of natural gas by a natural gas company, of water by a water-works
company, or of steam by a heating company, if in each case the
thing sold is delivered to consumers through pipes or
conduits, and all sales of communications services by a telephone
or telegraph company, all terms as defined in section 5727.01 of
the Revised Code; (8) Casual sales by a person, or auctioneer employed
directly by the person to conduct such sales, except as to
such sales of
motor vehicles, watercraft or outboard motors required to be
titled under section 1548.06 of the Revised Code, watercraft
documented with the United States coast guard, snowmobiles, and
all-purpose vehicles as defined in section 4519.01 of the Revised
Code; (9) Sales of services or tangible personal property, other
than motor vehicles, mobile homes, and manufactured
homes, by churches, organizations exempt from taxation under
section 501(c)(3) of the Internal Revenue
Code of 1986, or by
nonprofit organizations operated exclusively for charitable
purposes as defined in division (B)(12) of this section, provided
that the number of days on which such tangible personal property
or services, other than items never subject to the tax, are sold
does not exceed six in any calendar year. If the number of days
on which such sales are made exceeds six in any calendar year,
the church or organization shall be considered to be engaged in
business and all subsequent sales by it shall be subject to the
tax. In counting the number of days, all sales by groups within
a church or within an organization shall be considered to be
sales of that church or organization, except that sales made by
separate student clubs and other groups of students of a primary
or secondary school, and sales made by a parent-teacher
association, booster group, or similar organization that raises
money to support or fund curricular or extracurricular activities
of a primary or secondary school, shall not be considered to be
sales of such school, and sales by each such club, group,
association, or organization shall be counted separately for
purposes of the six-day limitation. This division does not apply
to sales by a noncommercial educational radio or television
broadcasting station. (10) Sales not within the taxing power of this state under
the Constitution of the United States; (11) The transportation of persons or property, unless the
transportation is by a private investigation and security
service; (12) Sales of tangible personal property or services to
churches, to organizations exempt from taxation under section
501(c)(3) of the Internal Revenue Code of 1986, and to any other
nonprofit organizations operated exclusively for charitable
purposes in this state, no part of the net income of which inures
to the benefit of any private shareholder or individual, and no
substantial part of the activities of which consists of carrying
on propaganda or otherwise attempting to influence legislation;
sales to offices administering one or more homes for the aged or
one or more hospital facilities exempt under section 140.08 of
the Revised Code; and sales to organizations described in
division (D) of section 5709.12 of the Revised Code. "Charitable purposes" means the relief of poverty; the
improvement of health through the alleviation of illness,
disease, or injury; the operation of an organization
exclusively
for the provision of professional, laundry, printing, and
purchasing services to hospitals or charitable institutions;
the
operation of a home for the aged, as defined in section 5701.13
of the Revised Code; the operation of a radio or television
broadcasting station that is licensed by the federal
communications commission as a noncommercial educational radio or
television station; the operation of a nonprofit animal
adoption service or a county humane society; the promotion of
education by an institution of learning that maintains a faculty of
qualified instructors, teaches regular continuous courses of study, and
confers a recognized diploma upon completion of a specific
curriculum; the operation of a parent-teacher association,
booster group, or similar organization primarily engaged in the
promotion and support of the curricular or extracurricular
activities of a primary or secondary school; the operation of a
community or area center in which presentations in music,
dramatics, the arts, and related fields are made in order to
foster public interest and education therein; the production of
performances in music, dramatics, and the arts; or the
promotion of education by an organization engaged in carrying on research
in, or the dissemination of, scientific and technological
knowledge and information primarily for the public. Nothing in this division shall be deemed to exempt sales to
any organization for use in the operation or carrying on of a
trade or business, or sales to a home for the aged for use in the
operation of independent living facilities as defined in division
(A) of section 5709.12 of the Revised Code. (13) Building and construction materials and services sold
to construction contractors for incorporation into a structure or
improvement to real property under a construction contract with
this state or a political subdivision thereof, or with the United
States government or any of its agencies; building and
construction materials and services sold to construction
contractors for incorporation into a structure or improvement to
real property that are accepted for ownership by this
state or
any of its political subdivisions, or by the United States
government or any of its agencies at the time of completion of
such structures or improvements; building and construction
materials sold to construction contractors for incorporation into
a horticulture structure or livestock structure for a person
engaged in the business of horticulture or producing livestock;
building materials and services sold to a construction contractor
for incorporation into a house of public worship or religious
education, or a building used exclusively for charitable purposes
under a construction contract with an organization whose purpose
is as described in division (B)(12) of this section; building materials and
services sold to a construction contractor for incorporation into a building
under a construction contract with an organization exempt from taxation under
section 501(c)(3) of the Internal Revenue
Code of 1986 when the building is to be used exclusively for the
organization's exempt purposes; building and
construction materials sold for incorporation into the original
construction of a sports facility under section 307.696 of the
Revised Code; and building and construction materials and
services sold to a construction contractor for incorporation into
real property outside this state if such materials and services,
when sold to a construction contractor in the state in which the
real property is located for incorporation into real property in
that state, would be exempt from a tax on sales levied by that
state; (14) Sales of ships or vessels or rail rolling stock used or to be
used principally in interstate or foreign commerce, and repairs,
alterations, fuel, and lubricants for such ships or vessels or rail rolling
stock; (15) Sales to persons engaged in any of the activities
mentioned in division (E)(2) or (9) of section 5739.01 of the
Revised Code, to persons engaged in making retail sales, or to
persons who purchase for sale from a manufacturer tangible
personal property that was produced by the manufacturer in
accordance with specific designs provided by the purchaser, of
packages, including material and parts for packages, and of
machinery, equipment, and material for use primarily in packaging
tangible personal property produced for sale by or on the order
of the person doing the packaging, or sold at retail. "Packages"
includes bags, baskets, cartons, crates, boxes, cans, bottles,
bindings, wrappings, and other similar devices and containers, and
"packaging" means placing therein. (16) Sales of food to persons using food stamp coupons to
purchase the food. As used in division (B)(16) of this section,
"food" has the same meaning as in the "Food Stamp Act of 1977,"
91 Stat. 958, 7 U.S.C. 2012, as amended, and federal regulations
adopted pursuant to that act. (17) Sales to persons engaged in farming, agriculture,
horticulture, or floriculture, of tangible personal property for
use or consumption directly in the production by farming,
agriculture, horticulture, or floriculture of other tangible
personal property for use or consumption directly in the
production of tangible personal property for sale by farming,
agriculture, horticulture, or floriculture; or material and parts
for incorporation into any such tangible personal property for
use or consumption in production; and of tangible personal
property for such use or consumption in the conditioning or
holding of products produced by and for such use, consumption, or
sale by persons engaged in farming, agriculture, horticulture, or
floriculture, except where such property is incorporated into real
property; (18) Sales of drugs dispensed by a licensed
pharmacist
upon the order of a licensed health professional
authorized to prescribe drugs to a human being, as the term "licensed health
professional authorized to prescribe drugs" is defined in section 4729.01
of the Revised Code;
insulin as recognized in the official
United States pharmacopoeia; urine and blood testing materials
when used by diabetics or persons with hypoglycemia to test for
glucose or acetone; hypodermic syringes and needles when used by
diabetics for insulin injections; epoetin alfa when purchased for use in
the treatment of persons with end-stage renal disease; hospital
beds when purchased
for use by persons with medical problems for medical purposes;
and oxygen and oxygen-dispensing equipment when purchased for use
by persons with medical problems for medical purposes; (19) Sales of artificial limbs or portion thereof, breast
prostheses, and other prosthetic devices for humans; braces or
other devices for supporting weakened or nonfunctioning parts of
the human body; wheelchairs; devices used to lift wheelchairs
into motor vehicles and parts and accessories to such devices;
crutches or other devices to aid human perambulation; and items
of tangible personal property used to supplement impaired
functions of the human body such as respiration, hearing, or
elimination. No exemption under this division shall be allowed
for nonprescription drugs, medicines, or remedies; items or
devices used to supplement vision; items or devices whose
function is solely or primarily cosmetic; or physical fitness
equipment. This division does not apply to sales to a physician
or medical facility for use in the treatment of a patient. (20) Sales of emergency and fire protection vehicles and
equipment to nonprofit organizations for use solely in providing
fire protection and emergency services for political subdivisions
of the state; (21) Sales of tangible personal property manufactured in
this state, if sold by the manufacturer in this state to a
retailer for use in the retail business of the retailer outside of
this state and
if possession is taken from the manufacturer by the purchaser
within this state for the sole purpose of immediately removing
the same from this state in a vehicle owned by the purchaser; (22) Sales of services provided by the state or any of its
political subdivisions, agencies, instrumentalities,
institutions, or authorities, or by governmental entities of the
state or any of its political subdivisions, agencies,
instrumentalities, institutions, or authorities; (23) Sales of motor vehicles to nonresidents of this state
upon the presentation of an affidavit executed in this state by
the nonresident purchaser affirming that the purchaser is a
nonresident of this state, that possession of the motor vehicle
is taken in this state for the sole purpose of immediately
removing it from this state, that the motor vehicle will be
permanently titled and registered in another state, and that the
motor vehicle will not be used in this state; (24) Sales to persons engaged in the preparation of eggs
for sale of tangible personal property used or consumed directly
in such preparation, including such tangible personal property
used for cleaning, sanitizing, preserving, grading, sorting, and
classifying by size; packages, including material and parts for
packages, and machinery, equipment, and material for use in
packaging eggs for sale; and handling and transportation
equipment and parts therefor, except motor vehicles licensed to
operate on public highways, used in intraplant or interplant
transfers or shipment of eggs in the process of preparation for
sale, when the plant or plants within or between which such
transfers or shipments occur are operated by the same person.
"Packages" includes containers, cases, baskets, flats, fillers,
filler flats, cartons, closure materials, labels, and labeling
materials, and "packaging" means placing therein. (25)(a) Sales of water to a consumer for residential use,
except the sale of bottled water, distilled water, mineral water,
carbonated water, or ice; (b) Sales of water by a nonprofit corporation engaged
exclusively in the treatment, distribution, and sale of water to
consumers, if such water is delivered to consumers through pipes
or tubing. (26) Fees charged for inspection or reinspection of motor
vehicles under section 3704.14 of the Revised Code; (27) Sales of solar, wind, or hydrothermal energy systems
that meet the guidelines established under division (B) of
section 1551.20 of the Revised Code, components of such systems
that are identified under division (B) or (D) of that section, or
charges for the installation of such systems or components, made
during the period from August 14, 1979, through December 31,
1985; (28) Sales to persons licensed to conduct a food service
operation pursuant to section 3717.43 of the Revised Code, of
tangible personal property primarily used directly for the following:
(a) To prepare food for human consumption for sale; (b) To preserve food that has been or will be prepared
for human consumption for sale by the food service operator, not
including tangible personal property used to display food for
selection by the consumer; (c) To clean tangible personal property used to prepare or
serve food for human consumption for sale. (29)(28) Sales of animals by nonprofit animal adoption
services or county humane societies;
(30)(29) Sales of services to a corporation described in
division (A) of section 5709.72 of the Revised Code, and sales of
tangible personal property that qualifies for exemption from
taxation under section 5709.72 of the Revised Code;
(31)(30) Sales and installation of agricultural land tile, as
defined in division (B)(5)(a) of section 5739.01 of the Revised
Code;
(32)(31) Sales and erection or installation of portable grain
bins, as defined in division (B)(5)(b) of section 5739.01 of the
Revised Code;
(33)(32) The sale, lease, repair, and maintenance of, parts
for, or items attached to or incorporated in, motor
vehicles
that
are primarily used for transporting tangible personal property by
a person engaged in highway transportation for hire;
(34)(33) Sales to the state headquarters of any veterans'
organization in Ohio that is either incorporated and issued a
charter by the congress of the United States or is recognized by
the United States veterans administration, for use by the
headquarters;
(35)(34) Sales to a telecommunications service vendor of
tangible personal property and services used directly and
primarily in transmitting, receiving, switching, or recording any
interactive, two-way electromagnetic communications, including
voice, image, data, and information, through the use of any
medium, including, but not limited to, poles, wires, cables,
switching equipment, computers, and record storage devices and
media, and component parts for the tangible personal property.
The exemption provided in division (B)(35)(34) of this section
shall
be in lieu of all other exceptions under division (E)(2) of
section 5739.01 of the Revised Code to which a telecommunications
service vendor may otherwise be entitled based upon the use of
the thing purchased in providing the telecommunications service.
(36)(35) Sales of investment metal bullion and investment
coins. "Investment metal bullion" means any elementary precious
metal that has been put through a process of smelting or
refining, including, but not limited to, gold, silver, platinum,
and palladium, and which is in such state or condition that its
value depends upon its content and not upon its form. "Investment metal
bullion" does not include fabricated precious
metal that has been processed or manufactured for one or
more
specific and customary industrial, professional, or artistic
uses. "Investment coins" means numismatic coins or other forms
of money and legal tender manufactured of gold, silver, platinum,
palladium, or other metal under the laws of the United States or
any foreign nation with a fair market value greater than any
statutory or nominal value of such coins.
(37)(36)(a) Sales where the purpose of the consumer is to use
or consume the things transferred in making retail sales and
consisting of newspaper inserts, catalogues, coupons, flyers,
gift certificates, or other advertising material that
prices and
describes tangible personal property offered for retail sale.
(b) Sales to direct marketing vendors of preliminary
materials such as photographs, artwork, and typesetting that will
be used in printing advertising material; of printed matter that
offers free merchandise or chances to win sweepstake prizes and
that is mailed to potential customers with advertising material
described in division (B)(37)(36)(a) of this section; and of
equipment such as telephones, computers, facsimile machines, and
similar tangible personal property primarily used to accept
orders for direct marketing retail sales. (c) Sales of automatic food vending machines that preserve
food with a shelf life of forty-five days or less by
refrigeration and dispense it to the consumer. For purposes of division (B)(37)(36) of this section, "direct
marketing" means the method of selling where consumers order
tangible personal property by United States mail, delivery
service, or telecommunication and the vendor delivers or ships
the tangible personal property sold to the consumer from a
warehouse, catalogue distribution center, or similar fulfillment
facility by means of the United States mail, delivery service, or
common carrier. (38)(37) Sales to a person engaged in the business of
horticulture or producing livestock of materials to be
incorporated into a horticulture structure or livestock
structure;
(39)(38) The sale of a motor vehicle that is used exclusively
for a vanpool
ridesharing arrangement to persons participating in the vanpool ridesharing
arrangement when the vendor is selling the vehicle pursuant to a contract
between the vendor and the department of transportation;
(40)(39) Sales of personal computers, computer monitors,
computer keyboards,
modems, and other peripheral computer equipment to an individual who is
licensed or certified to teach in an elementary or a secondary school in this
state for use by that individual in preparation for teaching elementary or
secondary school students;
(41)(40) Sales to a professional racing team of any of the
following:
(a) Motor racing vehicles; (b) Repair services for motor racing
vehicles; (c) Items of property that are
attached to or incorporated in motor racing vehicles, including
engines, chassis, and all other components of the vehicles, and
all spare, replacement, and rebuilt parts or components of the
vehicles; except not including tires, consumable fluids, paint,
and accessories consisting of instrumentation sensors and
related items added to the vehicle to collect and transmit data
by means of telemetry and other forms of communication. (42)(41) Sales of used manufactured homes and used mobile
homes, as
defined in section 5739.0210 of the Revised Code, made on or after
January 1, 2000;
(43)(42) Sales of tangible personal property and services to
a
provider of electricity used or consumed directly and primarily in
generating, transmitting, or distributing electricity for use by others,
including property that is or is to be incorporated into and will become
a part of the consumer's production, transmission, or distribution
system and that retains its classification as tangible personal
property after incorporation; fuel or power used in the
production, transmission, or distribution of electricity; and
tangible personal property and services used in the repair and
maintenance of the production, transmission, or distribution
system, including only those motor vehicles as are specially
designed and equipped for such use. The exemption provided in
this division shall be in lieu of all other exceptions in division
(E)(2) of section 5739.01 of the Revised Code to
which a provider
of electricity may otherwise be entitled based on the use of the tangible
personal property or service purchased in generating, transmitting, or
distributing electricity.
For the purpose of the proper administration of this
chapter, and to prevent the evasion of the tax, it is presumed
that all sales made in this state are subject to the tax until
the contrary is established. As used in this section, except in division (B)(16) of this
section, "food" includes cereals and cereal products, milk and
milk products including ice cream, meat and meat products, fish
and fish products, eggs and egg products, vegetables and
vegetable products, fruits, fruit products, and pure fruit
juices, condiments, sugar and sugar products, coffee and coffee
substitutes, tea, and cocoa and cocoa products. It does not
include: spirituous or malt liquors; soft drinks; sodas and
beverages that are ordinarily dispensed at bars and soda
fountains or in connection therewith, other than coffee, tea, and
cocoa; root beer and root beer extracts; malt and malt extracts;
mineral oils, cod liver oils, and halibut liver oil; medicines,
including tonics, vitamin preparations, and other products sold
primarily for their medicinal properties; and water, including
mineral, bottled, and carbonated waters, and ice. (C) The levy of an excise tax on transactions by which
lodging by a hotel is or is to be furnished to transient guests
pursuant to this section and division (B) of section 5739.01 of
the Revised Code does not prevent any of the following: (1) A municipal corporation or township from levying an
excise tax for any lawful purpose not to exceed three per cent on
transactions by which lodging by a hotel is or is to be furnished
to transient guests in addition to the tax levied by this
section. If a municipal corporation or township repeals a tax
imposed under division (C)(1) of this section and a county in
which the municipal corporation or township has territory has a
tax imposed under division (C) of section 5739.024 of the Revised
Code in effect, the municipal corporation or township may not
reimpose its tax as long as that county tax remains in effect. A
municipal corporation or township in which a tax is levied under
division (B)(2) of section 351.021 of the Revised Code may not
increase the rate of its tax levied under division (C)(1) of this
section to any rate that would cause the total taxes levied under
both of those divisions to exceed three per cent on any lodging
transaction within the municipal corporation or township. (2) A municipal corporation or a township from levying an
additional excise tax not to exceed three per cent on such
transactions pursuant to division (B) of section 5739.024 of the
Revised Code. Such tax is in addition to any tax imposed under
division (C)(1) of this section. (3) A county from levying an excise tax pursuant to division (A) of
section 5739.024 of the Revised Code. (4) A county from levying an excise tax not to exceed
three per cent of such transactions pursuant to division (C) of
section 5739.024 of the Revised Code. Such a tax is in addition
to any tax imposed under division (C)(3) of this section. (5) A convention facilities authority, as defined in
division (A) of section 351.01 of the Revised Code, from levying
the excise taxes provided for in division (B) of section 351.021
of the Revised Code. (6) A county from levying an excise tax not to exceed one
and one-half per cent of such transactions pursuant to division
(D) of section 5739.024 of the Revised Code. Such tax is in
addition to any tax imposed under division (C)(3) or (4) of this
section. (7) A county from levying an excise tax not to exceed one
and one-half per cent of such transactions pursuant to division
(E) of section 5739.024 of the Revised Code. Such a tax is in
addition to any tax imposed under division (C)(3), (4), or (6) of
this section. (D) The levy of this tax on retail sales of recreation and sports
club service shall not prevent a municipal corporation from levying any tax on
recreation and sports club dues or on any income generated by recreation and
sports club dues. Sec. 5739.03. Except as provided in section 5739.05 of the
Revised Code, the tax imposed by or pursuant to section 5739.02,
5739.021, 5739.023, or 5739.026 of the Revised Code shall be paid
by the consumer to the vendor, and each vendor shall collect from
the consumer, as a trustee for the state of Ohio, the full and
exact amount of the tax payable on each taxable sale, in the
manner and at the times provided as follows: (A) If the price is, at or prior to the provision of the
service or the delivery of possession of the thing sold to the
consumer, paid in currency passed from hand to hand by the
consumer or his the consumer's agent to the vendor or his
the vendor's agent, the vendor or
his the vendor's agent shall collect the tax with and at the
same time as the
price; (B) If the price is otherwise paid or to be paid, the
vendor or his the vendor's agent shall, at or prior to the
provision of the
service or the delivery of possession of the thing sold to the
consumer, charge the tax imposed by or pursuant to section
5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code to
the account of the consumer, which amount shall be collected by
the vendor from the consumer in addition to the price. Such sale
shall be reported on and the amount of the tax applicable thereto
shall be remitted with the return for the period in which the
sale is made, and the amount of the tax shall become a legal
charge in favor of the vendor and against the consumer. If any sale is claimed to be exempt under division (E) of
section 5739.01 of the Revised Code or under section 5739.02 of
the Revised Code, with the exception of divisions (B)(1) to (11)
or (29)(28) of section 5739.02 of the Revised Code, the
consumer must
furnish to the vendor, and the vendor must obtain from the
consumer, a certificate specifying the reason that the sale is
not legally subject to the tax. If the transaction is claimed to
be exempt under division (B)(13) of section 5739.02 of the
Revised Code, the exemption certificate shall be signed by both
the contractor and his the contractee and such contractee shall
be
deemed to be the consumer of all items purchased under such claim
of exemption in the event it is subsequently determined that the
exemption is not properly claimed. The certificate shall be in
such form as the tax commissioner by regulation prescribes. If
no certificate is furnished or obtained within the period for
filing the return for the period in which such sale is
consummated, it shall be presumed that the tax applies. The
failure to have so furnished, or to have so obtained, a
certificate shall not prevent a vendor or consumer from
establishing that the sale is not subject to the tax within sixty
one hundred twenty
days of the giving of notice by the commissioner of intention to
levy an assessment, in which event the tax shall not apply. Certificates need not be obtained nor furnished where the
identity of the consumer is such that the transaction is never
subject to the tax imposed or where the item of tangible personal
property sold or the service provided is never subject to the tax
imposed, regardless of use, or when the sale is in interstate
commerce. (C) As used in this division, "contractee" means a person
who seeks to enter or enters into a contract or agreement with a
contractor or vendor for the construction of real property or for
the sale and installation onto real property of tangible personal
property. Any contractor or vendor may request from any contractee a
certification of what portion of the property to be transferred
under such contract or agreement is to be incorporated into the
realty and what portion will retain its status as tangible
personal property after installation is completed. The
contractor or vendor shall request the certification by certified
mail delivered to the contractee, return receipt requested. Upon
receipt of such request and prior to entering into the contract
or agreement, the contractee shall furnish to the contractor or
vendor a certification sufficiently detailed to enable the
contractor or vendor to ascertain the resulting classification of
all materials purchased or fabricated by the contractor or vendor
and transferred to the contractee. This requirement applies to a
contractee regardless of whether the contractee holds a direct
payment permit under section 5739.031 of the Revised Code or
furnishes to the contractor or vendor an exemption certificate as
provided under this section. For the purposes of the taxes levied by this chapter and
Chapter 5741. of the Revised Code, the contractor or vendor may
in good faith rely on the contractee's certification.
Notwithstanding division (B) of section 5739.01 of the Revised
Code, if the tax commissioner determines that certain property
certified by the contractee as tangible personal property
pursuant to this division is, in fact, real property, the
contractee shall be considered to be the consumer of all
materials so incorporated into that real property and shall be
liable for the applicable tax, and the contractor or vendor shall
be excused from any liability on those materials. If a contractee fails to provide such certification upon
the request of the contractor or vendor, the contractor or vendor
shall comply with the provisions of this chapter and Chapter
5741. of the Revised Code without the certification. If the tax
commissioner determines that such compliance has been performed
in good faith and that certain property treated as tangible
personal property by the contractor or vendor is, in fact, real
property, the contractee shall be considered to be the consumer
of all materials so incorporated into that real property and
shall be liable for the applicable tax and the construction
contractor or vendor shall be excused from any liability on those
materials. This division does not apply to any contract or agreement
where the tax commissioner determines as a fact that a
certification under this division was made solely on the decision
or advice of the contractor or vendor. (D) Notwithstanding division (B) of section 5739.01 of the
Revised Code, whenever the total rate of tax imposed under this
chapter is increased after the date after a construction contract
is entered into, the contractee shall reimburse the construction
contractor for any additional tax paid on tangible property
consumed or services received pursuant to the contract. (E) A vendor who files a petition for reassessment
contesing CONTESTING the assessment of tax on sales for which the
vendor obtained no valid exemption certificates and for which the
vendor failed to establish that the sales were properly not
subject to the tax during the sixty-day one-hundred-twenty-day
period allowed under
division (B) of this section, may present to the tax commissioner
additional evidence to prove that the sales were properly subject
to a claim of exception or exemption. The vendor shall file such
evidence within ninety days of the receipt by the vendor of the
notice of assessment, except that, upon application and for
reasonable cause, the period for submitting such evidence shall
be extended thirty days. The commissioner shall consider such additional evidence in
reaching the final determination on the assessment and petition
for reassessment. (F) Whenever a vendor refunds to the consumer the full
price of an item of tangible personal property on which the tax
imposed under this chapter has been paid, he the vendor shall
also refund
the full amount of the tax paid. Sec. 5739.032. (A) If the total amount of tax required to
be paid by a permit holder under section 5739.031 of the Revised
Code for any calendar year indicated in the following schedule
equals or exceeds the amounts prescribed for that year in the
schedule, the permit holder shall remit each monthly tax payment
in the second ensuing and each succeeding year by electronic
funds transfer as prescribed by division (B) of this section.
Year | | 1992 | | 1993 and thereafter | | 2000 |
| | | | through 1999 | | and thereafter |
Tax payment | | $1,200,000 | | $600,000 | | $60,000 |
If a permit holder's tax payment for each of two
consecutive years beginning with 1993 2000 is less than six
hundred sixty
thousand dollars, the permit holder is relieved of the
requirement to remit taxes by electronic funds transfer for the
year that next follows the second of the consecutive years in
which the tax payment is less than six hundred sixty thousand
dollars,
and is relieved of that requirement for each succeeding year
unless the tax payment in a subsequent year equals or exceeds six
hundred sixty thousand dollars. The tax commissioner shall notify each permit holder
required to remit taxes by electronic funds transfer of the
permit holder's obligation to do so, shall maintain an updated
list of those permit holders, and shall timely certify the list
and any additions thereto or deletions therefrom to the treasurer
of state. Failure by the tax commissioner to notify a permit
holder subject to this section to remit taxes by electronic funds
transfer does not relieve the permit holder of its obligation to
remit taxes by electronic funds transfer. (B) Permit holders required by division (A) of this
section to remit payments by electronic funds transfer shall
remit such payments to the treasurer of state in the manner
prescribed by rules adopted by the treasurer under section
113.061 of the Revised Code and on or before the dates specified
under section 5739.031 of the Revised Code. The payment of taxes
by electronic funds transfer does not affect a permit holder's
obligation to file the monthly return as required under section
5739.031 of the Revised Code. A permit holder required by this section to remit taxes by
electronic funds transfer may apply to the treasurer of state in
the manner prescribed by the treasurer to be excused from that
requirement. The treasurer of state may excuse the permit holder
from remittance by electronic funds transfer for good cause shown
for the period of time requested by the permit holder or for a
portion of that period. The treasurer shall notify the tax
commissioner and the permit holder of the treasurer's decision as
soon as is practicable. (C) If a permit holder required by this section to remit
taxes by electronic funds transfer remits those taxes by some
means other than by electronic funds transfer as prescribed by
this section and the rules adopted by the treasurer of state, and
the treasurer determines that such failure was not due to
reasonable cause or was due to willful neglect, the treasurer
shall notify the tax commissioner of the failure to remit by
electronic funds transfer and shall provide the commissioner with
any information used in making that determination. The tax
commissioner may collect an additional charge by assessment in
the manner prescribed by section 5739.13 of the Revised Code.
The additional charge shall equal five per cent of the amount of
the taxes required to be paid by electronic funds transfer, but
shall not exceed five thousand dollars. Any additional charge
assessed under this section is in addition to any other penalty
or charge imposed under this chapter, and shall be considered as
revenue arising from taxes imposed under this chapter. The tax
commissioner may remit all or a portion of such a charge and may
adopt rules governing such remission. No additional charge shall be assessed under this division
against a permit holder that has been notified of its obligation
to remit taxes under this section and that remits its first two
tax payments after such notification by some means other than
electronic funds transfer. The additional charge may be assessed
upon the remittance of any subsequent tax payment that the permit
holder remits by some means other than electronic funds transfer. 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)(D) 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)(E) If the vendor provides a service specified in division
(B)(3)(e), (g), (h), (j), (k), (l), or
(m) of section 5739.01 of the Revised Code, the sale is conclusively
determined to be consummated at the
location of the consumer where the service is performed or
received.
(G)(F) Except as provided in division (J)(I)
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)(G) 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)(H) If the vendor sells a warranty, maintenance or service
contract, or similar agreement as specified in division (B)(7) of
section 5739.01 of the Revised Code and the vendor is a delivery
vendor, the 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)(I) Except as otherwise provided in this division, if the
vendor
sells a prepaid authorization number 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. If the vendor sells
a prepaid authorization number or prepaid telephone calling card
through a telephone call, electronic commerce, or any other form
of remote commerce, the sale is conclusively determined to be
made at the consumer's shipping address, or, if there is no item
shipped, at the consumer's billing address.
Sec. 5739.12. Each person who has or is required to have a
vendor's license, on or before the twenty-third day of each
month, shall make and file a return for the preceding month, on
forms prescribed by the tax commissioner, and shall pay the tax
shown on the return to be due. The return shall show the amount
of tax due from the vendor to the state for the period covered by
the return and such other information as the commissioner deems
necessary for the proper administration of this chapter. The
commissioner may extend the time for making and filing returns
and paying the tax, and may require that the return for the last
month of any annual or semiannual period, as determined by the
commissioner, be a reconciliation return detailing the vendor's
sales activity for the preceding annual or semiannual period.
The reconciliation return shall be filed by the last day of the
month following the last month of the annual or semiannual
period. The commissioner may remit all or any part of amounts or
penalties which may become due under this chapter and may adopt
rules relating thereto. Such return shall be filed by mailing
the same to the treasurer of state, together with payment of the
amount of tax shown to be due thereon after deduction of any
discount provided for under this section. The return shall be
considered filed when received by the treasurer of state, and the
payment shall be considered made when received by the treasurer
of state or when credited to an account designated by the
treasurer of state. If the return is filed and the amount of tax
shown thereon to be due is paid on or before the date such return
is required to be filed, the vendor shall be entitled to a
discount of three-fourths of one per cent of the amount shown to
be due on the return. Amounts paid to the clerk of courts
pursuant to section 4505.06 of the Revised Code shall be subject
to the three-fourths of one per cent discount. The discount shall be in
consideration for prompt payment to the clerk of courts and for
other services performed by the vendor in the collection of the
tax. Upon application to the commissioner, a vendor who is
required to file monthly returns may be relieved of the
requirement to report and pay the actual tax due, provided that
the vendor agrees to remit to the treasurer of state payment of
not less than an amount determined by the commissioner to be the
average monthly tax liability of the vendor, based upon a review
of the returns or other information pertaining to such vendor for
a period of not less than six months nor more than two years
immediately preceding the filing of the application. Vendors who
agree to the above conditions shall make and file an annual or
semiannual reconciliation return, as prescribed by the
commissioner. The reconciliation return shall be filed by
mailing or delivering the same to the treasurer of state,
together with payment of the amount of tax shown to be due
thereon after deduction of any discount provided in this section.
Failure of a vendor to comply with any of the above conditions
may result in immediate reinstatement of the requirement of
reporting and paying the actual tax liability on each monthly
return, and the commissioner may at his the commissioner's
discretion deny the vendor the right to report and pay based upon the average
monthly
liability for a period not to exceed two years. The amount
determined by the commissioner to be the average monthly tax
liability of a vendor may be adjusted, based upon a review of the
returns or other information pertaining to the vendor for a
period of not less than six months nor more than two years
preceding such adjustment. The commissioner may authorize vendors whose tax liability
is not such as to merit monthly returns, as determined by the
commissioner upon the basis of administrative costs to the state,
to make and file returns at less frequent intervals. When
returns are filed at less frequent intervals in accordance with
such a determination, the vendor shall be allowed the discount of
three-fourths of one per cent in consideration for prompt payment
with the return, provided the return is filed together with
payment of the amount of tax shown to be due thereon, at the time
specified by the commissioner. The treasurer of state shall stamp or otherwise mark on all
returns the date received by him the treasurer of state and
shall also show thereon by
stamp or otherwise the amount of payment received for the period
for which the return is filed. Thereafter, the treasurer of
state shall immediately transmit all returns filed under this
section to the commissioner. Any vendor who fails to file a
return or pay the full amount of the tax shown on the return to
be due under this section and the rules of the commissioner
shall may, for each such return he the vendor
fails to file or each
such tax he the vendor fails to pay in full as shown on the
return within the period
prescribed by this section and the rules of the commissioner,
be required to forfeit and pay into the state treasury an additional
charge of not exceeding
fifty dollars or ten per cent of the tax required to be paid for
the reporting period, whichever is greater, as revenue arising
from the tax imposed by this chapter, and such sum may be
collected by assessment in the manner provided in section 5739.13
of the Revised Code. The commissioner may remit all or a portion
of the additional charge and may adopt rules relating thereto to
the imposition and remission of the additional charge. If the amount required to be collected by a vendor from
consumers is in excess of five per cent of his the vendor's
receipts from
sales which are taxable under section 5739.02 of the Revised
Code, or in the case of sales subject to a tax levied pursuant to
section 5739.021, 5739.023, or 5739.026 of the Revised Code, in
excess of the percentage equal to the aggregate rate of such
taxes and the tax levied by section 5739.02 of the Revised Code,
such excess shall be remitted along with the remittance of the
amount of tax due under section 5739.10 of the Revised Code. The commissioner, if he the commissioner deems it necessary in
order to
insure the payment of the tax imposed by this chapter, may
require returns and payments to be made for other than monthly
periods. The returns shall be signed by the vendor or his the
vendor's authorized agent. Any vendor required to file a return and pay the tax under
this section whose total payment in any year indicated in
division (A) of section 5739.122 of the Revised Code equals or
exceeds the amount shown in that division shall make each payment
required by this section in the second ensuing and each
succeeding year by electronic funds transfer as prescribed by
section 5739.122 of the Revised Code, except as otherwise
prescribed by that section. Sec. 5739.122. (A) If the total amount of tax required to
be paid by a vendor under section 5739.12 of the Revised Code for
any calendar year indicated in the following schedule equals or
exceeds the amounts prescribed for that year in the schedule, the
vendor shall remit each monthly tax payment in the second ensuing
and each succeeding tax year by electronic funds transfer as
prescribed by divisions (B) and (C) of this section.
Year | | 1992 | | 1993 and thereafter | | 2000 |
| | | | through 1999 | | and thereafter |
Tax payment | | $1,200,000 | | $600,000 | | $60,000 |
If a vendor's tax payment for each of two consecutive years
beginning with 1993 2000 is less than six hundred
sixty thousand dollars,
the vendor is relieved of the requirement to remit taxes by
electronic funds transfer for the year that next follows the
second of the consecutive years in which the tax payment is less
than six hundred sixty thousand dollars, and is relieved of that
requirement for each succeeding year unless the tax payment in a
subsequent year equals or exceeds six hundred sixty thousand
dollars. The tax commissioner shall notify each vendor required to
remit taxes by electronic funds transfer of the vendor's
obligation to do so, shall maintain an updated list of those
vendors, and shall timely certify the list and any additions
thereto or deletions therefrom to the treasurer of state.
Failure by the tax commissioner to notify a vendor subject to
this section to remit taxes by electronic funds transfer does not
relieve the vendor of its obligation to remit taxes by electronic
funds transfer. (B) Vendors required by division (A) of this section to
remit payments by electronic funds transfer shall remit such
payments to the treasurer of state in the manner prescribed by
rules adopted by the treasurer under section 113.061 of the
Revised Code and on or before the dates specified under section
5739.12 of the Revised Code. The payment of taxes by electronic
funds transfer does not affect a vendor's obligation to file the
monthly return as required under section 5739.12 of the Revised
Code. (C) Any vendor who files returns under section 5739.12 of
the Revised Code for two or more vendor's licenses shall remit
tax payments for those licenses by electronic funds transfer if
the sum of those payments exceeds the amount specified in
division (A) of this section. A vendor required by this section to remit taxes by
electronic funds transfer may apply to the treasurer of state in
the manner prescribed by the treasurer to be excused from that
requirement. The treasurer of state may excuse the vendor from
remittance by electronic funds transfer for good cause shown for
the period of time requested by the vendor or for a portion of
that period. The treasurer shall notify the tax commissioner and
the vendor of the treasurer's decision as soon as is practicable. (D) If a vendor required by this section to remit taxes by
electronic funds transfer remits those taxes by some means other
than by electronic funds transfer as prescribed by this section
and the rules adopted by the treasurer of state, and the
treasurer determines that such failure was not due to reasonable
cause or was due to willful neglect, the treasurer shall notify
the tax commissioner of the failure to remit by electronic funds
transfer and shall provide the commissioner with any information
used in making that determination. The tax commissioner may
collect an additional charge by assessment in the manner
prescribed by section 5739.13 of the Revised Code. The
additional charge shall equal five per cent of the amount of the
taxes required to be paid by electronic funds transfer, but shall
not exceed five thousand dollars. Any additional charge assessed
under this section is in addition to any other penalty or charge
imposed under this chapter, and shall be considered as revenue
arising from taxes imposed under this chapter. The tax
commissioner may remit all or a portion of such a charge and may
adopt rules governing such remission. No additional charge shall be assessed under this division
against a vendor that has been notified of its obligation to
remit taxes under this section and that remits its first two tax
payments after such notification by some means other than
electronic funds transfer. The additional charge may be assessed
upon the remittance of any subsequent tax payment that the vendor
remits by some means other than electronic funds transfer. Sec. 5739.13. (A) If any vendor collects the tax imposed
by or pursuant to section 5739.02, 5739.021, 5739.023, or
5739.026 of the Revised Code, and fails to remit the tax to the
state as prescribed, or on the sale of a motor vehicle,
watercraft, or outboard motor required to be titled, fails to
remit payment to a clerk of a court of common pleas as provided
in section 1548.06 or 4505.06 of the Revised Code, the
vendor shall be personally liable for any tax collected and not remitted.
The tax commissioner may make an assessment against such vendor
based upon any information in the commissioner's possession. If any vendor fails to collect the tax or any consumer
fails to pay the tax imposed by or pursuant to section 5739.02,
5739.021, 5739.023, or 5739.026 of the Revised Code, on any
transaction subject to the tax, the vendor or consumer shall be
personally liable for the amount of the tax applicable to the
transaction. If any vendor fails to pay the annual license
renewal fee required by division (E) of section 5739.17 of the
Revised Code, the vendor shall be personally liable for the
unpaid fee. The commissioner may make an assessment against
either the vendor or consumer, as the facts may require, based
upon any information in the commissioner's possession. An assessment against a vendor when the tax imposed by or
pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of
the Revised Code has not been collected or paid, shall not
discharge the purchaser's or consumer's liability to reimburse
the vendor for the tax applicable to such transaction. An assessment issued against either, pursuant to this
section, shall not be considered an election of remedies, nor a
bar to an assessment against the other for the tax applicable to
the same transaction, provided that no assessment shall be issued
against any person for the tax due on a particular transaction if
the tax on that transaction actually has been paid by another. The commissioner may make an assessment against any vendor
who fails to file a return or remit the proper amount of tax
required by this chapter, or against any consumer who fails to
pay the proper amount of tax required by this chapter. When
information in the possession of the commissioner indicates that
the amount required to be collected or paid under this chapter is
greater than the amount remitted by the vendor or paid by the
consumer, the commissioner may audit a sample of the vendor's
sales or the consumer's purchases for a representative period, to
ascertain the per cent of exempt or taxable transactions or the
effective tax rate and may issue an assessment based on the
audit. The commissioner shall make a good faith effort to reach
agreement with the vendor or consumer in selecting a
representative sample period. The tax commissioner may make an assessment, based on any
information in his possession, against any person who fails to
file a return or remit the proper amount of tax required by
section 5739.102 of the Revised Code. The tax commissioner may issue an assessment on any
transaction for which any tax imposed under this chapter or
Chapter 5741. of the Revised Code was due and unpaid on the date
the vendor or consumer was informed by an agent of the tax
commissioner of an investigation or audit. If the vendor or
consumer remits any payment of the tax for the period covered by
the assessment after the vendor or consumer was informed of the
investigation or audit, the payment shall be credited against the
amount of the assessment. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the party's authorized agent
having knowledge of the facts, the assessment shall become final and
the amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the commissioner's
final determination on the petitioner by personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the place of business of the party assessed is
located or the county in which the party assessed resides. If
the party assessed maintains no place of business in this state
and is not a resident of this state, the certified copy of the
entry may be filed in the office of the clerk of the court of
common pleas of Franklin county. The clerk, immediately upon the filing of such entry, shall
enter a judgment for the state against the party assessed in the
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for state,
county, and transit authority retail sales tax" or, if
appropriate, "special judgments for resort area
excise tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment
except as otherwise provided in this chapter. The portion of the assessment not paid within
thirty sixty days after the date the assessment was issued shall
bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code
from the day the tax commissioner issues the assessment
until the assessment is paid. Interest shall be paid in the
same manner as the tax and may be collected by issuing an
assessment under this section. (D) All money collected by the commissioner under this
section shall be paid to the treasurer of state, and when paid
shall be considered as revenue arising from the taxes imposed by
or pursuant to sections 5739.01 to 5739.31 of the Revised Code. Sec. 5739.133. (A) A penalty shall may be added to every
amount assessed under section 5739.13 or 5739.15 of the Revised
Code as follows: (1) In the case of an assessment against a person who
fails to file a return collect and remit the tax required by
this chapter or Chapter 5741. of the Revised
Code, up to fifty per cent
of the amount assessed; (2) In the case of a person whom the tax commissioner
believes has collected the tax but failed to remit it to the
state as required by this chapter or Chapter 5741. of the
Revised Code, up to fifty per cent of the amount
assessed; (3) In the case of all other assessments, up to fifteen per cent
of the amount assessed. No amount assessed under section 5739.13 or 5739.15 of the
Revised Code shall be subject to a penalty under this division
section in
excess of fifty per cent of the amount assessed. (B) All assessments issued under section 5739.13 and
5739.15 of the Revised Code shall include preassessment interest computed at
the rate per annum prescribed by
section 5703.47 of the Revised Code. Beginning January 1, 1988, preassessment
interest shall begin to accrue on the first day of January of the
year following the date on which the person assessed was required
to report and pay the tax under this chapter or
Chapter 5741. of the Revised Code, and shall run until the date of
the notice of assessment. If an assessment is issued within the
first twelve months after the interest begins to accrue, no
preassessment interest shall be assessed. With respect to taxes
required to be paid under this chapter or Chapter 5741. of the
Revised Code on or after January 1, 1998, interest shall accrue as prescribed
in division (A) of section 5739.132 of the Revised Code. (C) The commissioner may adopt rules providing for the imposition and
remission of any penalty provided for under this section. Sec. 5739.15. (A) If the tax commissioner finds that a
vendor, consumer, or officer, employee, or trustee of a
corporation or business trust who is liable for any tax or charge
levied by this chapter or Chapter 5741. of the Revised Code is
about to depart from the state, remove the person's property
from the state, conceal the person's self or property, or do any other act
tending to prejudice, obstruct, or render wholly or partly
ineffectual proceedings to collect the tax unless the proceedings
are commenced without delay, or if the commissioner believes that
the collection of the amount due from any vendor, consumer, or
officer, employee, or trustee of a corporation or business trust
will be jeopardized by delay, the commissioner may issue a
jeopardy assessment against the person for the amount of the tax
or charge plus a penalty as provided by section 5739.133 of the
Revised Code. Upon issuance of a jeopardy assessment under this
division, the total amount assessed shall immediately be due and
payable unless security is provided pursuant to division (C) of
this section. Any assessment issued under this section shall bear
interest as prescribed by section 5739.13 of the Revised Code. (B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5739.13 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the person assessed or the person's legal representative, as
provided in section 5703.37 of the Revised Code,
within five days of the filing of the entry. The person assessed may
petition for reassessment within thirty sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5739.13 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner. (C) If the person subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the person
previously seized. Upon satisfaction of the assessment, the
commissioner shall order the security released and the judgment
vacated. Sec. 5739.17. (A) No person shall engage in making retail
sales subject to a tax imposed by or pursuant to section 5739.02,
5739.021, 5739.023, or 5739.026 of the Revised Code as a business
without having a license therefor, except as otherwise provided
in divisions (A)(1), (2), and (3) of this section. (1) In the dissolution of a partnership by death, the
surviving partner may operate under the license of the
partnership for a period of sixty days. (2) The heirs or legal representatives of deceased
persons, and receivers and trustees in bankruptcy, appointed by
any competent authority, may operate under the license of the
person so succeeded in possession. (3) Two or more persons who are not partners may operate a
single place of business under one license. In such case neither
the retirement of any such person from business at that place of
business, nor the entrance of any person, under an existing
arrangement, shall affect the license or require the issuance of
a new license, unless the person retiring from the business is
the individual named on the vendor's license. Except as otherwise provided in this section, each
applicant for a license shall make out and deliver to the county
auditor of each county in which the applicant desires to
engage in business,
upon a blank to be furnished by such auditor for that purpose, a
statement showing the name of the applicant, each place of
business in the county where the applicant will make retail
sales, the nature of the business, and any other information the
tax commissioner reasonably prescribes in the form of a statement
prescribed by the commissioner. At the time of making the application, the applicant shall
pay into the county treasury a license fee in the sum of
twenty-five dollars for each fixed place of business in the
county where retail sales will be consummated. Upon receipt of
the application and exhibition of the county treasurer's receipt,
showing the payment of the license fee, the county auditor shall
issue to the applicant a license for each fixed place of business
designated in the application, authorizing the applicant to
engage in business at that location. If a vendor's identity
or the location of the vendor's place of business changes,
the vendor
shall apply for a new license. If a vendor wishes to move an existing
fixed place of business to a new location within the same county, the vendor
shall obtain a new vendor's license or submit a request to the tax
commissioner to
transfer the existing vendor's license to the new location. When the new
location has been verified as being within the same county, the tax
commissioner shall authorize the transfer and notify the county auditor of the
change of location. If a vendor wishes to move an existing fixed place of
business to another county, the vendor's license shall not transfer and the
vendor shall obtain a new vendor's license from the county in which the
business is to be located. The form of the license shall be
prescribed by the commissioner. The fees collected shall be
credited to the general fund of the county. A vendor that makes retail sales subject to tax under Chapter
5739. of the Revised Code pursuant to a permit issued by the
division of liquor control shall obtain a vendor's license in the identical
name and for the identical address as shown on the permit. Except as otherwise provided in this section, if a vendor
has no fixed place of business and sells from a vehicle, each
vehicle intended to be used within a county constitutes a place
of business for the purpose of this section. (B) As used in this division, "transient vendor" means any
person who leases titled motor vehicles, titled watercraft, or
titled outboard motors or, in the usual course of the
person's business, transports inventory, stock of goods, or similar
tangible
personal property to a temporary place of business in a county in
which the person has no fixed place of business, for the
purpose of
making retail sales of such property. A "temporary place of
business" means any public or quasi-public place including, but
not limited to, a hotel, rooming house, storeroom, building, part
of a building, tent, vacant lot, railroad car, or motor vehicle
that is temporarily occupied for the purpose of making retail
sales of goods to the public. A place of business is not
temporary if the same person conducted business at the place
continuously for more than six months or occupied the premises
as the person's permanent residence for more than six
months, or if the
person intends it to be a fixed place of business. As used in this division, "limited vendor" means any person
who, in order to participate in a temporary exhibition, show,
fair, flea market, or similar event, transports inventory, stock
of goods, or similar property to a temporary place of business
located at a temporary exhibition, show, fair, flea market, or
similar event held in a county in which the person has no
fixed place of business for which the person holds a vendor's
license for the purpose of
making retail sales of such property.
Any transient vendor, in lieu of obtaining a vendor's
license under division (A) of this section for counties in which
the transient vendor has no fixed place of business, may
apply to the
tax commissioner, on a form prescribed by the commissioner,
for a transient
vendor's license. The transient vendor's license authorizes the
transient vendor to make retail sales in any county in which the
transient vendor does not maintain a fixed place of business. Any holder
of a transient vendor's license shall not be required to obtain a separate
vendor's license from the county auditor in that county. Upon the tax
commissioner's determination that an applicant is a
transient vendor, the applicant shall pay a license fee in the
amount of one hundred twenty-five dollars, at which time the tax
commissioner
shall issue the license. The tax commissioner may require a
vendor to be licensed as a transient vendor if, in the opinion of
the commissioner, such licensing is necessary for the efficient
administration of the tax. Any limited vendor, in lieu of obtaining a vendor's license
under division (A) of this section for a county in which the
limited vendor has no fixed place of business for which the
limited vendor holds a vendor's license may apply to the tax commissioner
or the county auditor of that
county, on a form prescribed by the commissioner, for a limited
vendor's license. The limited vendor's license authorizes the
limited vendor to make retail sales at a temporary exhibition,
show, fair, flea market, or similar event held in that county for
the duration of the event or twenty days, whichever period is
shorter. Any holder of a limited vendor's license shall not be
required to obtain a separate vendor's license pursuant to
division (A) of this section from the county auditor in that
county or transient vendor's license from the tax commissioner in
order to participate in the event. The applicant shall pay a
license fee in the amount of five dollars, at which time the tax
commissioner or county auditor shall issue a license for making
retail sales at the event designated in the application. Fees
collected for licenses issued by a county auditor shall be
credited to the general fund of the county. Fees collected for
licenses issued by the tax commissioner shall be credited to the
state general revenue fund.
A limited vendor who makes retail sales at an event and who
is not the holder of a transient vendor's license or a vendor's
license for the county in which the event is held, shall file a
tax return for and remit the tax on any sales made at the event
according and subject to the requirements of section 5739.12 of
the Revised Code; except that the return and the remittance shall
be made within fifteen days of the close of the event.
Any holder of a valid transient vendor's license may make
retail sales as a limited vendor at a temporary exhibition, show,
fair, flea market, or similar event, held anywhere in the state
without obtaining a limited vendor's license and without
complying with any provision of section 311.37 of the Revised
Code. Any holder of a valid vendor's license may make retail
sales as a limited transient vendor at a temporary exhibition,
show, fair,
flea market, or similar event held in any county in which the
vendor maintains a fixed place of business for which the
vendor holds a vendor's
license without obtaining a limited transient vendor's license. (C) As used in this division, "service vendor" means any
person who, in the usual course of the person's business,
sells services described in division (B)(3)(e), (f), (g), (h),
(i), (j), (k), (l), or (m) of section
5739.01 of the Revised Code. Every service vendor shall make application to the tax
commissioner for a service vendor's license. Each applicant
shall pay a license fee in the amount of twenty-five dollars.
Upon the commissioner's determination that an applicant is a
service vendor and payment of the fee, the commissioner shall
issue the applicant a service vendor's license. Only sales described in division (B)(3)(e), (f), (g), (h),
(i), (j), (k), (l), or (m) of
section 5739.01 of the Revised Code may be made under
authority of a service vendor's license, and that license
authorizes sales to be made at any place in this state. Any
service vendor who makes sales of other services or tangible
personal property subject to the sales tax also shall be licensed
under division (A), (B), or (D) of this section. (D) As used in this division, "delivery vendor" means any
vendor who engages in one or more of the activities described in
divisions (D)(1) to (4) of this section, and who maintains no
store, showroom, or similar fixed place of business or other
location where merchandise regularly is offered for sale or
displayed or shown in catalogs for selection or pick-up by
consumers, or where consumers bring goods for repair or other
service. (1) The vendor makes retail sales of tangible personal
property; (2) The vendor rents or leases, at retail, tangible
personal property, except titled motor vehicles, titled
watercraft, or titled outboard motors; (3) The vendor provides a service, at retail, described in
division (B)(3)(a), (b), (c), or (d) of section 5739.01 of the
Revised Code; or (4) The vendor makes retail sales of warranty, maintenance
or service contracts, or similar agreements as described in
division (B)(7) of section 5739.01 of the Revised Code. A transient or limited vendor or a seller registered
pursuant to section 5741.17 of the Revised Code is not a delivery
vendor. Delivery vendors shall apply to the tax commissioner, on a
form prescribed by the commissioner, for a delivery vendor's
license. Each applicant shall pay a license fee of twenty-five
dollars for each delivery vendor's license, to be credited to the
general revenue fund. Upon the commissioner's determination that
the applicant is a delivery vendor, the commissioner shall issue
the license. A delivery vendor's license authorizes retail sales
to be made throughout the state. All sales of the vendor must be
reported under the delivery license. The commissioner may
require a vendor to be licensed as a delivery vendor if, in the
opinion of the commissioner, such licensing is necessary for the
efficient administration of the tax. The commissioner shall not
issue a delivery vendor license to a vendor who holds a license
issued under division (A) of this section. (E) On or before the first day of February of each year,
each vendor, except limited vendors, shall renew each vendor's
license in the manner prescribed by the commissioner. The vendor
shall pay a renewal fee of ten dollars for each license other
than a transient vendor's license, and forty dollars for a
transient vendor's license. Failure to pay the renewal fee
timely shall be cause for the commissioner to revoke the license
pursuant to section 5739.19 of the Revised Code or to suspend the
license pursuant to section 5739.30 of the Revised Code. All
renewal fees shall be credited to the general revenue fund. (F) Any transient vendor or limited vendor who is issued a
license pursuant to this section shall display the license or a
copy of it prominently, in plain view, at every place of business
of the transient or limited vendor. Every owner, organizer, or
promoter who operates a fair, flea market, show, exhibition,
convention, or similar event at which transient or limited
vendors are present shall keep a comprehensive record of all such
vendors, listing the vendor's name, permanent address, vendor's
license number, and the type of goods sold. Such records shall
be kept for four years and shall be open to inspection by the tax
commissioner.
Sec. 5739.19. The tax commissioner may revoke any retail
vendor's license if he determines upon ascertaining that the
vendor has failed to
comply with the requirements of this chapter and that the vendor
has no need for the license because he the vendor is not engaged
in making taxable retail sales. Notice of the revocation shall be
delivered to the vendor personally or by certified mail, return
receipt requested. The revocation shall be effective on the
first day of the month following the expiration of fifteen days
after the vendor received the notice of the revocation. The revocation of the vendor's license shall be stayed if,
within fifteen days after receiving notice of the revocation, the
vendor objects, in writing, to the revocation and pays all
outstanding tax and penalties resulting from his
failure to comply with the provisions of this chapter, or provides evidence
that the tax and any penalties have been paid. The commissioner
shall consider the written objections of the vendor and issue a
final determination on the revocation of the vendor's license.
The commissioner's final determination may be appealed to the
board of tax appeals pursuant to section 5717.02 of the Revised
Code. The revocation shall be effective on the first day of the
month following the expiration of all time limits for appeal. Sec. 5739.30. (A) No person, including any officer,
employee, or trustee of a corporation or business trust, shall
fail to file any return or report required to be filed by this
chapter, or file or cause to be filed any incomplete, false or
fradulent fraudulent return, report, or statement, or aid or
abet another in
the filing of any false or fraudulent return, report, or
statement. (B) If any vendor required to file monthly returns under
section 5739.12 of the Revised Code fails, on two consecutive
months or on three or more months within a twelve-month period,
to file such returns when due or to pay the tax thereon, or if any
vendor authorized by the tax commissioner to file semiannual
returns, fails on two or more occasions within a twenty-four
month period, to file such returns when due or to pay the tax due
thereon, or if any vendor fails to pay the annual license renewal
fee required by division (E) of section 5739.17 of the Revised
Code, the commissioner may do any of the following: (1) Require the vendor to furnish security in an amount
equal to the average tax liability of the vendor for a period of
one year, as determined by the commissioner from a review of
returns or other information pertaining to the vendor, which
amount shall in no event be less than one thousand dollars. The
security may be in the form of a corporate surety bond,
satisfactory to the commissioner, conditioned upon payment of the
tax due with the returns from the vendor. The security shall be
filed within ten days following the vendor's receipt of the
notice from the commissioner of its requirements. (2) Suspend the license issued to the vendor pursuant to
section 5739.17 of the Revised Code. The suspension shall be
effective ten days after service of written notice to the vendor
of the commissioner's intention to do so. The notice shall be
served upon the vendor personally or by certified mail. On the
first day of the suspension, the commissioner shall cause to be
posted, at every public entrance of the vendor's premises, a
notice identifying the vendor and the location and informing the
public that the vendor's license is under suspension and that no
retail sales may be transacted at that location. No person,
other than the commissioner or his the commissioner's agent or
employee, shall remove, cover, or deface the posted notice. No license which
has been suspended under this section shall be reinstated, and no
posted notice shall be removed, until the vendor has filed
complete and correct returns for all periods in which no return
had been filed and paid the full amount of the tax, penalties,
and other charges due on those returns. A corporate surety bond filed under this section shall be
returned to the vendor if, for a period of twelve consecutive
months following the date the bond was filed, the vendor has
filed all returns and remitted payment with them within the time
prescribed in section 5739.12 of the Revised Code. Sec. 5741.02. (A) For the use of the general revenue fund
of the state, an excise tax is hereby levied on the storage, use,
or other consumption in this state of tangible personal property
or the benefit realized in this state of any service provided.
The tax shall be collected pursuant to the schedules in section
5739.025 of the Revised Code. (B) Each consumer, storing, using, or otherwise consuming
in this state tangible personal property or realizing in this
state the benefit of any service provided, shall be liable for the
tax, and such liability shall not be extinguished until the tax
has been paid to this state; provided, that the consumer shall be
relieved from further liability for the tax if the tax has been
paid to a seller in accordance with section 5741.04 of the
Revised Code or prepaid by the seller in accordance with section
5741.06 of the Revised Code. (C) The tax does not apply to the storage, use, or
consumption in this state of the following described tangible
personal property or services, nor to the storage, use, or
consumption or benefit in this state of tangible personal
property or services purchased under the following described
circumstances: (1) When the sale of property or service in this state is
subject to the excise tax imposed by sections 5739.01 to 5739.31
of the Revised Code, provided said tax has been paid; (2) Except as provided in division (D) of this section,
tangible personal property or services, the acquisition of which,
if made in Ohio, would be a sale not subject to the tax imposed
by sections 5739.01 to 5739.31 of the Revised Code; (3) Property or services, the storage, use, or other
consumption of or benefit from which this state is prohibited
from taxing by the Constitution of the
United States, laws of the
United States, or the Constitution of this
state. This exemption
shall not exempt from the application of the tax imposed by this
section the storage, use, or consumption of tangible personal
property that was purchased in interstate commerce, but
that has come to rest in this state, provided that fuel to
be used or
transported in carrying on interstate commerce that is
stopped within this state pending transfer from one conveyance to another
is exempt from the excise tax imposed by this section and section
5739.02 of the Revised Code; (4) Transient use of tangible personal property in this
state by a nonresident tourist or vacationer, or a non-business
use within this state by a nonresident of this state, if the
property so used was purchased outside this state for use outside
this state and is not required to be registered or licensed under
the laws of this state; (5) Tangible personal property or services rendered upon
which taxes have been paid to another jurisdiction to the extent
of the amount of the tax paid to such other jurisdiction. Where
the amount of the tax imposed by this section and imposed
pursuant to section 5741.021, 5741.022, or 5741.023 of the
Revised Code exceeds the amount paid to another jurisdiction, the
difference shall be allocated between the tax imposed by this
section and any tax imposed by a county or a transit authority
pursuant to section 5741.021, 5741.022, or 5741.023 of the
Revised Code, in proportion to the respective rates of such
taxes. As used in this subdivision, "taxes paid to another
jurisdiction" means the total amount of retail sales or use tax
or similar tax based upon the sale, purchase, or use of tangible
personal property or services rendered legally, levied by and paid
to another state or political subdivision thereof, or to the
District of Columbia, where the payment of such tax does not
entitle the taxpayer to any refund or credit for such payment. (6) The transfer of a used manufactured home or used mobile home,
as defined by section 5739.0210 of the Revised Code,
made on or after January 1, 2000. (D) The tax applies to the storage, use, or other
consumption in this state of tangible personal property or
services, the acquisition of which at the time of sale was
excepted under division (E)(1) of section 5739.01 of the Revised
Code from the tax imposed by section 5739.02 of the Revised Code,
but which has subsequently been temporarily or permanently
stored, used, or otherwise consumed in a taxable manner. (E) If any transaction is claimed to be exempt under division (E)
of
section 5739.01 of the Revised Code or under section 5739.02
of the Revised Code, with the exception of divisions (B)(1) to (11)
or (29) of section 5739.02 of the Revised Code, the consumer shall
furnish to the seller, and the seller shall obtain from the consumer, a
certificate specifying the reason that the transaction is
not subject to the tax. If the transaction is claimed to be exempt under
division (B)(13) of section 5739.02 of the Revised Code,
the exemption certificate shall be signed by both the contractor and
contractee, and the contractee shall be deemed to be the consumer of all items
purchased
under the claim of exemption if it is subsequently determined that
the exemption is not properly claimed. The certificate shall be
in such form as the tax commissioner by rule prescribes. If no
certificate is furnished or obtained within the period for filing
the return for the period in which the transaction is consummated,
it shall be presumed that the tax applies. The failure to have so
furnished or obtained a certificate shall not preclude a seller or
consumer from establishing, within one hundred twenty days of the
giving of notice by the commissioner of intention to levy an
assessment, that the transaction is not subject to the tax. (F) A seller who files a petition for reassessment contesting the
assessment of tax on transactions for which the seller obtained no valid
exemption certificates and for which the seller failed
to establish that the transactions were not subject to the tax
during the one-hundred-twenty-day period allowed under division
(E) of this section may present to the tax commissioner additional
evidence to prove that the transactions were exempt. The seller
shall file such evidence within ninety days of the receipt by the
seller of the notice of assessment, except that, upon application
and for reasonable cause, the tax commissioner may extend the
period for submitting such evidence thirty days. (G) For the purpose of the proper administration of
sections 5741.01 to 5741.22 of the Revised Code, and to prevent
the evasion of the tax hereby levied, it shall be presumed that
any use, storage, or other consumption of tangible personal
property in this state is subject to the tax until the contrary
is established. Sec. 5741.121. (A) If the total amount of tax required to
be paid by a consumer under section 5741.12 of the Revised Code
for any year indicated in the following schedule equals or
exceeds the amount prescribed for that year in the schedule, the
consumer shall remit each monthly tax payment in the second
ensuing and each succeeding year by electronic funds transfer as
prescribed by division (B) of this section.
Year | | 1992 | | 1993 and thereafter | | 2000 |
| | | | through 1999 | | and thereafter |
Tax payment | | $1,200,000 | | $600,000 | | $60,000 |
If a consumer's tax payment for each of two consecutive
years beginning with 1993 2000 is less than six hundred
sixty thousand
dollars, the consumer is relieved of the requirement to remit
taxes by electronic funds transfer for the year that next follows
the second of the consecutive years in which the tax payment is
less than six hundred sixty thousand dollars, and is relieved of
that
requirement for each succeeding year unless the tax payment in a
subsequent year equals or exceeds six hundred sixty thousand
dollars. The tax commissioner shall notify each consumer required to
remit taxes by electronic funds transfer of the consumer's
obligation to do so, shall maintain an updated list of those
consumers, and shall timely certify the list and any additions
thereto or deletions therefrom to the treasurer of state.
Failure by the tax commissioner to notify a consumer subject to
this section to remit taxes by electronic funds transfer does not
relieve the consumer of its the consumer's obligation to remit
taxes by electronic funds transfer. (B) Consumers required by division (A) of this section to
remit payments by electronic funds transfer shall remit such
payments to the treasurer of state in the manner prescribed by
rules adopted by the treasurer under section 113.061 of the
Revised Code and on or before the dates specified under section
5741.12 of the Revised Code. The payment of taxes by electronic
funds transfer does not affect a consumer's obligation to file
the monthly return as required under section 5741.12 of the
Revised Code. A consumer required by this section to remit taxes by
electronic funds transfer may apply to the treasurer of state in
the manner prescribed by the treasurer to be excused from that
requirement. The treasurer of state may excuse the consumer from
remittance by electronic funds transfer for good cause shown for
the period of time requested by the consumer or for a portion of
that period. The treasurer shall notify the tax commissioner and
the consumer of the treasurer's decision as soon as is
practicable. (C) If a consumer required by this section to remit taxes
by electronic funds transfer remits those taxes by some means
other than by electronic funds transfer as prescribed by the
rules adopted by the treasurer of state, and the treasurer
determines that such failure was not due to reasonable cause or
was due to willful neglect, the treasurer shall notify the tax
commissioner of the failure to remit by electronic funds transfer
and shall provide the commissioner with any information used in
making that determination. The tax commissioner may collect an
additional charge by assessment in the manner prescribed by
section 5741.13 of the Revised Code. The additional charge shall
equal five per cent of the amount of the taxes required to be
paid by electronic funds transfer, but shall not exceed five
thousand dollars. Any additional charge assessed under this
section is in addition to any other penalty or charge imposed
under this chapter, and shall be considered as revenue arising
from taxes imposed under this chapter. The tax commissioner may
remit all or a portion of such a charge and may adopt rules
governing such remission. No additional charge shall be assessed under this division
against a consumer that has been notified of its the consumer's
obligation to remit taxes under this section and that remits its first two tax
payments after such notification by some means other than
electronic funds transfer. The additional charge may be assessed
upon the remittance of any subsequent tax payment that the
consumer remits by some means other than electronic funds
transfer. Sec. 5743.03. Except as provided in section 5743.04 of the
Revised Code, the taxes imposed under sections 5743.02, 5743.023,
5743.024, and 5743.026 of the Revised Code
shall be paid by the purchase of
stamps. A stamp shall be affixed to each package of an aggregate
denomination not less than the amount of the tax upon the
contents thereof. The stamp, so affixed, shall be prima-facie
evidence of payment of the tax. Except as is provided in the
rules prescribed by the tax commissioner under authority of
sections 5743.01 to 5743.20 of the Revised Code, and unless such
stamps have been previously affixed, they shall be so affixed by
each wholesale dealer, and canceled by writing or stamping across
the face thereof the number assigned to such wholesale dealer by
the tax commissioner for that purpose, prior to the delivery of
any cigarettes to any person in this state, or in the case of a
tax levied pursuant to section 5743.024 or 5743.026 of the Revised
Code,
prior to the delivery of cigarettes to any person in the county
in which the tax is levied. Except as provided in the rules prescribed by the
commissioner under authority of sections 5743.01 to 5743.20 of
the Revised Code, and unless such stamps have been previously
affixed, each retail dealer shall within twenty-four hours after
the receipt of any cigarettes at the retail dealer's place
of business and prior
to the delivery thereof to any person in this state, or in the
case of a tax levied pursuant to section 5743.024 or 5743.026 of the
Revised
Code prior to the delivery thereof to any person in the county
in which the tax is levied, so affix such stamps
and cancel same by writing
or stamping across the face thereof the number assigned to such
retail dealer by the commissioner for that purpose. Whenever any cigarettes are found in the place of business
of any retail dealer without proper tax stamps affixed thereto
and canceled, it is presumed that such cigarettes are kept
therein in violation of sections 5743.01 to 5743.20 of the
Revised Code. Each wholesale dealer and each retail dealer who purchases
cigarettes without proper tax stamps affixed thereto shall, on or
before the thirty-first day of the month following the close of
each semiannual period, which period shall end on the thirtieth
day of June and the thirty-first day of December of each year,
make and file a return of the preceding semiannual period, on
such form as is prescribed by the tax commissioner, showing his the
dealer's entire purchases and sales of cigarettes and stamps or
impressions for such semiannual period and accurate inventories
as of the beginning and end of each semiannual period of
cigarettes, stamped or unstamped; cigarette tax stamps affixed or
unaffixed and unused meter impressions; and such other
information as the commissioner finds necessary to the proper
administration of sections 5743.01 to 5743.20 of the Revised
Code. The commissioner may extend the time for making and filing
returns and may remit all or any part of amounts of penalties
which may become due under sections 5743.01 to 5743.20 of the
Revised Code. The wholesale or retail dealer shall deliver the
return together with a remittance of the tax deficiency reported
thereon to the treasurer of state. The treasurer of state shall
stamp or otherwise mark on the return the date it was received and shall also
show thereon by stamp or otherwise a payment
or nonpayment of the deficiency shown by the return. Thereafter,
the treasurer of state shall immediately transmit all returns
filed under this section to the commissioner. Any wholesale or
retail dealer who fails to file a return under this section and
the rules of the commissioner shall may be required, for each
day the dealer
so fails, to
forfeit and pay into the state treasury the sum of one dollar as
revenue arising from the tax imposed by sections 5743.01 to
5743.20 of the Revised Code and such sum may be collected by
assessment in the manner provided in section 5743.081 of the
Revised Code. If the commissioner finds it
necessary in
order to insure the payment of the tax imposed by sections
5743.01 to 5743.20 of the Revised Code, the commissioner may require
returns and
payments to be made other than semiannually. The returns shall
be signed by the wholesale or retail dealer or his an authorized
agent thereof. Sec. 5743.081. (A) If any wholesale dealer or retail
dealer fails to pay the tax levied under sections 5743.02,
5743.023, 5743.024, or 5743.026 of the Revised Code
as required by sections 5743.01 to 5743.20 of the Revised Code, and by the
rules of the tax commissioner, or fails to collect the tax from
the purchaser or consumer, the commissioner may make an
assessment against the wholesale or retail dealer based upon any
information in the commissioner's possession. The commissioner may make an assessment against any
wholesale or retail dealer who fails to file a return required by
section 5743.03 or 5743.025 of the Revised Code. No assessment shall be made against any wholesale or retail
dealer for any taxes imposed under sections 5743.02, 5743.023,
5743.024, or 5743.026 of the Revised Code more than
three years after the last
day of the calendar month which immediately follows the
semiannual period prescribed in section 5743.03 of the Revised
Code in which the sale was made, or more than three years after
the semiannual return for such period is filed, whichever is
later. This section does not bar an assessment against any
wholesale or retail dealer who fails to file a return as required
by section 5743.03 or 5743.025 of the Revised Code, or who files
a fraudulent return. A penalty of up to thirty per cent shall may be added to
the amount
of every assessment made under this section. The commissioner
may adopt rules providing for the imposition and remission of penalties
added to
assessments made under this section. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code.
The notice shall specify separately any portion of the assessment
that represents a county tax. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the party's authorized agent
having knowledge of the facts, the assessment shall become
final and the
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to an assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the final determination on the petitioner by
personal service or
certified mail, and the commissioner's decision in the
matter shall be final,
subject to appeal as provided in section 5717.02 of the Revised
Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the wholesale or retail dealer's place of
business is located or the county in which the party assessed
resides. If the party assessed maintains no place of business in
this state and is not a resident of this state, the certified
copy of the entry may be filed in the office of the clerk of the
court of common pleas of Franklin county. The clerk, immediately upon the filing of the
commissioner's entry, shall enter a judgment for the state
against the party assessed in the amount shown on the entry. The
judgment may be filed by the clerk in a loose-leaf book entitled
"special judgments for state cigarette sales tax," and
shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment
except as otherwise provided in sections 5743.01 to 5743.20 of the Revised
Code. The portion of the assessment not paid within
thirty sixty days after the assessment was issued shall bear
interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax
commissioner issues the assessment until it is paid. Interest shall be paid
in the same manner as the tax and may be collected by the issuance of an
assessment under this section. (D) All money collected by the commissioner under this
section shall be paid to the treasurer of state, and when paid
shall be considered as revenue arising from the taxes imposed by
sections 5743.01 to 5743.20 of the Revised Code. Sec. 5743.082. (A) If the tax commissioner finds that a
wholesale dealer or retail dealer, liable for tax under sections
5743.01 to 5743.20 of the Revised Code, is about to depart from
the state, remove the wholesale or retail dealer's property
from the state, conceal the wholesale or retail dealer's
person or property, or do any other act tending to prejudice, obstruct,
or render wholly or partly ineffectual proceedings to collect the
tax, unless the proceedings are commenced without delay, or if
the commissioner believes that the collection of the amount due
from any wholesale dealer or retail dealer will be jeopardized by
delay, the commissioner may issue a jeopardy assessment against
the wholesale or retail dealer for the amount of the tax, plus a
penalty of up to thirty per cent. Upon issuance of a jeopardy
assessment under this division, the total amount assessed shall
immediately be due and payable unless security is provided
pursuant to division (C) of this section. Any assessment issued under this
section shall bear interest as prescribed by section 5743.081 of the Revised
Code. (B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5743.081 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the dealer assessed or the dealer's legal representative, as
provided in section 5703.37 of the Revised Code,
within five days of the filing of the entry. The dealer assessed may
petition for reassessment within thirty sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5743.081 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner. (C) If the dealer subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the dealer
that previously were seized. Upon satisfaction of the assessment
the commissioner shall order the security released and the
judgment vacated. (D) The commissioner may adopt rules providing for the imposition
and remission of penalties imposed under this section. Sec. 5743.52. (A) Each distributor of tobacco products
subject to the tax levied by section 5743.51 of the Revised Code,
on or before the last day of each month, shall file with the
treasurer of state a return for the preceding month showing any
information the tax commissioner finds necessary for the proper
administration of sections 5743.51 to 5743.66 of the Revised
Code, together with remittance of the tax due. The treasurer of
state shall stamp or otherwise mark on the return the date it was
received and shall also show thereon by stamp or otherwise the
amount of payment received with the return. Thereafter, the
treasurer of state shall immediately transmit all returns filed
under this section to the tax commissioner. The return and
payment of the tax required by this section shall be filed in
such a manner that it is received by the treasurer of state on or
before the last day of the month following the reporting period.
If the return is filed and the amount of tax shown on the return
to be due is paid on or before the date the return is required to
be filed, the distributor is entitled to a discount equal to two
and five-tenths per cent of the amount shown on the return to be
due. (B) Any person who fails to timely file the return and
make payment of taxes as required under this section, section
5743.62, or section 5743.63 of the Revised Code shall may be
required to pay an
additional charge equal to not exceeding the greater of fifty
dollars or ten
per cent of the tax due. Any additional charge imposed under
this section may be collected by assessment as provided in
section 5743.56 of the Revised Code. (C) If any tax due is not paid timely in accordance with
sections 5743.52, 5743.62, or 5743.63 of the Revised Code, the
person liable for the tax shall pay interest, calculated at the
rate per annum as prescribed by section 5703.47 of the Revised
Code, from the date the tax payment was due to the date of
payment or to the date an assessment is issued under section 5743.56
of the Revised Code, whichever occurs first. The commissioner may collect
such interest by assessment pursuant to section 5743.56 of the Revised Code. (D) The commissioner may authorize the filing of returns and the payment of
the tax required by this section, section 5743.62, or section 5743.63 of the
Revised Code for periods longer than a calendar month. (E) The commissioner may order any taxpayer to file with
the commissioner security to the satisfaction of the commissioner
conditioned upon filing the return and paying the taxes required
under this section, section 5743.62, or section 5743.63 of the
Revised Code if the commissioner believes that the collection of
the tax may be in jeopardy. Sec. 5743.56. (A) Any person required to pay the tax
imposed by section 5743.51, 5743.62, or 5743.63 of the Revised
Code is personally liable for the tax. The tax commissioner may
make an assessment, based upon any information in the
commissioner's possession, against any person who fails to file a
return or pay any tax, interest, or additional charge as required
by this chapter. The commissioner shall give the person assessed
written notice of such assessment by personal service or
certified mail as provided in section 5703.37 of the Revised
Code. (B) When the information in the possession of the tax
commissioner indicates that a person liable for the tax imposed
by section 5743.51, 5743.62, or 5743.63 of the Revised Code has
not paid the full amount of tax due, the commissioner may audit a
representative sample of the person's business and may issue an
assessment based on such audit. (C) A penalty of up to fifteen per cent shall may be
added to all
amounts assessed under this section. The commissioner may adopt
rules providing for the imposition and remission of such penalties. (D) Unless the person assessed files with the tax
commissioner within thirty sixty days after service of the
notice of
assessment, either personally or by certified mail, a petition
for reassessment in writing by the person assessed or the
authorized agent of the person assessed having knowledge of the facts,
the assessment becomes final and the amount of the assessment is due and
payable from the person assessed to the treasurer of state. A
petition shall indicate the objections to the assessment of the
person assessed, but additional objections may be raised in
writing prior to the date shown on the final determination of the
tax commissioner. The commissioner shall grant the petitioner a
hearing on the petition, unless waived by the petitioner. The commissioner may make such correction to the assessment
as the commissioner finds proper and shall issue a final determination
thereon. The commissioner shall serve a copy of the final
determination on the petitioner either by personal service or by
certified mail, and the commissioner's decision in the
matter is final, subject to appeal under section 5717.02 of the Revised Code. (E) After an assessment becomes final, if any portion of
the assessment, including accrued interest, remains unpaid, a
certified copy of the commissioner's entry making the assessment
final may be filed in the office of the clerk of the court of
common pleas in the county in which the person assessed resides
or in which the person assessed conducts business. If the person
assessed maintains no place of business in this state and is not a
resident of this state, the certified copy of the entry may be
filed in the office of the clerk of the court of common pleas of
Franklin county. The clerk, immediately upon the filing of the entry, shall
enter a judgment for the state against the person assessed in the
amount shown to be due. The judgment may be filed by the clerk
in a loose-leaf book entitled "special judgments for state
tobacco products tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within
thirty sixty days after the day the assessment is issued shall
bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax commissioner issues the assessment
until the assessment is paid. Interest shall be paid in the
same manner as the tax and may be collected by issuing an
assessment under this section. (F) If the commissioner believes that collection of the
tax will be jeopardized unless proceedings to collect or secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the tax. Upon issuance of the jeopardy assessment,
the commissioner immediately shall file an entry with the clerk
of the court of common pleas in the manner prescribed by division
(E) of this section. Notice of the jeopardy assessment shall be
served on the person assessed or the legal representative
of the person assessed, as provided in section 5703.37 of the
Revised Code, within
five days of the filing of the entry with the clerk. The total
amount assessed is immediately due and payable, unless the person
assessed files a petition for reassessment in accordance with
division (D) of this section and provides security in a form
satisfactory to the commissioner and in an amount sufficient to
satisfy the unpaid balance of the assessment. Full or partial
payment of the assessment does not prejudice the commissioner's
consideration of the petition for reassessment. (G) All money collected by the commissioner under this
section shall be paid to the treasurer of state as revenue
arising from the tax imposed by sections 5743.51, 5743.62, and
5743.63 of the Revised Code. Sec. 5747.07. (A) As used in this section: (1) "Partial weekly withholding period" means a period
during which an employer directly, indirectly, or constructively
pays compensation to, or credits compensation to the benefit of,
an employee, and that consists of a consecutive Saturday, Sunday,
Monday, and Tuesday or a consecutive Wednesday, Thursday, and
Friday. There are two partial weekly withholding periods each
week, except that a partial weekly withholding period cannot
extend from one calendar year into the next calendar year; if the
first day of January falls on a day other than Saturday or
Wednesday, the partial weekly withholding period ends on the
thirty-first day of December and there are three partial weekly
withholding periods during that week. (2) "Undeposited taxes" means the taxes an employer is
required to deduct and withhold from an employee's compensation
pursuant to section 5747.06 of the Revised Code that have not
been remitted to the tax commissioner pursuant to this section or
to the treasurer of state pursuant to section 5747.072 of the
Revised Code. (3) A "week" begins on Saturday and concludes at the end
of the following Friday. (B) Except as provided in divisions (C) and (D) of this
section and in division (A) of section 5747.072 of the Revised
Code, every employer required to deduct and withhold any amount
under section 5747.06 of the Revised Code shall file a return and
shall pay the amount required by law as follows: (1) An employer who accumulates or is required to
accumulate undeposited taxes of one hundred thousand dollars or
more during a partial weekly withholding period shall make the
payment of the undeposited taxes by the close of the first
banking day after the day on which the accumulation reaches one
hundred thousand dollars. If required under division (I) of this
section, the payment shall be made by electronic funds transfer
under section 5747.072 of the Revised Code. (2)(a) Except as required by division (B)(1) of this
section, an employer described in division (B)(2)(b) of this
section shall make the payment of undeposited taxes within three
banking days after the close of a partial weekly withholding
period during which the employer was required to deduct and
withhold any amount under this chapter. If required under
division (I) of this section, the payment shall be made by
electronic funds transfer under section 5747.072 of the Revised Code. (b) For amounts required to be deducted and withheld
during 1994, an employer described in division (B)(2)(b) of this
section is one whose actual or required payments under this
section exceeded one hundred eighty thousand dollars during the
twelve-month period ending June 30, 1993. For amounts required
to be deducted and withheld during 1995 and each year thereafter,
an employer described in division (B)(2)(b) of this section is
one whose actual or required payments under this section were at
least eighty-four thousand dollars during the twelve-month period
ending on the thirtieth day of June of the preceding calendar
year. (3) Except as required by divisions (B)(1) and (2) of this
section, if an employer's actual or required payments were more
than two thousand dollars during the twelve-month period ending
on the thirtieth day of June of the preceding calendar year, the
employer shall make the payment of undeposited taxes for each
month during which they were required to be withheld no later
than fifteen days following the last day of that month. The
employer shall file the return prescribed by the tax commissioner
with the payment. (4) Except as required by divisions (B)(1), (2), and (3)
of this section, an employer shall make the payment of
undeposited taxes for each calendar quarter during which they
were required to be withheld no later than the last day of the
month following the last day of March, June, September, and
December each year. The employer shall file the return
prescribed by the tax commissioner with the payment. (C) The return and payment schedules prescribed by
divisions (B)(1) and (2) of this section do not apply to the
return and payment of undeposited school district income taxes
arising from taxes levied pursuant to Chapter 5748. of the
Revised Code. Undeposited school district income taxes shall be
returned and paid pursuant to divisions (B)(3) and (4) of this
section, as applicable. (D)(1) The requirements of division (B) of this section
are met if the amount paid is not less than ninety-five per cent
of the actual tax withheld or required to be withheld for the
prior quarterly, monthly, or partial weekly withholding period,
and the underpayment is not due to willful neglect. Any
underpayment of withheld tax shall be paid within thirty days of
the date on which the withheld tax was due without regard to
division (D)(1) of this section. An employer described in
division (B)(1) or (2) of this section shall make the payment by
electronic funds transfer under section 5747.072 of the Revised Code. (2) If the tax commissioner believes that quarterly or
monthly payments would result in a delay that might jeopardize
the remittance of withholding payments, the commissioner may
order that the payments be made weekly, or more frequently if necessary, and
the payments shall be made no later than three banking days following
the close of the period for which the jeopardy order is made. An
order requiring weekly or more frequent payments shall be
delivered to the employer personally or by certified mail and
remains in effect until the commissioner notifies the employer to
the contrary. (3) If compelling circumstances exist concerning the
remittance of undeposited taxes, the commissioner may order the
employer to make payments under any of the payment schedules
under division (B) of this section. The order shall be delivered
to the employer personally or by certified mail and shall remain
in effect until the commissioner notifies the employer to the
contrary. For purposes of division (D)(3) of this section,
"compelling circumstances" exist if either or both of the
following are true: (a) Based upon annualization of payments made or required
to be made during the preceding calendar year and during the
current calendar year, the employer would be required for the
next calendar year to make payments under division (B)(2) of this
section. (b) Based upon annualization of payments made or required
to be made during the current calendar year, the employer would
be required for the next calendar year to make payments under
division (B)(2) of this section. (E)(1) An employer described in division (B)(1) or (2) of
this section shall file, not later than the last day of the month
following the end of each calendar quarter, a return covering,
but not limited to, both the actual amount deducted and withheld
and the amount required to be deducted and withheld for the tax
imposed under section 5747.02 of the Revised Code during each
partial weekly withholding
period or portion of a partial weekly withholding period during
that quarter. The employer shall file the quarterly return even
if the aggregate amount required to be deducted and withheld for
the quarter is zero dollars. At the time of filing the return,
the employer shall pay any amounts of undeposited taxes for the
quarter, whether actually deducted and withheld or required to be
deducted and withheld, that have not been previously paid. If
required under division (I) of this section, the payment shall be
made by electronic funds transfer. The tax commissioner shall
prescribe the form and other requirements of the quarterly
return. (2) In addition to other returns required to be filed and
payments required to be made under this section, every employer
required to deduct and withhold taxes shall file, not later than
the thirty-first day of January of each year, an annual return
covering, but not limited to, both the aggregate amount deducted
and withheld and the aggregate amount required to be deducted and
withheld during the entire preceding year for the tax imposed
under section 5747.02 of the Revised Code and for each tax imposed
under Chapter 5748. of the Revised Code. At the time of filing that return,
the employer shall pay over any amounts of undeposited taxes for the
preceding year, whether actually deducted and withheld or
required to be deducted and withheld, that have not been
previously paid. The employer shall make the annual report, to
each employee and to the tax commissioner, of the compensation
paid and each tax withheld, as the commissioner by rule may
prescribe. Each employer required to deduct and withhold any tax is
liable for the payment of that amount required to be deducted and
withheld, whether or not the tax has in fact been withheld,
unless the failure to withhold was based upon the employer's good
faith in reliance upon the statement of the employee as to
liability, and the amount shall be deemed to be a special fund in
trust for the general revenue fund. (F) Each employer shall file with the employer's annual
return the
following items of information on employees for whom withholding
is required under section 5747.06 of the Revised Code: (1) The full name of each employee, the employee's address,
the employee's school district of residence, and in the case
of a nonresident employee, the employee's principal county of employment; (2) The social security number of each employee; (3) The total amount of compensation paid before any
deductions to each employee for the period for which the annual
return is made; (4) The amount of the tax imposed by section 5747.02 of
the Revised Code and the amount of each tax imposed under Chapter
5748. of the Revised Code withheld from the compensation of the
employee for the period for which the annual return is made. The
commissioner may extend upon good cause the period for filing any
notice or return required to be filed under this section and may
adopt rules relating to extensions of time. If the extension
results in an extension of time for the payment of the amounts
withheld with respect to which the return is filed, the employer
shall pay, at the time the amount withheld is paid, an amount of
interest computed at the rate per annum prescribed by section
5703.47 of the Revised Code on that amount withheld, from the
day that amount was originally required to be paid to the
day
of actual payment or to the day an assessment is issued under section
5747.13 of the Revised Code, whichever occurs first. (5) In addition to all other interest charges and
penalties imposed, all amounts of taxes withheld or required to
be withheld and remaining unpaid after the day the amounts
are required to be paid shall bear interest from the date prescribed
for payment at the rate per annum prescribed by section 5703.47
of the Revised Code on the amount unpaid, in addition to the
amount withheld, until paid or until the day an assessment is issued
under section 5747.13 of the Revised Code, whichever occurs first. (G) An employee of a corporation, limited liability
company, or business trust having control or supervision of or
charged with the responsibility of filing the report and making
payment, or an officer, member, manager, or trustee of a
corporation, limited liability company, or business trust who is
responsible for the execution of the corporation's, limited
liability company's, or business trust's fiscal responsibilities,
shall be personally liable for failure to file the report or pay
the tax due as required by this section. The dissolution,
termination, or bankruptcy of a corporation, limited liability
company, or business trust does not discharge a responsible
officer's, member's, manager's, employee's, or trustee's
liability for a failure of the corporation, limited liability
company, or business trust to file returns or pay tax due. (H) If an employer required to deduct and withhold income
tax from compensation and to pay that tax to the state under
sections 5747.06 and 5747.07 of the Revised Code sells the
employer's business or stock of merchandise or quits the
employer's business, the taxes
required to be deducted and withheld and paid to the state
pursuant to those sections prior to that time, together with any
interest and penalties imposed on those taxes, become due and
payable immediately, and that person shall make a final return
within fifteen days after the date of selling or quitting
business. The employer's successor shall withhold a
sufficient amount of the purchase money to cover the amount of the taxes,
interest, and penalties due and unpaid, until the former owner produces a
receipt from the tax commissioner showing that the taxes,
interest, and penalties have been paid or a certificate
indicating that no such taxes are due. If the purchaser of the
business or stock of merchandise fails to withhold purchase
money, the purchaser shall be personally liable for the
payment of the
taxes, interest, and penalties accrued and unpaid during the
operation of the business by the former owner. If the amount of
taxes, interest, and penalties outstanding at the time of the
purchase exceeds the total purchase money, the tax commissioner
in the commissioner's discretion may adjust the liability of
the seller or the
responsibility of the purchaser to pay that liability to maximize
the collection of withholding tax revenue. (I)(1) An employer described in division (I)(2) of this
section shall make all payments required by this section for the
year by electronic funds transfer under section 5747.072 of the
Revised Code. (2)(a) For 1994, an employer described in division (I)(2)
of this section is one whose actual or required payments under
this section exceeded five hundred thousand dollars during the
twelve-month period ending June 30, 1993. (b) For 1995, an employer described in division (I)(2) of
this section is one whose actual or required payments under this
section exceeded five hundred thousand dollars during the
twelve-month period ending June 30, 1994. (c) For 1996, an employer described in division (I)(2) of
this section is one whose actual or required payments under this
section exceeded three hundred thousand dollars during the
twelve-month period ending June 30, 1995. (d) For 1997 and thereafter through 2000, an employer
described in
division (I)(2) of this section is one whose actual or required
payments under this section exceeded one hundred eighty thousand
dollars during the twelve-month period ending on the thirtieth
day of June of the preceding calendar year. (e) For 2001 and thereafter, an employer described in division
(I)(2) of this section is one whose actual or required payments under
this section exceeded eighty-four thousand dollars during the twelve-month
period ending on the thirtieth day of June of the preceding calendar
year. Sec. 5747.09. (A) As used in this section: (1) "Estimated taxes" means the amount that the taxpayer
estimates to be his the taxpayer's combined tax liability under
this chapter and Chaper Chapter 5748. of the Revised
Code for the current taxable
year. (2) "Tax liability" means the total taxes due for the
taxable year, after allowing any credit to which the taxpayer is
entitled, but prior to applying any estimated tax payment,
withholding payment, or refund from another tax year. (3) "Taxes paid" include payments of estimated taxes made
under division (C) of this section, taxes withheld from the
taxpayer's compensation, and tax refunds applied by the taxpayer
in payment of estimated taxes. (B) Every taxpayer shall make declaration of estimated
taxes for the current taxable year, in the form that the tax
commissioner shall prescribe, if the amount payable as estimated
taxes, less the amount to be withheld from the taxpayer's
compensation, is more than three five hundred dollars. For
purposes
of this section, taxes withheld from compensation shall be
considered as paid in equal amounts on each payment date unless
the taxpayer establishes the dates on which all amounts were
actually withheld, in which case the amounts withheld shall be
considered as paid on the dates on which the amounts were
actually withheld. Taxpayers filing joint returns pursuant to
section 5747.08 of the Revised Code shall file joint declarations
of estimated taxes. A taxpayer may amend a declaration under
rules prescribed by the commissioner. A taxpayer having a
taxable year of less than twelve months shall make a declaration
under rules prescribed by the commissioner. The declaration of
estimated taxes for an individual under a disability shall be
made and filed by the person who is required to file the income
tax return. The declaration of estimated taxes shall be filed on or
before the fifteenth day of April of each year or on or before
the fifteenth day of the fourth month after the taxpayer becomes
subject to tax for the first time. Taxpayers reporting on a fiscal year basis shall file a
declaration on or before the fifteenth day of the fourth month
after the beginning of each fiscal year or period. The declaration shall be filed upon a form prescribed by
the commissioner and furnished by or obtainable from the
commissioner. The original declaration or any subsequent amendment may be
increased or decreased on or before any subsequent quarterly
payment day as provided in this section. (C) The required portion of the tax liability for the
taxable year that shall be paid through estimated taxes made
payable to the treasurer of state, including the application of
tax refunds to estimated taxes, and withholding on or before the
applicable payment date shall be as follows: (1) On or before the fifteenth day of the fourth month
after the beginning of the taxable year, twenty-two and one-half
per cent of the tax liability for the taxable year; (2) On or before the fifteenth day of the sixth month
after the beginning of the taxable year, forty-five per cent of
the tax liability for the taxable year; (3) On or before the fifteenth day of the ninth month
after the beginning of the taxable year, sixty-seven and one-half
per cent of the tax liability for the taxable year; (4) On or before the fifteenth day of the first month of
the following taxable year, ninety per cent of the tax liability
for the taxable year. When an amended return has been filed, the unpaid balance
shown due on the amended return shall be paid in equal
installments on or before the remaining payment dates. On or before the fifteenth day of the fourth month of the
year following that for which the declaration or amended
declaration was filed, an annual return shall be filed and any
balance which may be due shall be paid with the return in
accordance with section 5747.08 of the Revised Code. (D) In the case of any underpayment of estimated taxes, an
interest penalty shall be added to the taxes for the tax year at
the rate per annum prescribed by section 5703.47 of the Revised
Code upon the amount of underpayment for the period of
underpayment, unless the underpayment is due to reasonable cause
as described in division (E) of this section. The amount of the
underpayment shall be determined as follows: (1) For the first payment of estimated taxes each year,
twenty-two and one-half per cent of the tax liability, less the
amount of taxes paid by the date prescribed for that payment; (2) For the second payment of estimated taxes each year,
forty-five per cent of the tax liability, less the amount of
taxes paid by the date prescribed for that payment; (3) For the third payment of estimated taxes each year,
sixty-seven and one-half per cent of the tax liability, less the
amount of taxes paid by the date prescribed for that payment; (4) For the fourth payment of estimated taxes each year,
ninety per cent of the tax liability, less the amount of taxes
paid by the date prescribed for that payment. The period of the underpayment shall run from the day the
estimated payment was required to be made to the date on which
the payment is made. For purposes of this section, a payment of
estimated taxes on or before any payment date shall be considered
a payment of any previous underpayment only to the extent the
payment of estimated taxes exceeds the amount of the payment
presently required to be paid to avoid any penalty. The interest penalty imposed under division (D) of this
section shall be in lieu of any other interest charge or penalty
imposed for failure to file an estimated return and make
estimated payments as required by this section. (E) An underpayment of estimated taxes determined under
division (D) of this section shall be due to reasonable cause and
the interest penalty imposed by this section shall not be added
to the taxes for the tax year if either of the following apply: (1) The amount of tax that was paid equals at least ninety
per cent of the tax liability for the current taxable year,
determined by annualizing the income received during the year up
to the end of the month immediately preceding the month in which
the payment is due; (2) The amount of tax that was paid equals at least one
hundred per cent of the tax liability shown on the return of the
taxpayer for the preceding taxable year, provided that the
immediately preceding taxable year reflected a period of twelve
months and the taxpayer filed a return under section 5747.08 of
the Revised Code for that year. The tax commissioner may waive the requirement for filing a
declaration of estimated taxes for any class of taxpayers if he
finds after finding that the waiver is reasonable and proper in
view of
administrative costs and other factors. Sec. 5747.13. (A) If any employer collects the tax
imposed by section 5747.02 or under Chapter 5748. of the Revised
Code and fails to remit the tax as required by law, or fails to
collect the tax, the employer is personally liable for any
amount collected which the employer fails to remit, or any
amount which the employer fails to collect. If any taxpayer
fails to file a return or fails to pay the tax
imposed by section 5747.02 or under Chapter 5748. of the Revised
Code, the taxpayer is personally liable for the amount of the tax. If any employer, taxpayer, or qualifying entity
required to file a return under
this chapter fails to file the return within the time prescribed,
files an incorrect return, fails to remit the full amount of the
taxes due for the period covered by the return, or fails to remit
any additional tax due as a result of a reduction in the amount
of the credit allowed under division (B) of section 5747.05 of
the Revised Code together with interest on the additional tax
within the time prescribed by that division, the tax commissioner
may make an assessment against any person liable for any
deficiency for the period for which the return is or taxes are
due, based upon any information in the commissioner's possession. An assessment issued against either the employer or the
taxpayer pursuant to this section shall not be considered an
election of remedies or a bar to an assessment against the other
for failure to report or pay the same tax. No assessment shall
be issued against any person if the tax actually has been paid by
another. No assessment shall
be made or issued against an employer, taxpayer, or
qualifying entity more than four years after the final date the return
subject to assessment was required to be filed or the date the
return was filed, whichever is later. However, the commissioner
may assess any balance due as the result of a reduction in the
credit allowed under division (B) of section 5747.05 of the
Revised Code, including applicable penalty and interest, within
four years of the date on which the taxpayer reports a change in
either the portion of the taxpayer's adjusted gross income
subjected to an income tax or tax measured by income in another
state or the District of Columbia or the amount of liability for
an income tax or tax measured by income to another state or the
District of Columbia, as required by division (B)(3) of section
5747.05 of the Revised Code. Such time limits may be extended if
both the employer, taxpayer, or qualifying
entity and the commissioner consent in
writing to the extension. Any such extension shall extend the
four-year time limit in division (B) of section 5747.11
of the Revised Code for the same period of
time. There shall be no bar or limit to an assessment against an
employer for taxes withheld from employees and not remitted to
the state, against an employer, taxpayer,
or qualifying entity that fails to file a
return subject to assessment as required by this chapter, or
against an employer, taxpayer, or
qualifying entity that files a fraudulent return. The commissioner shall give the party assessed written
notice of the assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom the notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice of assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by the party's authorized agent having knowledge
of the facts and makes payment of the portion of the assessment
required by division (E) of this section, the assessment shall
become final, and the amount of the assessment shall
be due and payable from the party assessed to the commissioner with
remittance made payable to the treasurer of state. The petition
shall indicate the objections of the party assessed, but
additional objections may be raised in writing if received prior
to the date shown on the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to an assessment
as the commissioner finds proper. The commissioner shall
serve a copy of a final determination on the petitioner by
personal service or certified mail, and the commissioner's decision in the
matter shall be final, subject to appeal as provided in section 5717.02 of the
Revised Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the commissioner's entry making the assessment final may be
filed in the office of the clerk of the court of common pleas in the
county in which the employer's, taxpayer's, or qualifying entity's place of
business is located or the county in which the party assessed resides. If
the party assessed is not a resident of this state, the certified
copy of the entry may be filed in the office of the clerk of the
court of common pleas of Franklin county. Immediately upon the filing of the entry, the clerk shall
enter a judgment against the party assessed in the amount shown
on the entry. The judgment shall be filed by the clerk in one of
two loose-leaf books, one entitled "special judgments for state
and school district income taxes," and the other entitled "special judgments
for qualifying entity taxes." The judgment shall have the same effect
as other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid
within thirty sixty days after the assessment was issued shall
bear interest
at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax
commissioner issues the assessment until it is paid. Interest shall be
paid in the same manner as the tax and may be collected by the issuance of an
assessment under this section. (D) All money collected under this section shall be
considered as revenue arising from the taxes imposed by this
chapter or Chapter 5733. or 5748. of the Revised Code, as appropriate. (E) The portion of an assessment which must be paid upon
the filing of a petition for reassessment shall be as follows: (1) If the sole item objected to is the assessed penalty
or interest, full payment of the assessment, including
interest but
not penalty and
interest, is required; (2) If the taxpayer or qualifying entity that is assessed failed to
file, prior to the
date of issuance of the assessment, the annual return or report
required by section 5747.08 or 5747.42 of the Revised Code, any amended
return or amended report required
by section 5747.10 or 5747.45 of the Revised Code for the taxable year at
issue, or any report required by division (B) of section 5747.05
of the Revised Code to indicate a reduction in the amount of the
credit provided under that division, full payment of the
assessment, including interest but not penalty and
interest, is required, except as
otherwise provided under division (E)(6) or (7) of this section; (3) If the employer assessed had not filed, prior to the
date of issuance of the assessment, the annual return required by
division (E)(2) of section 5747.07 of the Revised Code covering
the period at issue, full payment of the assessment, including
interest but not penalty and interest, is required; (4) If the taxpayer or qualifying entity that is assessed filed, prior
to the date of
issuance of the assessment, the annual return or report required by
section
5747.08 or 5747.42 of the Revised Code, all amended returns
or reports required by
section 5747.10 or 5747.45 of the Revised Code for the taxable
year at issue, and all reports required by division (B) of section
5747.05 of the Revised Code to indicate a reduction in the amount
of the credit provided under that division, and a balance of the
taxes shown due on the returns or reports as computed on the
returns or reports remains unpaid, payment of only that portion
of the assessment representing the unpaid balance of tax and interest
is required; (5) If the employer assessed filed, prior to the date of
issuance of the assessment, the annual return required by
division (E)(2) of section 5747.07 of the Revised Code covering
the period at issue, and a balance of the taxes shown due on the
return as computed on the return remains unpaid, payment of only
that portion of the assessment representing the unpaid balance of tax and
interest is
required; (6) In the case of a party assessed as a qualifying entity
subject to the tax levied under section 5733.41 or 5747.41 of the Revised
Code, if the party does not dispute that it is a qualifying entity
subject to that tax but claims the protections of section 101 of
Public Law 86-272, 73 Stat. 555, 15 U.S.C.A. 381, as amended, no payment is
required; (7) In the case of a party assessed as a qualifying entity subject
to the tax levied under section 5733.41 or 5747.41 of the Revised Code, if the
party does dispute that it is a qualifying entity subject
to that tax, no payment is required; (8) If none of the conditions specified in divisions
(E)(1) to (7) of this section apply, no payment is required. (F) Notwithstanding the fact that a petition for
reassessment is pending, the petitioner may pay all or a portion
of the assessment that is the subject of the petition. The
acceptance of a payment by the treasurer of state does not
prejudice any claim for refund upon final determination of the
petition. If upon final determination of the petition an error in the
assessment is corrected by the commissioner, upon petition so
filed or pursuant to a decision of the board of tax appeals or
any court to which the determination or decision has been
appealed, so that the amount due from the party assessed under
the corrected assessment is less than the portion paid, there
shall be issued to the petitioner or to the petitioner's assigns
or legal representative a refund in the amount of the overpayment as
provided by section 5747.11 of the Revised Code, with interest on
that amount as provided by such section, subject to section
5747.12 of the Revised Code. Sec. 5747.15. (A) In addition to any other penalty
imposed by this chapter or Chapter 5703. of the Revised Code, the
following penalties shall apply: (1) If a taxpayer, qualifying entity, or employer required to file any report
or return, including an informational notice, report, or return,
under this chapter
fails to make and file the report or return within the time prescribed,
including any extensions of time granted by the tax commissioner,
a penalty shall may be imposed equal to not
exceeding the greater of fifty dollars
per month or fraction of a month, not to exceed five hundred
dollars, or five per cent per month or fraction of a month, not
to exceed fifty per cent, of the sum of the taxes required to be
shown on the report or return, for each month or fraction of a month
elapsing between the due date, including extensions of the due
date, and the date on which filed. (2) If a taxpayer fails to pay any amount of tax required
to be paid under section 5733.41 or 5747.41 or Chapter 5748. of the Revised
Code, except estimated tax under section 5747.09 or 5747.43 of
the Revised Code, by the dates prescribed for payment, a penalty shall
may be
imposed equal to not exceeding twice the applicable interest
charged under division
(G) of section 5747.08 of the Revised Code for the delinquent payment. (3)(a) If an employer fails to pay any amount of tax imposed by
section 5747.02 of the Revised Code and required to be paid under this chapter
by the dates prescribed for payment, a penalty shall may be
imposed equal to not exceeding the
sum of ten per cent of the delinquent payment plus twice the interest charged
under division (F)(5) of section 5747.07 of the Revised Code for
the delinquent payment. (b) If a qualifying entity fails to pay any amount of tax imposed
by section 5733.41 or 5747.41 of the Revised Code
and required to be paid under this chapter by the dates
prescribed for payment, a penalty shall may be imposed equal
to not exceeding the
sum of ten per cent of the delinquent payment plus twice the
applicable interest charged under division
(G) of section 5747.08 of the Revised
Code for the delinquent payment. (4)(a) If an employer withholds from employees the
tax imposed by section 5747.02 of the Revised Code and fails to remit the tax withheld to
the state as required by this
chapter on or before the dates prescribed for payment, a penalty
shall may be imposed equal to not exceeding fifty
per cent of the delinquent
payment. (b) If a qualifying entity withholds any amount of tax imposed
under section 5747.41 of the Revised Code
from an individual's qualifying amount and fails to remit that
amount to the state as required by sections 5747.42 to 5747.453
of the Revised Code on or before the dates prescribed for payment, a penalty
shall may be imposed equal to not exceeding fifty
per cent of the delinquent payment. (5) If a taxpayer, qualifying entity, or employer files what purports to be a
return required by this chapter that does not contain information
upon which the substantial correctness of the return may be
judged or contains information that on its face indicates that
the return is substantially incorrect, and the filing of the
return in that manner is due to a position that is frivolous or a
desire that is apparent from the return to delay or impede the
administration of the tax levied by section 5733.41,
5747.02, or 5747.41, or Chapter 5748.
of the Revised Code, a penalty of up to five hundred dollars
shall may be imposed. (6) If a taxpayer or qualifying entity makes a fraudulent attempt to
evade the reporting or payment of the tax required to be shown on any
return required under this chapter, a penalty shall may be
imposed
equal to not exceeding the greater of one thousand dollars or
one hundred per
cent of the tax required to be shown on the return. (7) If any person makes a false or fraudulent claim for a
refund under this chapter, a penalty shall may be imposed
equal to not exceeding
the greater of one thousand dollars or one hundred per cent of
the claim. The penalty imposed under division (A)(7) of this
section, any refund issued on the claim, and interest on any
refund from the date of the refund, may be assessed under section
5747.13 of the Revised Code as tax, penalty, or interest imposed
under section 5733.41, 5747.02, or 5747.41 of the Revised Code,
without regard to whether the person making
the claim is otherwise subject to the provisions of this chapter or
Chapter 5733. of the Revised Code,
and without regard to any time limitation for the assessment
imposed by division (A) of section 5747.13 of the Revised Code. (B) For purposes of this section, the taxes required to be
shown on the return shall be reduced by the amount of any part of
the taxes paid on or before the date, including any extensions of
the date, prescribed for filing the return. (C) Any penalty imposed under this section shall be in
addition to all other penalties imposed under this section. All
or part of any penalty imposed under this section may be abated
by the commissioner. All or part of any penalty imposed under
this section may be abated by the commissioner if the taxpayer,
qualifying entity, or employer shows that the failure to comply with
the provisions of this
chapter is due to reasonable cause and not willful neglect. Sec. 5749.07. (A) If any severer required by this chapter
to make and file returns and pay the tax levied by section
5749.02 of the Revised Code, fails to make such return or pay
such tax, the tax commissioner may make an assessment against the
severer based upon any information in the commissioner's possession. No assessment shall be made or issued against any severer
for any tax imposed by section 5749.02 of the Revised Code more
than four years after the return was due or was filed, whichever
is later. This section does not bar an assessment against a
severer who fails to file a return as required by this chapter,
or who files a fraudulent return. The commissioner shall give the party assessed written
notice of such assessment by personal service or certified mail as
provided in section 5703.37 of the Revised Code. (B) Unless the party to whom such notice of assessment is
directed files with the commissioner within thirty sixty days
after
service of the notice assessment, either personally or by
certified mail, a petition for reassessment in writing, signed by
the party assessed, or by an authorized agent of the
party assessed having knowledge of the facts, the assessment shall become
final and the
amount of the assessment shall be due and payable from the party
assessed to the treasurer of state. The petition shall indicate
the objections of the party assessed, but additional objections
may be raised in writing if received prior to the date shown on
the final determination by the commissioner. Unless the petitioner waives a hearing, the commissioner
shall assign a time and place for the hearing on the petition and
notify the petitioner of the time and place of the hearing by
personal service or certified mail, but the commissioner may
continue the hearing from time to time if necessary. The commissioner may make such correction to the assessment
as the commissioner finds proper. The commissioner shall
serve a copy of the final determination on the petitioner by personal service
or by certified mail, and the commissioner's decision in the
matter shall be final, subject to appeal as provided in section 5717.02 of the
Revised Code. Only objections decided on the merits by the board of tax
appeals or a court shall be given collateral estoppel or res
judicata effect in considering an application for refund of
amounts paid pursuant to the assessment. (C) After an assessment becomes final, if any portion of
the assessment remains unpaid, including accrued interest, a
certified copy of the
commissioner's entry making the assessment final may be filed in
the office of the clerk of the court of common pleas in the
county in which the party assessed resides or in which the
party's business is conducted. If the party assessed maintains
no place of business in this state and is not a resident of this
state, the certified copy of the entry may be filed in the office
of the clerk of the court of common pleas of Franklin county. The clerk, immediately upon the filing of such entry, shall
enter a judgment for the state against the party assessed in the
amount shown on the entry. The judgment may be filed by the
clerk in a loose-leaf book entitled "special judgments for state
severance tax," and shall have the same effect as
other judgments. Execution shall issue upon the judgment upon
the request of the tax commissioner, and all laws applicable to
sales on execution shall apply to sales made under the judgment. The portion of the assessment not paid within
thirty sixty days after the day the assessment is issued shall
bear
interest at the rate per annum prescribed by section 5703.47 of the
Revised Code from the day the tax commissioner issues the assessment until
it is paid. Interest shall be paid in the same manner as the tax and may be
collected by the issuance of an assessment under this section. (D) All money collected by the commissioner under this
section shall be paid to the treasurer of state, and when paid
shall be considered as revenue arising from the tax imposed by
section 5749.02 of the Revised Code. Sec. 5749.08. The tax commissioner shall refund to taxpayers the amount of
taxes paid illegally or erroneously or paid on an illegal or erroneous
assessment. Applications for refund shall be filed with the tax commissioner,
on the form prescribed by him the commissioner, within four
years from the date of the illegal
or erroneous payment of the tax. On the filing of such application the
commissioner shall determine the amount of refund due plus interest
computed in accordance with section 5703.47 of the Revised
Code from the date of the payment of an erroneous or illegal
assessment until the
date the refund is paid and certify such amount
to the director of budget and management and treasurer of state payment from
the tax refund created by section 5703.052 of the Revised Code. Sec. 5749.15. Any person who fails to file a return or pay the tax as
required
who is assessed such taxes pursuant to section 5749.07 or 5749.10 of the
Revised Code is may be liable for a penalty of five per cent
per month or portion of
a month on the amount of the unpaid taxes due, not to exceed a maximum penalty
of up to twenty-five per cent of the amount assessed. The
tax commissioner may remit all or a portion of
the penalty, and may adopt rules relating to the imposition and
remission of penalties
imposed under this section. SECTION 2 . That existing sections 3734.904, 3734.907, 3769.088,
4301.422, 4303.33, 4305.13, 4305.131, 5703.05, 5703.11, 5703.37, 5705.37,
5711.04, 5711.18, 5711.25, 5711.28, 5711.31, 5717.01, 5717.02,
5727.11, 5727.26, 5727.47, 5727.89, 5728.01, 5728.02, 5728.03,
5728.04, 5728.06, 5728.08, 5728.09, 5728.10, 5733.11, 5733.28,
5735.01, 5735.023, 5735.05, 5735.12, 5735.121, 5735.14, 5735.141,
5735.142, 5735.145, 5735.18, 5735.23, 5739.01, 5739.02, 5739.03,
5739.032, 5739.033, 5739.12, 5739.122, 5739.13, 5739.133, 5739.15,
5739.17, 5739.19, 5739.30, 5741.02, 5741.121, 5743.03, 5743.081,
5743.082, 5743.52, 5743.56, 5747.07, 5747.09, 5747.13, 5747.15, 5749.07,
5749.08, and 5749.15 and sections 5703.141, 5735.17, 5735.32,
5739.161, and 5747.082 of the Revised Code are hereby repealed.
SECTION 3 . That the version of section 5741.02 of the Revised
Code that is to take effect July 1, 2001, be amended to read as
follows:
Sec. 5741.02. (A) For the use of the general revenue fund
of the state, an excise tax is hereby levied on the storage, use,
or other consumption in this state of tangible personal property
or the benefit realized in this state of any service provided.
The tax shall be collected pursuant to the schedules in section
5739.025 of the Revised Code. (B) Each consumer, storing, using, or otherwise consuming
in this state tangible personal property or realizing in this
state the benefit of any service provided, shall be liable for the
tax, and such liability shall not be extinguished until the tax
has been paid to this state; provided, that the consumer shall be
relieved from further liability for the tax if the tax has been
paid to a seller in accordance with section 5741.04 of the
Revised Code or prepaid by the seller in accordance with section
5741.06 of the Revised Code. (C) The tax does not apply to the storage, use, or
consumption in this state of the following described tangible
personal property or services, nor to the storage, use, or
consumption or benefit in this state of tangible personal
property or services purchased under the following described
circumstances: (1) When the sale of property or service in this state is
subject to the excise tax imposed by sections 5739.01 to 5739.31
of the Revised Code, provided said tax has been paid; (2) Except as provided in division (D) of this section,
tangible personal property or services, the acquisition of which,
if made in Ohio, would be a sale not subject to the tax imposed
by sections 5739.01 to 5739.31 of the Revised Code; (3) Property or services, the storage, use, or other
consumption of or benefit from which this state is prohibited
from taxing by the Constitution of the
United States, laws of the
United States, or the Constitution of this
state. This exemption
shall not exempt from the application of the tax imposed by this
section the storage, use, or consumption of tangible personal
property that was purchased in interstate commerce, but
that has come to rest in this state, provided that fuel to
be used or
transported in carrying on interstate commerce that is
stopped within this state pending transfer from one conveyance to another
is exempt from the excise tax imposed by this section and section
5739.02 of the Revised Code; (4) Transient use of tangible personal property in this
state by a nonresident tourist or vacationer, or a non-business
use within this state by a nonresident of this state, if the
property so used was purchased outside this state for use outside
this state and is not required to be registered or licensed under
the laws of this state; (5) Tangible personal property or services rendered upon
which taxes have been paid to another jurisdiction to the extent
of the amount of the tax paid to such other jurisdiction. Where
the amount of the tax imposed by this section and imposed
pursuant to section 5741.021, 5741.022, or 5741.023 of the
Revised Code exceeds the amount paid to another jurisdiction, the
difference shall be allocated between the tax imposed by this
section and any tax imposed by a county or a transit authority
pursuant to section 5741.021, 5741.022, or 5741.023 of the
Revised Code, in proportion to the respective rates of such
taxes. As used in this subdivision, "taxes paid to another
jurisdiction" means the total amount of retail sales or use tax
or similar tax based upon the sale, purchase, or use of tangible
personal property or services rendered legally, levied by and paid
to another state or political subdivision thereof, or to the
District of Columbia, where the payment of such tax does not
entitle the taxpayer to any refund or credit for such payment. (6) The transfer of a used manufactured home or used mobile home,
as defined by section 5739.0210 of the Revised Code,
made on or after January 1, 2000; (7) Drugs that are or are intended to be distributed free of charge to a
practitioner licensed to prescribe, dispense, and administer drugs to a human
being in the course of a professional practice and that by law may be
dispensed only by or upon the order of such a practitioner. (D) The tax applies to the storage, use, or other
consumption in this state of tangible personal property or
services, the acquisition of which at the time of sale was
excepted under division (E)(1) of section 5739.01 of the Revised
Code from the tax imposed by section 5739.02 of the Revised Code,
but which has subsequently been temporarily or permanently
stored, used, or otherwise consumed in a taxable manner. (E) If any transaction is claimed to be exempt under division (E)
of
section 5739.01 of the Revised Code or under section 5739.02
of the Revised Code, with the exception of divisions (B)(1) to (11)
or (28) of section 5739.02 of the Revised Code, the consumer shall
furnish to the seller, and the seller shall obtain from the consumer, a
certificate specifying the reason that the transaction is
not subject to the tax. If the transaction is claimed to be exempt under
division (B)(13) of section 5739.02 of the Revised Code,
the exemption certificate shall be signed by both the contractor and
contractee, and the contractee shall be deemed to be the consumer of all items
purchased
under the claim of exemption if it is subsequently determined that
the exemption is not properly claimed. The certificate shall be
in such form as the tax commissioner by rule prescribes. If no
certificate is furnished or obtained within the period for filing
the return for the period in which the transaction is consummated,
it shall be presumed that the tax applies. The failure to have so
furnished or obtained a certificate shall not preclude a seller or
consumer from establishing, within one hundred twenty days of the
giving of notice by the commissioner of intention to levy an
assessment, that the transaction is not subject to the tax. (F) A seller who files a petition for reassessment contesting the
assessment of tax on transactions for which the seller obtained no valid
exemption certificates and for which the seller failed
to establish that the transactions were not subject to the tax
during the one-hundred-twenty-day period allowed under division
(E) of this section may present to the tax commissioner additional
evidence to prove that the transactions were exempt. The seller
shall file such evidence within ninety days of the receipt by the
seller of the notice of assessment, except that, upon application
and for reasonable cause, the tax commissioner may extend the
period for submitting such evidence thirty days. (G) For the purpose of the proper administration of
sections 5741.01 to 5741.22 of the Revised Code, and to prevent
the evasion of the tax hereby levied, it shall be presumed that
any use, storage, or other consumption of tangible personal
property in this state is subject to the tax until the contrary
is established. SECTION 4 . That the existing version of section 5741.02 of the
Revised Code that is to take effect July 1, 2001, is hereby
repealed.
SECTION 5 . Section 4301.422 of the Revised Code is presented in this act
as a composite of the section as amended by both
Sub. H.B. 239 and Am. Sub. S.B. 188 of the 121st General Assembly, with the
new language of
neither of the acts shown in capital letters.
Section 5739.02 of the Revised Code is presented in this act
as a composite of the section as amended by both
Sub. H.B. 223 and Am. Sub. S.B. 3 of the 123rd General Assembly,
with the new language of neither of the acts shown in capital letters.
This is in recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such is the resulting version in
effect prior to the effective date of this act.
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