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As Passed by the House
123rd General Assembly
Regular Session
1999-2000 | Am. H. B. No. 99 |
REPRESENTATIVES YOUNG-AMSTUTZ-BEATTY-BRADING-BUCHY-
CALLENDER-CAREY-CATES-CORBIN-CORE-COUGHLIN-
DAMSCHRODER-EVANS-FLANNERY-GARDNER-GRENDELL-
HARTNETT-HOOD-HOUSEHOLDER-JACOBSON-JERSE-JONES-
JORDAN-KREBS-LUCAS-MAIER-MEAD-R.MILLER-MOTTLEY-MYERS-
NETZLEY-OLMAN-PATTON-PRINGLE-ROMAN-SALERNO-SCHUCK-
SCHULER-SULLIVAN-TAYLOR-TERWILLEGER-VESPER-VAN VYVEN-
WESTON-WILLAMOWSKI-WILLIAMS-HOLLISTER-BRITTON-BARNES-
JOLIVETTE-HAINES-AUSTRIA-PERRY-PETERSON-BUEHRER-GOODMAN-
WINKLER-CLANCY-TIBERI-DePIERO-D.MILLER-HARRIS-SCHURING-
SUTTON-STAPLETON-HOOPS-THOMAS-WILSON-OGG
A BILL
To amend sections 5733.26 and 5747.08 and to enact sections 5733.261 and
5747.132 of the Revised Code to
eliminate the payment of interest by a taxpayer on repayment of certain excess
refunds of
state income or corporation franchise
taxes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5733.26 and 5747.08 be amended and sections 5733.261
and 5747.132 of the Revised
Code be enacted to read as follows:
Sec. 5733.26. (A) If EXCEPT AS PROVIDED IN SECTION
5733.261 OF THE REVISED CODE, IF the tax imposed by
section 5733.06 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 for its payment, interest shall be assessed,
collected, and paid, in the same manner as the tax, upon such
unpaid amount at the rate per annum prescribed by section 5703.47
of the Revised Code from the date prescribed for its payment
until it is paid or until the day an assessment is issued under section
5733.11 of the Revised Code, whichever occurs first.
(B) Interest shall be allowed and paid at the rate per
annum prescribed by section 5703.47 of the Revised Code upon
amounts refunded with respect to the tax imposed by
section 5733.06 of the Revised Code. The interest shall run from whichever
of the following dates is
the latest until the date the refund is paid: the date of the
illegal, erroneous, or excessive payment; the ninetieth day after
the final date the annual report under section 5733.02 of the
Revised Code was required to be filed; or the ninetieth day after
the date that report was filed.
If the overpayment results from the carryback of a net
capital loss to a previous taxable year, the overpayment is
deemed not to have been made prior to the filing date, including
any extension thereof, for the taxable year in which the net
capital loss arises.
Sec. 5733.261. (A) AS
USED IN THIS SECTION, "QUALIFYING REFUND OVERPAYMENT" MEANS AN
AMOUNT RECEIVED BY A TAXPAYER IN EXCESS OF A REFUND OR REQUEST
FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE TAXPAYER
ON A RETURN, REPORT, OR OTHER DOCUMENT FILED WITH THE TAX
COMMISSIONER.
(B) A TAXPAYER IS NOT
LIABLE FOR ANY INTEREST OR PENALTY WITH RESPECT TO THE REPAYMENT
OF A QUALIFYING REFUND OVERPAYMENT IF THE TAXPAYER PAYS THE
ENTIRE AMOUNT OF THE OVERPAYMENT TO THE TAX COMMISSIONER NOT
LATER THAN THIRTY DAYS AFTER THE TAXPAYER RECEIVES AN ASSESSMENT
FOR IT. IF THE TAXPAYER DOES NOT PAY THE ENTIRE AMOUNT OF THE
OVERPAYMENT TO THE COMMISSIONER WITHIN THE TIME PRESCRIBED
BY THIS SECTION, INTEREST SHALL ACCRUE ON THE AMOUNT OF THE
DEFICIENCY PURSUANT TO SECTION 5733.11 OF THE
REVISED CODE FROM THE DAY THE
COMMISSIONER ISSUES THE ASSESSMENT UNTIL THE DEFICIENCY IS
PAID.
Sec. 5747.08. An annual return with respect to the tax
imposed by section 5747.02 of the Revised Code and each tax
imposed under Chapter 5748. of the Revised Code shall be made by
every taxpayer for any taxable year for which the taxpayer is
liable for the tax imposed by that section or under that chapter,
unless the total credits allowed under divisions (E), (F), and
(G) of section 5747.05 of the Revised Code for the year are equal
to or exceed the tax imposed by section 5747.02 of the Revised
Code, in which case no return shall be required unless the
taxpayer is liable for a tax imposed pursuant to Chapter 5748. of
the Revised Code.
(A) If an individual is deceased, any return or notice
required of that individual under this chapter shall be made and
filed by that decedent's executor, administrator, or other
person charged with the property of that decedent.
(B) If an individual is unable to make a return or notice
required by this chapter, the return or notice required of that individual
shall be made and filed by the individual's duly authorized agent,
guardian, conservator, fiduciary, or other person charged with
the care of the person or property of that individual.
(C) Returns or notices required of an estate or a trust
shall be made and filed by the fiduciary of the estate or trust.
(D)(1)(a) Except as otherwise provided in
division (D)(1)(b) of this section, any
pass-through entity
may file a single return on behalf of
one or more of the entity's investors other than an investor that is a
person subject
to the tax imposed under section 5733.06 of the Revised Code. The single
return shall set forth the name, address, and social security number of each
of those
pass-through entity investors
and shall indicate the distributive share of each of those
pass-through entity investor's income taxable in this state
in accordance with sections 5747.20 to
5747.231 of the
Revised
Code. Such
pass-through entity investors for whom the pass-through entity
elects to file a single return are not entitled to the exemption
or credit provided for by sections 5747.02 and 5747.022 of the
Revised
Code; shall calculate the tax
before business credits at the highest rate of tax set forth in
section 5747.02 of the Revised
Code for the taxable year for
which the return is filed; and are entitled to only their
distributive share of the business credits as defined in
division (D)(2) of this
section. A single check drawn by the pass-through entity shall
accompany
the return in full payment of the tax due
for such investors other than investors who are persons
subject to the tax imposed under section 5733.06 of the
Revised Code.
(b)(i) A pass-through entity shall not
include in such a single return any investor that is a trust to
the extent that any direct or indirect current, future, or
contingent beneficiary of the trust is a person subject to the
tax imposed under section 5733.06 of the
Revised Code.
(ii) A pass-through entity shall
not include in such a single return any investor that is itself
a pass-through entity to the extent that any direct or indirect
investor in the second pass-through entity is a person subject
to the tax imposed under section 5733.06 of the
Revised Code.
(c) Nothing in division
(D) of this section precludes
the tax commissioner from requiring such investors to file the
return and make the payment of taxes and related interest,
penalty, and interest penalty required by this section or
section 5747.02, 5747.09, or 5747.15 of the
Revised Code. Nothing in division
(D) of this section shall be
construed to provide to such an investor or pass-through entity
any additional deduction or credit, other than the credit
provided by division (J) of
this section, solely on account of the entity's filing a return
in accordance with this section. Such a pass-through entity also
shall make the filing
and payment of estimated taxes on behalf of the pass-through entity
investors other than an
investor that is a person subject to the tax imposed under section 5733.06
of the Revised Code.
(2) For the purposes of
this section, "business credits" means the credits
listed in section 5747.98 of the
Revised
Code excluding the following
credits:
(b)(a) The retirement credit under division (B) of section
5747.055 of
the Revised Code;
(c)(b) The senior citizen credit under
division (C) of section 5747.05 of the Revised Code;
(d)(c) The lump sum distribution credit
under division (D) of section
5747.05 of the Revised
Code;
(e)(d) The dependent care credit under
section 5747.054 of the Revised
Code;
(f)(e) The lump sum retirement income
credit under division (C) of
section 5747.055 of the Revised
Code;
(g)(f) The lump sum retirement income
credit under division (D) of
section 5747.055 of the Revised
Code;
(h)(g) The lump sum retirement income
credit under division (E) of
section 5747.055 of the Revised
Code;
(i)(h) The credit for displaced workers
who pay for job training under section 5747.27 of the
Revised
Code;
(j)(i) The twenty-dollar personal
exemption credit under section 5747.022 of the
Revised
Code;
(k)(j) The joint filing credit under
division (G) of section 5747.05
of the Revised
Code;
(l)(k) The nonresident credit under
division (A) of section 5747.05
of the Revised
Code;
(m)(l) The credit for a resident's
out-of-state income under division
(B) of section 5747.05 of the
Revised
Code.
(3) The election provided for under division
(D) of this section applies
only to the taxable year for which the election is made by the
pass-through entity. Unless the tax commissioner provides
otherwise, this election, once made, is binding and irrevocable
for the taxable year for which the election is made. Nothing in
this division shall be construed to provide for any deduction or
credit that would not be allowable if a nonresident pass-through
entity investor were to file an annual return.
(4) If a pass-through entity makes the election provided
for under division (D) of this
section, the pass-through entity shall be liable for any
additional taxes, interest, interest penalty, or penalties imposed by this
chapter
if the tax commissioner determines that the single return does
not reflect the correct tax due by nonresident pass-through
entity investors covered by that return. Nothing in this
division shall be construed to limit or alter the liability, if
any, imposed on pass-through entity investors for unpaid or
underpaid taxes, interest, interest penalty, or penalties as a result of the
pass-through entity's making the election provided for under
division (D) of this section.
For the purposes of division
(D) of this section,
"correct tax due" means the tax that would have been
paid by the pass-through entity had the single return been filed
in a manner reflecting and including the findings and
determinations made by the tax commissioner. Nothing in
division (D) of this section
shall be construed to make or hold a pass-through entity liable
for tax attributable to a pass-through entity investor's
income from a source other than the pass-through entity electing
to file the single return.
(E) If a husband and wife file a joint federal income tax
return for a taxable year, they shall file a joint return under
this section for that taxable year, and their liabilities are
joint and several, but, if the federal income tax liability of
either spouse is determined on a separate federal income tax
return, they shall file separate returns under this section.
If either spouse is not required to file a federal income
tax return and either or both are required to file a return
pursuant to this chapter, they may elect to file separate or
joint returns, and, pursuant to that election, their liabilities are
separate or joint and several. If a husband and wife file
separate returns pursuant to this chapter, each must claim the taxpayer's
own exemption, but not both, as authorized under
section
5747.02 of the Revised Code on the taxpayer's own
return.
(F) Each return or notice required to be filed under this
section shall contain the signature of the taxpayer
or the taxpayer's duly authorized
agent and of the person who prepared the return for the
taxpayer, and shall include the taxpayer's social security
number. Each return shall be verified by a declaration
under the penalties of perjury. The tax commissioner shall prescribe the
form that the signature and declaration shall take.
(G) Each return or notice required to be filed under this
section shall be made and filed as required by section 5747.04 of
the Revised Code, on or before the fifteenth day of April of each
year, on forms that the tax commissioner shall prescribe,
together with remittance made payable to the treasurer of state
in the combined amount of the state and all school district
income taxes shown to be due on the form, unless the combined amount
shown to be due is one dollar or less, in which case that amount
need not be remitted.
Upon good cause shown, the commissioner may extend the
period for filing any notice or return required to be filed under
this section and may adopt rules relating to extensions. If the
extension results in an extension of time for the payment of any
state or school district income tax liability with respect to
which the return is filed, the taxpayer shall pay at the time the
tax liability is paid an amount of interest computed at the rate
per annum prescribed by section 5703.47 of the Revised Code on
that liability from the time that payment is due without
extension to the time of actual payment. In EXCEPT AS
PROVIDED IN SECTION 5747.132 OF THE REVISED CODE, IN
addition to all
other interest charges and penalties, all taxes imposed under this chapter
or Chapter 5748. of the
Revised
Code and remaining
unpaid after they become due, except combined amounts due of one
dollar or less, bear interest at the rate per annum prescribed by
section 5703.47 of the Revised Code until paid or until the day an
assessment is issued under section 5747.13 of the Revised Code, whichever
occurs first. If
IF the commissioner
considers it necessary in order to ensure the payment of the tax imposed by
section 5747.02 of the Revised Code or any tax imposed under
Chapter 5748. of the Revised Code, the commissioner may require
returns and payments to be made otherwise than as provided in
this section.
(H) If any report, claim, statement, or other document
required to be filed, or any payment required to be made, within
a prescribed period or on or before a prescribed date under this
chapter is delivered after that period or that date by United
States mail to the agency, officer, or office with which the report, claim,
statement, or other document is required to be
filed, or to which the payment is required to be made, the date
of the postmark stamped on the cover in which the report, claim,
statement, or other document, or payment is mailed shall be
deemed to be the date of delivery or the date of payment.
If a payment is required to be made by electronic funds
transfer pursuant to section 5747.072 of the Revised Code, the
payment is considered to be made when the payment is received by
the treasurer of state or credited to an account designated by
the treasurer of state for the receipt of tax payments.
"The date of the postmark" means, in the event there
is more than one date on the cover, the earliest date imprinted
on the cover by the United States postal service.
(I) The amounts withheld by the employer pursuant to
section 5747.06 of the Revised Code shall be allowed to the
recipient of the compensation as credits against payment of the
appropriate taxes imposed on the recipient by section
5747.02 and under Chapter 5748. of the Revised Code.
(J) If, in accordance
with division (D) of this
section, a pass-through entity elects to file a single return
and if any investor is required to file the return and make the
payment of taxes required by this chapter on account of the
investor's other income that is not included in a single return
filed by a pass-through entity, the investor is entitled to a
refundable credit equal to the investor's proportionate share of
the tax paid by the pass-through entity on behalf of the
investor. The investor shall claim the credit for the
investor's taxable year in which or with which ends the taxable
year of the pass-through entity. Nothing in this chapter shall
be construed to allow any credit provided in this chapter to be
claimed more than once. For the purposes of computing any
interest, penalty, or interest penalty, the investor shall be
deemed to have paid the refundable credit provided by this
division on the day that the pass-through entity paid the
estimated tax or the tax giving rise to the credit.
Sec. 5747.132. (A) AS USED IN THIS SECTION:
(1) "QUALIFYING TAXPAYER" MEANS A TAXPAYER, EMPLOYER, OR
QUALIFYING ENTITY.
(2) "QUALIFYING REFUND OVERPAYMENT" MEANS AN AMOUNT
RECEIVED BY A QUALIFYING TAXPAYER IN EXCESS OF A REFUND OR
REQUEST FOR PAYMENT CLAIMED OR MADE BY OR ON BEHALF OF THE
QUALIFYING TAXPAYER ON A RETURN, REPORT, OR OTHER DOCUMENT
FILED WITH THE TAX COMMISSIONER.
(B) A QUALIFYING
TAXPAYER IS NOT LIABLE FOR ANY INTEREST OR PENALTY WITH RESPECT
TO THE REPAYMENT OF A QUALIFYING REFUND OVERPAYMENT IF THE
TAXPAYER PAYS THE ENTIRE AMOUNT OF THE OVERPAYMENT TO THE TAX
COMMISSIONER NOT LATER THAN THIRTY DAYS AFTER THE TAXPAYER
RECEIVES AN ASSESSMENT FOR IT. IF THE TAXPAYER DOES NOT PAY THE
ENTIRE AMOUNT OF THE OVERPAYMENT TO THE COMMISSIONER WITHIN
THE TIME PRESCRIBED BY THIS SECTION, INTEREST SHALL ACCRUE ON
THE AMOUNT OF THE DEFICIENCY PURSUANT TO SECTION 5747.13 OF THE
REVISED CODE FROM THE DAY THE
COMMISSIONER ISSUES THE ASSESSMENT UNTIL THE DEFICIENCY IS
PAID.
Section 2. That existing sections 5733.26 and 5747.08 of the
Revised Code are hereby repealed.
Section 3. The amendment or enactment by this act of sections 5733.26,
5733.261, 5747.08, and
5747.132 of the Revised Code shall be applied to prohibit the
accrual of interest or penalty with respect to tax refund overpayment
assessments
received by taxpayers after the
effective date of this act, regardless of the time of claim for
the refund.
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