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Sub. H. B. No. 117As Passed by the House
As Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Willamowski, Metelsky, Grendell, Calvert, Callender, Seitz, Ogg, Jones, Allen, Redfern, Britton, Jerse, Lendrum, Barrett, Hollister, Schaffer, Beatty, Coates, Hartnett, Widowfield, G. Smith, Carano, Hoops, Niehaus, Latta, Gilb, Hagan, Wolpert, Core, Manning, Flowers, Evans, Perry, Schmidt, Buehrer, Salerno, Cirelli, Driehaus, Sulzer, Distel, Wilson, Boccieri, Krupinski, Damschroder, Collier, Rhine, Patton, R. Miller, Schneider, Clancy, Otterman, Roman, Barnes, Key, Woodard, Webster, Cates, Hughes, Reidelbach, Carmichael, Olman, Young, D. Miller, DePiero
A BILL
To amend section 5739.02 of the Revised Code to
exempt from the sales and use tax items used to
assist handicapped persons in accessing or
operating motor
vehicles or to modify motor
vehicles for the
transportation of wheelchairs.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5739.02 of the Revised Code be
amended to read as follows:
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
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, labels, and parts for packages, and
of
machinery, equipment, and material for use primarily in
packaging
tangible personal property produced for sale, including
any machinery,
equipment, and supplies used to make labels or
packages, to prepare packages
or products for labeling, or to
label packages or products, 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)(a) 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;
(b) Sales of wheelchairs; items incorporated into or used in
conjunction with a motor vehicle for the purpose of transporting
wheelchairs, other than transportation conducted in connection
with the sale or delivery of wheelchairs; and items incorporated
into or used in conjunction with a motor vehicle that are
specifically designed to assist a person with a disability to
access or operate the motor vehicle. As used in this division,
"person with a disability" means any person who has lost the use
of one or both legs or one or both arms, who is blind, deaf, or
disabled to the extent that the person is unable to move about
without the aid of crutches or a wheelchair, or whose mobility is
restricted by a permanent cardiovascular, pulmonary, or other
disabling condition.
No
(c) 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, including trauma care and
emergency
medical 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 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. (28) Sales of animals by nonprofit animal adoption
services
or county humane societies; (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; (30) Sales and installation of agricultural land tile, as
defined in division (B)(5)(a) of section 5739.01 of the Revised
Code; (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; (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; (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; (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)(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. (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. (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)(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)(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. (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; (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; (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; (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. (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; (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.
Section 2. That existing section 5739.02 of the Revised Code
is hereby repealed.
Section 3. Section 5739.02 of the Revised Code is presented
in this act
as a composite of the section as amended by
Am. Sub.
H.B. 138, H.B. 612, and Am. Sub. H.B. 640 all of the 123rd General
Assembly.
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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