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S. B. No. 37 As IntroducedAs Introduced
125th General Assembly | Regular Session | 2003-2004 |
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Senator Blessing
A BILL
To amend sections 165.09, 902.11, 2915.01, 4505.06,
4981.20, 5739.01, 5739.02, 5739.03, 5739.11, and
5741.02 of the Revised Code to clarify who pays the
sales or use tax on packaging material used in
highway transportation for hire and to clarify when the transfer of motion picture films is a sale.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 165.09, 902.11, 2915.01, 4505.06,
4981.20, 5739.01, 5739.02, 5739.03, 5739.11, and 5741.02 of the
Revised Code be amended to read as follows:
Sec. 165.09. Any real or personal property, or both, of an
issuer
which
that is acquired, constructed, reconstructed,
enlarged,
improved, furnished or equipped, or any combination
thereof, and
leased or subleased under authority of either Chapter
165. or
761. of the Revised Code shall be subject to ad valorem,
sales,
use, and franchise taxes and to zoning, planning, and
building
regulations and fees, to the same extent and in the same
manner
as if the lessee-user or sublessee-user thereof, rather
than the
issuer, had acquired, constructed, reconstructed,
enlarged,
improved, furnished, or equipped, or any combination
thereof,
such real or personal property, and title thereto was in
the name
of such lessee-user or sublessee-user. The transfer of tangible personal property by lease or
sublease under authority of either Chapter 165. or 761. of the
Revised Code is not a sale as used in Chapter 5739. of the
Revised
Code. The exemptions provided in divisions (B)(1) and
(B)(14)(12)
of section 5739.02 of the Revised Code shall not be
applicable to
purchases for a project under either Chapters 165.
or 761. of the
Revised Code. An issuer shall be exempt from all taxes on its real or
personal property, or both,
which
that has been acquired,
constructed,
reconstructed, enlarged, improved, furnished, or
equipped, or any
combination thereof, under Chapter 165. or 761.
of the Revised
Code, so long as such property is used by the
issuer for purposes
which
that would otherwise exempt such
property; has ceased to be used
by a former lessee-user or
sublessee-user and is not occupied or
used; or has been acquired
by the issuer, but development has not
yet commenced. The
exemption shall be effective as of the date
the exempt use begins.
All taxes on the exempt real or personal
property for the year
should be prorated and the taxes for the
exempt portion of the
year shall be remitted by the county
auditor.
Sec. 902.11. (A) Any real or personal property, or both,
of
an issuer
which
that is acquired, constructed, reconstructed,
enlarged, improved, furnished, or equipped, or any combination
thereof, and leased or subleased under authority of this chapter
shall be subject to ad valorem, sales, use, and franchise taxes
and to zoning, planning, and building regulations and fees, to
the
same extent and in the same manner as if the lessee-user or
sublessee-user thereof, rather than the issuer, had acquired,
constructed, reconstructed, enlarged, improved, furnished, or
equipped, or any combination thereof, such real or personal
property, and title thereto was in the name of such lessee-user
or
sublessee-user. The transfer of tangible personal property by lease or
sublease under authority of this chapter is not a sale as used in
Chapter 5739. of the Revised Code. The exemptions provided in
divisions (B)(1) and
(14)(12) of section 5739.02 of the Revised
Code
shall not be applicable to purchases for a project under this
chapter. An issuer shall be exempt from all taxes on its real or
personal property, or both,
which
that has been acquired,
constructed,
reconstructed, enlarged, improved, furnished, or
equipped, or any
combination thereof, under this chapter so long
as such property
is used by the issuer for purposes
which
that
would otherwise exempt
such property; has ceased to be used by a
former lessee-user or
sublessee-user and is not occupied or used;
or has been acquired
by the issuer, but development has not yet
commenced. The
exemption shall be effective as of the date the
exempt use
begins. All taxes on the exempt real or personal
property for
the year should be prorated and the taxes for the
exempt portion
of the year shall be remitted by the county
auditor. (B) Bonds issued under this chapter, the transfer thereof,
and the interest and other income from the bonds, including any
profit made on the sale thereof, are free from taxation within
the
state.
Sec. 2915.01. As used in this chapter: (A) "Bookmaking" means the business of receiving or paying
off bets. (B) "Bet" means the hazarding of anything of value upon
the
result of an event, undertaking, or contingency, but does not
include a bona fide business risk. (C) "Scheme of chance" means a lottery, numbers game,
pool,
or other scheme in which a participant gives a valuable
consideration for a chance to win a prize. (D) "Game of chance" means poker, craps, roulette, a slot
machine, a punch board, or other game in which a player gives
anything of value in the hope of gain, the outcome of which is
determined largely or wholly by chance. (E) "Scheme or game of chance conducted for profit" means
any scheme or game of chance designed to produce income for the
person who conducts or operates the scheme or game of chance, but
does not include a charitable bingo game. (F) "Gambling device" means: (1) A book, totalizer, or other equipment for recording
bets; (2) A ticket, token, or other device representing a
chance,
share, or interest in a scheme of chance, except a
charitable
bingo game, or evidencing a bet; (3) A deck of cards, dice, gaming table, roulette wheel,
slot machine, punch board, or other apparatus designed for use in
connection with a game of chance; (4) Any equipment, device, apparatus, or paraphernalia
specially designed for gambling purposes. (G) "Gambling offense" means any of the following: (1) A violation of section 2915.02, 2915.03, 2915.04,
2915.05, 2915.07, 2915.08, 2915.09, 2915.10, or 2915.11
of the
Revised Code; (2) A violation of an existing or former municipal
ordinance
or law of this or any other state or the United States
substantially equivalent to any section listed in division (G)
(1)
of this section or a violation of section 2915.06 of the
Revised
Code as it existed prior to
the effective date of
this amendment
July
1, 1996; (3) An offense under an existing or former municipal
ordinance or law of this or any other state or the United States,
of which gambling is an element; (4) A conspiracy or attempt to commit, or complicity in
committing any offense under division (G)(1), (2), or (3) of this
section. (H) "Charitable organization" means any tax exempt
religious, educational, veteran's, fraternal, service, nonprofit
medical, volunteer rescue service, volunteer fire
fighter's,
senior
citizen's, youth athletic, amateur athletic, or youth
athletic
park organization.
An organization is tax exempt if the
organization is, and has
received from the internal revenue
service a determination letter
that currently is in effect stating
that the organization is,
exempt from federal income taxation
under subsection 501(a) and
described in subsection 501(c)(3),
501(c)(4), 501(c)(8),
501(c)(10), or 501(c)(19) of the Internal
Revenue Code. To
qualify as a charitable organization, an
organization, except a
volunteer rescue service or volunteer fire
fighter's
organization,
shall have been in continuous existence as
such in this state for
a period of two years immediately preceding
either the making of
an application for a bingo license under
section 2915.08 of the
Revised Code or the conducting of any
scheme of chance or game of
chance as provided in division (C) of
section 2915.02 of the
Revised Code. (I) "Religious organization" means any church, body of
communicants, or group that is not organized or operated for
profit and that gathers in common membership for regular worship
and
religious observances. (J) "Educational organization" means any organization
within
this state that is not organized for profit, the primary
purpose
of which is to educate and develop the capabilities of
individuals
through instruction, and that operates or contributes
to the
support of a school, academy, college, or university. (K) "Veteran's organization" means any individual post of
a
national veteran's association or an auxiliary unit of any
individual post of a national veteran's association, which post
or
auxiliary unit has been incorporated as a nonprofit
corporation
for at least two years and has received a letter from
the state
headquarters of the national veteran's association
indicating that
the individual post or auxiliary unit is in good
standing with the
national veteran's association. As used in
this division,
"national veteran's association" means any
veteran's association
that has been in continuous existence as
such for a period of at
least ten years and either is
incorporated by an act of the United
States congress or has a
national dues-paying membership of at
least five thousand
persons. (L) "Volunteer fire fighter's organization" means any
organization of volunteer fire fighters, as defined in section
146.01
of the Revised Code, that is organized and operated
exclusively
to provide financial support for a volunteer fire
department or a
volunteer fire company. (M) "Fraternal organization" means any society, order, or
association within this state, except a college or high school
fraternity, that is not organized for profit, that is a branch,
lodge, or chapter of a national or state organization, that
exists
exclusively for the common business or sodality of its
members,
and that has been in continuous existence in this state
for a
period of five years. (N) "Volunteer rescue service organization" means any
organization of volunteers organized to function as an emergency
medical service organization as defined in section 4765.01 of the
Revised Code. (O) "Service organization" means any organization, not
organized for profit, that is organized and operated exclusively
to provide, or to contribute to the support of organizations or
institutions organized and operated exclusively to provide,
medical and therapeutic services for persons who are crippled,
born with birth defects, or have any other mental or physical
defect or those organized and operated exclusively to protect, or
to contribute to the support of organizations or institutions
organized and operated exclusively to protect, animals from
inhumane treatment. (P) "Nonprofit medical organization" means any
organization
that has been incorporated as a nonprofit
corporation for at least
five years and that has continuously
operated and will be operated
exclusively to provide, or to
contribute to the support of
organizations or institutions
organized and operated exclusively
to provide, hospital, medical,
research, or therapeutic services
for the public. (Q) "Senior citizen's organization" means any private
organization, not organized for profit, that is organized and
operated exclusively to provide recreational or social services
for persons who are fifty-five years of age or older and that is
described and qualified under subsection 501(c)(3) of the
Internal
Revenue Code. (R) "Charitable bingo game" means any bingo game that is
conducted by a charitable organization that has obtained a bingo
license pursuant to section 2915.08 of the Revised Code and the
proceeds of which are used for a charitable purpose. (1) A game with all of the following characteristics: (a) The participants use bingo cards that are divided into
twenty-five spaces arranged in five horizontal and five vertical
rows of spaces, with each space, except the central space, being
designated by a combination of a letter and a number and with the
central space being designated as a free space. (b) The participants cover the spaces on the bingo cards
that correspond to combinations of letters and numbers that are
announced by a bingo game operator. (c) A bingo game operator announces combinations of
letters
and numbers that appear on objects that a bingo game
operator
selects by chance, either manually or mechanically, from
a
receptacle that contains seventy-five objects at the beginning
of
each game, each object marked by a different combination of a
letter and a number that corresponds to one of the seventy-five
possible combinations of a letter and a number that can appear on
the bingo cards. (d) The winner of the bingo game includes any participant
who properly announces during the interval between the
announcements of letters and numbers as described in division
(S)(1)(c) of this section, that a predetermined and preannounced
pattern of spaces has been covered on a bingo card being used by
the participant. (2) Any scheme or game other than a game as defined in
division (S)(1) of this section with the following
characteristics: (a) The participants use cards, sheets, or other devices
that are divided into spaces arranged in horizontal, vertical, or
diagonal rows of spaces, with each space, except free spaces,
being designated by a single letter, number, or symbol; by a
combination of letters, numbers, or symbols; by a combination of
a
letter and a number, a letter and a symbol, or a number and a
symbol; or by any combination of letters, numbers, and symbols,
with some or none of the spaces being designated as a free,
complimentary, or similar space. (b) The participants cover the spaces on the cards,
sheets,
or devices that correspond to letters, numbers, symbols,
or
combinations of such that are announced by a bingo game
operator
or otherwise transmitted to the participants. (c) A bingo game operator announces, or otherwise
transmits
to the participants, letters, numbers, symbols, or any
combination
of such as set forth in division (S)(2)(a) of this
section that
appear on objects that a bingo game operator selects
by chance
that correspond to one of the possible letters,
numbers, symbols,
or combinations of such that can appear on the
bingo cards,
sheets, or devices. (d) The winner of the bingo game is any participant who
properly announces that a predetermined and preannounced pattern
of spaces has been covered on a card, sheet, or device being used
by the participant. (T) "Conduct" means to back, promote, organize, manage,
carry on, or prepare for the operation of a scheme or game of
chance, but does not include any act performed by a bingo game
operator. (U) "Bingo game operator" means any person, except
security
personnel, who performs work or labor at the site of a
bingo game
including, but not limited to, collecting money from
participants,
handing out bingo cards or objects to cover spaces
on the bingo
cards, selecting from a receptacle the objects that
contain the
combination of letters and numbers that appear on the
bingo cards,
calling out the combinations of letters and numbers,
distributing
prizes to the winner of the bingo game, and
preparing, selling,
and serving food or beverages. (V) "Participant" means any person who plays bingo by
covering the spaces on a bingo card that correspond to
combinations of letters and numbers that are announced by a bingo
game operator. (W) "Bingo session" means a period, not to exceed five
continuous hours, during which a person conducts one or more
bingo
games. (X) "Gross receipts" means all money or assets, including
admission fees, that a person receives from a bingo session that
the person conducts without the deduction of any amounts for
prizes paid out during the session or for the expenses of
conducting the bingo session. "Gross receipts" does not include
any money directly taken in from the sale of food or beverages by
a charitable organization conducting a bingo session, or by a
bona
fide auxiliary unit or society of a charitable organization,
at a
bingo session conducted by the charitable organization,
provided
all of the following apply: (1) The auxiliary unit or society has been in existence as
a
bona fide auxiliary unit or society of the charitable
organization
for at least two years prior to the bingo session. (2) The person who purchases the food or beverage receives
nothing of value except the food or beverage and items
customarily
received with the purchase of that food or beverage. (3) The food and beverages are sold at customary and
reasonable prices. (4) No person preparing, selling, or serving the food or
beverages at the site of the bingo game receives directly or
indirectly any form of compensation for the preparation, sale, or
service of the food or beverages. (Y) "Security personnel" includes any person who either is
a
sheriff, deputy sheriff, marshal, deputy marshal, township
constable, or member of an organized police department of a
municipal corporation or has successfully completed a peace
officer's training course pursuant to sections 109.71 to 109.79
of
the Revised Code and who is hired to provide security for the
premises on which a bingo game is conducted. (Z) "To use gross receipts for a charitable purpose" means
that the proceeds of the bingo game are used by, or given,
donated, or otherwise transferred to, any organization that is
described in subsection 509(a)(1), 509(a)(2), or 509(a)(3) of the
Internal Revenue Code and is either a governmental unit or an
organization that is tax exempt under subsection 501(a) and
described in subsection 501(c)(3) of the Internal Revenue Code;
that the proceeds of the bingo game are used by, or given,
donated, or otherwise transferred to a veteran's organization, as
defined in division (K) of this section, that is a post, chapter,
or organization of war veterans, or an auxiliary unit or society
of, or a trust or foundation for, any such post, chapter, or
organization organized in the United States or any of its
possessions, at least seventy-five per cent of the members of
which are war veterans and substantially all of the other members
of which are individuals who are veterans (but not war veterans)
or are cadets, or are spouses, widows or widowers of war
veterans,
or such individuals, provided that no part of the net
earnings of
such post or organization inures to the benefit of
any private
shareholder or individual, and further provided that
the bingo
game proceeds are used by the post or organization for
the
charitable purposes set forth in division (B)(12)(11) of section
5739.02 of the Revised Code, are used for awarding scholarships
to
or for attendance at an institution mentioned in division
(B)(12)(11) of section 5739.02 of the Revised Code, are donated to a
governmental agency, or are used for nonprofit youth activities,
the purchase of United States or Ohio flags that are donated to
schools, youth groups, or other bona fide nonprofit
organizations,
promotion of patriotism, or disaster relief; that
the proceeds of
the bingo game are used by, or given, donated, or
otherwise
transferred to a fraternal organization that has been
in
continuous existence in this state for fifteen years for use
exclusively for religious, charitable, scientific, literary, or
educational purposes, or for the prevention of cruelty to
children
or animals and contributions for such use would qualify
as a
deductible charitable contribution under subsection 170 of
the
Internal Revenue Code; or that the proceeds of the bingo game
are
used by a volunteer fire fighter's organization and are used by
the organization for the purposes set forth in division (L) of
this section. (AA) "Internal Revenue Code" means the "Internal Revenue
Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as now or hereafter
amended. (BB) "Youth athletic organization" means any organization,
not organized for profit, that is organized and operated
exclusively to provide financial support to, or to operate,
athletic activities for persons who are twenty-one years of age
or
younger by means of sponsoring, organizing, operating, or
contributing to the support of an athletic team, club, league, or
association. (CC) "Youth athletic park organization" means any
organization, not organized for profit, that satisfies both of
the
following: (1) It owns, operates, and maintains playing fields that
satisfy both of the following: (a) The playing fields are used at least one hundred days
per year for athletic activities by one or more organizations,
not
organized for profit, each of which is organized and operated
exclusively to provide financial support to, or to operate,
athletic activities for persons who are eighteen years of age or
younger by means of sponsoring, organizing, operating, or
contributing to the support of an athletic team, club, league, or
association. (b) The playing fields are not used for any profit-making
activity at any time during the year. (2) It uses the proceeds of the bingo games it conducts
exclusively for the operation, maintenance, and improvement of
its
playing fields of the type described in division (CC)(1) of
this
section. (DD) "Amateur athletic organization" means any
organization,
not organized for profit, that is organized and operated
exclusively to provide financial support to, or to operate,
athletic
activities for persons who are training for amateur
athletic competition that
is sanctioned by a national governing
body as defined in the "Amateur
Sports Act of 1978," 90 Stat.
3045, 36 U.S.C.A. 373.
Sec. 4505.06. (A)(1) Application for a certificate of
title
shall be made in a form prescribed by the registrar of
motor
vehicles and shall be sworn to before a notary public or
other
officer empowered to administer oaths. The application
shall be
filed with the clerk of
any court of common pleas.
An
application for a
certificate of title may be filed
electronically by
any
electronic
means approved by the registrar
in
any county
with the clerk of the court of common pleas
of
that county. Any
payments required by
this chapter
shall be
considered as
accompanying any
electronically transmitted
application when
payment actually is
received by the clerk.
Payment of any fee or
taxes may be made
by
electronic transfer
of
funds. (2) The application for a certificate of title shall be
accompanied
by the fee prescribed in section 4505.09 of the
Revised Code. The fee shall be retained by the clerk who
issues
the
certificate of title and shall be distributed in
accordance
with that section.
If a clerk of a court of common
pleas, other
than the clerk of the court of
common pleas of an
applicant's
county of residence, issues a certificate of
title to
the
applicant, the clerk shall transmit data related to the
transaction to the automated title processing
system. (3) If a certificate of title previously has been issued for
a
motor vehicle in this state,
the application for a
certificate of title also shall be accompanied by that
certificate
of title duly assigned, unless otherwise provided in
this chapter.
If a certificate of title previously has not been
issued for the
motor vehicle in this state, the application,
unless otherwise
provided in this chapter, shall be accompanied
by a manufacturer's
or importer's certificate or by a certificate
of title
of another
state
from which the motor vehicle was
brought into this state.
If
the
application refers to a motor
vehicle last previously
registered
in another state, the
application also shall be
accompanied by
the physical inspection
certificate required by
section 4505.061
of the Revised Code.
If
the application is made
by two persons
regarding a motor
vehicle
in which they wish to
establish joint
ownership with
right of
survivorship, they may do
so as provided
in section
2131.12 of
the Revised Code.
If the applicant requests a
designation of
the
motor vehicle in beneficiary form so that upon
the death of
the
owner of the motor vehicle, ownership of the
motor vehicle
will
pass to a designated transfer-on-death
beneficiary or
beneficiaries, the applicant may do so as provided
in section
2131.13 of the Revised Code. A person who establishes
ownership
of a motor vehicle that is transferable on death in
accordance
with section 2131.13 of the Revised Code may terminate
that type
of ownership or change the designation of the
transfer-on-death
beneficiary or beneficiaries by applying for a
certificate of
title pursuant to this section. The clerk
shall
retain
the
evidence of title
presented by the applicant and
on
which the
certificate of title
is issued,
except that, if an
application
for a
certificate of
title is
filed electronically
by
an
electronic motor vehicle
dealer on behalf of the
purchaser
of a
motor vehicle, the clerk
shall retain the completed
electronic
record to which the dealer
converted the certificate
of title
application and other required
documents. The
electronic motor
vehicle dealer shall forward the
actual
application and all other
documents relating to the sale of
the
motor vehicle to any clerk
within thirty days after the
certificate of title is issued. The
registrar, after consultation
with the attorney general, shall
adopt rules that govern the
location at which, and the manner in
which, are stored the actual
application and all other documents
relating to the sale of a
motor vehicle when an electronic motor
vehicle dealer files the
application for a certificate of title
electronically on behalf of
the purchaser. The clerk shall use reasonable
diligence in
ascertaining
whether or not the facts in the
application
for a
certificate of
title are true by checking the application and
documents
accompanying it
or the
electronic record to which a
dealer
converted the
application and
accompanying documents
with
the
records of motor vehicles in the clerk's
office.
If the
clerk is
satisfied that the applicant is the
owner of the
motor
vehicle
and that the application is in the
proper form,
the
clerk,
within
five business days after the
application is
filed, shall
issue a
physical
certificate of title
over the
clerk's signature
and
sealed with the clerk's seal,
unless
the
applicant
specifically
requests the clerk not to issue a
physical
certificate of title
and instead to
issue an electronic
certificate of title. For
purposes of the transfer of a
certificate
of title, if the clerk
is satisfied that the secured
party has duly discharged
a lien
notation but has not canceled
the lien notation with
a
clerk, the
clerk may cancel the lien
notation on
the automated title
processing system and notify the
clerk of the
county of origin. (4) In the case of the sale of a motor vehicle to a general
buyer
or user
by a dealer, by a motor vehicle leasing dealer
selling
the
motor
vehicle to the lessee or, in a case in which
the
leasing
dealer subleased the
motor vehicle, the sublessee,
at
the end of
the lease agreement or sublease
agreement, or by a
manufactured
home
broker, the certificate of title shall be
obtained in the
name of the buyer by the dealer, leasing
dealer,
or
manufactured home
broker, as the case may be, upon
application
signed by
the buyer. The certificate of title shall
be issued, or
the process
of entering the certificate of title
application
information into the automated title processing
system if a
physical
certificate of title is not to be issued
shall
be
completed, within
five business days after the
application for
title is filed with
the clerk. If the buyer of
the motor vehicle
previously leased the motor
vehicle and
is
buying the motor
vehicle at the end of the lease pursuant to that
lease,
the
certificate of title shall be obtained in the name of
the buyer by
the
motor vehicle leasing dealer who previously
leased the motor
vehicle to the
buyer or by the motor vehicle
leasing dealer who
subleased the motor vehicle
to the buyer
under a sublease
agreement. In all other cases, except as provided in
section 4505.032
and division (D)(2)
of section 4505.11 of the Revised Code, such
certificates shall
be obtained by the buyer.
(5)(a)(i) If the certificate of title is being obtained in
the name of the buyer by a motor vehicle dealer or motor vehicle
leasing dealer and there is a security interest to be noted on the
certificate of title, the dealer or leasing dealer shall submit
the application for the certificate of title and payment of the
applicable tax to a clerk within seven business days after the
later of the delivery of the motor vehicle to the
buyer or the
date the dealer or leasing dealer obtains the
manufacturer's or
importer's certificate, or certificate of title
issued in the name
of the dealer or leasing dealer, for the motor vehicle.
Submission
of the application for the
certificate of title and payment of the
applicable tax within the
required seven business days may be
indicated by postmark or
receipt by a clerk within that period. (ii) Upon receipt of the certificate of title with the
security interest noted on its face, the dealer or leasing dealer
shall forward the certificate of title to the secured party at the
location noted in the financing documents or otherwise specified
by the secured party. (iii) A motor vehicle dealer or motor vehicle leasing
dealer
is liable to a secured party for a late fee of ten dollars
per day
for each certificate of title application and payment of
the
applicable tax that is submitted to a clerk more than seven
business days
but less than twenty-one days after the later of the
delivery of the motor vehicle to the buyer or the date the
dealer
or leasing dealer obtains the manufacturer's or importer's
certificate, or certificate of title issued in the name of the
dealer or leasing dealer, for the motor vehicle and,
from then on,
twenty-five dollars per day until the application
and applicable
tax are submitted to a clerk. (b) In all cases of
transfer of
a motor vehicle, the
application for certificate of
title shall be
filed within
thirty days after the assignment or
delivery of the
motor
vehicle. If an application for a
certificate of title is
not
filed within
the period
specified in division (A)(5)(b) of
this
section, the clerk
shall collect a fee of
five dollars for
the
issuance of the
certificate, except that no
such fee shall
be
required from a
motor vehicle salvage dealer,
as defined in
division (A) of
section 4738.01 of the Revised
Code, who
immediately surrenders
the certificate of title for
cancellation. The fee shall be in
addition to all other fees
established by this chapter, and shall
be retained by the clerk.
The
registrar shall provide, on the
certificate of title form
prescribed by section 4505.07 of the
Revised Code, language
necessary to give evidence of the date on
which the assignment or
delivery of the motor vehicle was made. (6) As used in
division
(A) of this section,
"lease
agreement,"
"lessee," and
"sublease
agreement" have the same
meanings as in section 4505.04
of the Revised Code. (B) The clerk, except as provided in this section, shall
refuse to accept for filing any application for a certificate of
title and shall refuse to issue a certificate of title unless the
dealer or manufactured home broker or the applicant, in cases in
which the
certificate shall be obtained by the buyer, submits
with
the
application payment of the tax levied by or pursuant to
Chapters
5739. and 5741. of the Revised Code
based on the
purchaser's county of residence. Upon payment of the tax in
accordance with division (E) of this section, the clerk shall
issue a receipt prescribed by the registrar and agreed upon by the
tax
commissioner showing payment of the tax or a receipt issued
by
the
commissioner showing the payment of the tax. When
submitting
payment of the
tax to the clerk, a dealer shall
retain any
discount to which the dealer is
entitled under
section 5739.12 of
the Revised Code. For receiving and disbursing such taxes paid to the clerk
by
a resident of the clerk's county,
the clerk may retain a poundage
fee of one and one one-hundredth
per cent,
and the clerk
shall
pay the poundage fee
into the certificate of title
administration fund created by
section 325.33 of the
Revised
Code.
The clerk shall not retain a
poundage fee from payments of
taxes by persons who do not reside
in the clerk's county. A clerk, however, may retain from the taxes paid to the
clerk
an amount equal to the poundage fees associated with
certificates
of title issued by other clerks of courts of common
pleas to
applicants who reside in the first clerk's county. The
registrar,
in consultation with the tax commissioner and the
clerks of the
courts of common pleas, shall develop a report from
the automated
title processing system that informs each clerk of
the amount of
the poundage fees that the clerk is permitted to
retain from those
taxes because of certificates of title issued by
the clerks of
other counties to applicants who reside in the first
clerk's
county. In the case of casual sales of motor vehicles, as defined
in
section 4517.01 of the Revised Code, the price
for the purpose of
determining the tax shall be the purchase
price on the assigned
certificate of title executed
by the seller and filed with the
clerk by the
buyer on a form to be prescribed by the registrar,
which shall
be prima-facie evidence of the amount for the
determination of the tax. (C)(1) If the transferor indicates on the certificate of
title
that the odometer reflects mileage in excess of the
designed
mechanical limit of the odometer, the clerk shall enter
the
phrase
"exceeds mechanical limits" following the mileage
designation. If
the transferor indicates on the certificate of
title that the
odometer reading is not the actual mileage, the
clerk shall enter
the phrase
"nonactual: warning -
odometer
discrepancy" following
the mileage designation. The clerk shall
use
reasonable care in
transferring the information supplied
by
the transferor, but is
not liable for any errors or omissions
of
the clerk or those of
the clerk's deputies in the
performance of
the clerk's duties
created by this chapter. The registrar shall prescribe an affidavit in which the
transferor shall swear to the true selling price and, except as
provided in this division, the true odometer reading of the motor
vehicle. The registrar may prescribe an affidavit in which the
seller and buyer provide information pertaining to the odometer
reading of the motor vehicle in addition to that required by this
section, as such information may be required by the United States
secretary of transportation by rule prescribed under authority of
subchapter IV of the
"Motor Vehicle Information and Cost Savings
Act," 86 Stat. 961 (1972), 15 U.S.C. 1981. (2) Division (C)(1) of this
section does not require the
giving of information
concerning the odometer and odometer
reading
of a motor vehicle
when ownership of a motor vehicle is
being
transferred as a
result of a bequest, under the laws of
intestate
succession, to a
survivor pursuant to
section
2106.18,
2131.12, or 4505.10
of the Revised
Code,
to a
transfer-on-death beneficiary or beneficiaries
pursuant
to section
2131.13 of the Reviseed Code, or in
connection
with the
creation
of a
security interest. (D) When the transfer to the applicant was made in some
other state or in interstate commerce, the clerk, except as
provided in this section, shall refuse to issue any certificate
of
title unless the tax imposed by or pursuant to Chapter
5741.
of
the Revised Code
based on the purchaser's county of residence
has
been paid as evidenced by a receipt issued by the tax
commissioner, or
unless the applicant submits with the
application
payment of
the tax. Upon payment of the tax in
accordance with
division
(E) of this section, the clerk shall
issue a
receipt
prescribed by the
registrar and agreed upon by
the tax
commissioner, showing
payment of the tax.
For
receiving and
disbursing such taxes paid
to the clerk
by a resident of the clerk's county, the clerk
may retain a
poundage
fee of one
and one one-hundredth per cent.
The
clerk
shall not retain a poundage fee from payments of taxes by
persons
who do not reside in the clerk's county. A clerk, however, may retain from the taxes paid to the
clerk
an amount equal to the poundage fees associated with
certificates
of title issued by other clerks of courts of common
pleas to
applicants who reside in the first clerk's county. The
registrar,
in consultation with the tax commissioner and the
clerks of the
courts of common pleas, shall develop a report from
the automated
title processing system that informs each clerk of
the amount of
the poundage fees that the clerk is permitted to
retain from those
taxes because of certificates of title issued by
the clerks of
other counties to applicants who reside in the first
clerk's
county. When the vendor is
not regularly
engaged in the
business of
selling
motor
vehicles, the vendor
shall not be required to
purchase a
vendor's
license or make
reports concerning
those
sales. (E) The clerk shall accept any payment of a tax in cash, or
by
cashier's check, certified
check, draft,
money order, or
teller check issued by any
insured financial institution payable
to the clerk and submitted with an
application
for a certificate
of title under division (B)
or (D) of this section. The clerk
also may
accept payment of the tax by corporate, business, or
personal check, credit
card, electronic transfer or wire
transfer,
debit card, or any other accepted
form of payment made
payable to
the clerk. The clerk may require bonds,
guarantees,
or letters of
credit to ensure the collection of corporate,
business, or
personal
checks. Any service fee charged by a
third party to a
clerk for the use of
any form of payment may be
paid by the clerk
from the certificate of title
administration
fund created in
section 325.33 of the Revised Code, or may be
assessed by the
clerk upon the applicant as an additional fee.
Upon
collection,
the additional fees shall be paid by the clerk
into that
certificate of title administration fund. The clerk shall make a good faith effort to collect any
payment of taxes
due but not made because the payment was
returned
or dishonored, but the clerk
is not personally liable
for the
payment of uncollected taxes or uncollected
fees. The
clerk
shall
notify the tax commissioner of any such payment of
taxes that is
due but
not made and shall furnish
the
information to the
commissioner
that the
commissioner
requires.
The clerk shall deduct
the amount of taxes due but not
paid from
the clerk's periodic
remittance of tax payments, in
accordance
with
procedures agreed
upon by the tax commissioner.
The
commissioner may collect
taxes
due by assessment in the
manner
provided in section 5739.13 of the
Revised Code. Any person who presents payment that is returned or
dishonored for any
reason is liable to the clerk for payment of a
penalty over and above the
amount of the taxes due. The clerk
shall determine the amount of the penalty,
and the penalty
shall
be no
greater than that amount necessary to compensate the
clerk
for
banking charges, legal fees, or other expenses
incurred by
the
clerk in
collecting the returned or dishonored
payment. The
remedies and procedures
provided in this section
are in addition
to any other available civil or
criminal
remedies. Subsequently
collected penalties, poundage
fees, and
title
fees, less
any
title
fee
due the state, from returned or
dishonored payments
collected
by
the clerk shall be paid into the
certificate of
title
administration fund.
Subsequently
collected taxes, less
poundage
fees,
shall be sent by the clerk
to the
treasurer of
state
at the next
scheduled periodic
remittance of tax payments,
with
information as the
commissioner may require. The clerk
may
abate
all or any part of
any penalty assessed under this
division. (F) In the following cases, the clerk shall accept for
filing
an application and shall issue a certificate of title
without requiring payment or evidence of payment of the tax: (1) When the purchaser is this state or any of its
political
subdivisions, a church, or an organization whose
purchases are
exempted by section 5739.02 of the Revised Code; (2) When the transaction in this state is not a retail
sale
as defined by section 5739.01 of the Revised Code; (3) When the purchase is outside this state or in
interstate
commerce and the purpose of the purchaser is not to
use, store, or
consume within the meaning of section 5741.01 of
the Revised Code; (4) When the purchaser is the federal government; (5) When the motor vehicle was purchased outside this
state
for use outside this state; (6) When the motor vehicle is purchased by a nonresident
of
this state for immediate removal from this state, and will be
permanently titled and registered in another state, as provided
by
division (B)(23)(22) of section 5739.02 of the Revised Code,
and
upon
presentation of a copy of the affidavit provided by
that
section,
and a copy of the exemption certificate provided
by
section
5739.03 of the Revised Code. The clerk shall forward all payments of taxes, less
poundage
fees, to the treasurer of state in a manner to be
prescribed
by
the
tax commissioner and shall furnish
information
to
the
commissioner as the commissioner requires. (G) An application, as prescribed by the registrar
and
agreed to by the tax commissioner, shall be filled out and sworn
to by the buyer of a motor vehicle in a casual sale. The
application shall contain the following notice in bold lettering:
"WARNING TO TRANSFEROR AND TRANSFEREE (SELLER AND BUYER): You
are
required by law to state the true selling price. A false
statement is in
violation of section 2921.13 of
the Revised Code
and is punishable by six months' imprisonment or
a fine of up to
one thousand dollars, or both. All transfers are
audited by the
department of taxation. The seller and buyer must
provide any
information requested by the department of taxation. The buyer
may be assessed any additional tax found to be due." (H) For sales of manufactured homes or mobile homes
occurring
on or after January 1, 2000, the clerk shall accept for
filing,
pursuant to
Chapter 5739. of the Revised Code, an
application for a
certificate of title for a manufactured home or
mobile home
without requiring payment of any tax pursuant to
section
5739.02, 5741.021, 5741.022, or 5741.023 of the
Revised
Code, or a receipt issued by
the tax commissioner showing payment
of the tax. For sales of
manufactured homes or mobile homes
occurring on or after January 1,
2000, the applicant shall pay to
the clerk an additional fee of five dollars
for each certificate
of title issued by the clerk for a
manufactured or mobile home
pursuant to division (H) of section 4505.11 of the Revised Code
and for each certificate of title issued upon transfer of
ownership of
the home. The clerk shall credit the fee to the
county
certificate of title administration fund, and the fee shall
be used to
pay
the expenses of archiving
those certificates
pursuant to
division
(A) of section 4505.08
and division (H)(3)
of section
4505.11 of
the Revised Code. The tax commissioner
shall
administer any tax
on a manufactured or mobile home
pursuant to
Chapters 5739. and
5741. of the
Revised Code.
(I) Every clerk shall have the capability to transact by
electronic means all procedures and transactions relating to the
issuance of
motor vehicle certificates of title that are
described
in the Revised Code as being accomplished by
electronic means.
Sec. 4981.20. (A) Any real or personal property, or both,
of the Ohio rail development commission that is acquired,
constructed,
reconstructed,
enlarged, improved, furnished, or
equipped, or any combination
thereof, and leased or subleased
under authority of sections
4981.11 to 4981.26 of the Revised Code
shall be subject to ad
valorem, sales, use, and franchise taxes
and to zoning, planning,
and building regulations and fees, to the
same extent and in the
same manner as if the lessee-user or
sublessee-user thereof,
rather than the issuer, had acquired,
constructed, reconstructed,
enlarged, improved, furnished, or
equipped, or any combination
thereof, such real or personal
property, and title thereto was in
the name of such lessee-user or
sublessee-user. The transfer of tangible personal property by lease or
sublease under authority of sections 4981.11 to 4981.26 of the
Revised Code is not a sale as used in Chapter 5739. of the
Revised
Code. The exemptions provided in divisions (B)(1) and
(14)(12) of
section 5739.02 of the Revised Code shall not be
applicable to
purchases for a project under sections 4981.11 to
4981.26 of the
Revised Code. The issuer shall be exempt from all taxes on its real or
personal property, or both, which has been acquired, constructed,
reconstructed, enlarged, improved, furnished, or equipped, or any
combination thereof, under sections 4981.11 to 4981.26 of the
Revised Code so long as such property is used by the issuer for
purposes
which
that would otherwise exempt such property; has
ceased
to be used by a former lessee-user or sublessee-user and is
not
occupied or used; or has been acquired by the issuer but
development has not yet commenced. The exemption shall be
effective as of the date the exempt use begins. All taxes on the
exempt real or personal property for the year should be prorated
and the taxes for the exempt portion of the year shall be
remitted
by the county auditor. (B) Bonds issued under sections 4981.11 to 4981.26 of the
Revised Code, the transfer thereof, and the interest and other
income from the bonds, including any profit made on the sale
thereof, are free from taxation within the state.
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 not be
subject to 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 not be
subject to 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, other than mobile
telecommunications service after July 31, 2002, is or is to be
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, or by
which local
telecommunications service is obtained
from a
coin-operated
telephone and paid for by using coin; (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.
(p) After July 31, 2002, mobile telecommunications service is
or is to be provided
in this state when that service is sitused to
this state pursuant to the "Mobile
Telecommunications Sourcing
Act,"
P. Pub. L. No. 106-252, 114
Stat. 626
to 632 (2000), 4
U.S.C.A. 116 to 126, as amended. (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
transfers of interest in leased property where the original lessee
and the terms of the original lease agreement remain unchanged, or
professional, insurance, or personal service
transactions
that
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; (9) The transfer of copyrighted motion picture films used
solely for advertising purposes, except that the transfer of such
films for exhibition purposes is not a sale. Other than as provided in this section, "sale" and "selling"
do not include transfers of interest in leased property where the
original lessee and the terms of the original lease agreement
remain unchanged; the transportation of persons or property,
unless the transportation is by a private investigation and
security service; or professional, insurance, or personal service
transactions that involve the transfer of tangible personal
property as an inconsequential element, for which no separate
charges are made. (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.
(6) A person who engages in highway transportation for hire
is the consumer of all packaging materials purchased by that
person used in performing the service, except for packaging
materials sold by such person in a transaction separate from the
service. (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
that 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)(36)(35) 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
itself 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.
Except as provided in division (H)(4) of this section, 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" also does not
include delivery charges that are separately stated on the initial
invoice or initial billing rendered by the vendor. 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 and the
effects of any rounding pursuant to section 5703.055 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.
As used in division (H)(1) of this section, "delivery
charges" means charges by the vendor for preparation and delivery
to a location designated by the consumer of tangible personal
property or a service, including transportation, shipping,
postage, handling, crating, and packing. (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.
(4) In the case of the lease of any motor vehicle designed
by the manufacturer to carry a load of not more than one ton,
watercraft,
outboard motor, or aircraft, or the
lease of any
tangible personal property, other than motor vehicles
designed by
the manufacturer to carry a load of more than one ton, to be used
by the lessee
primarily for business
purposes, the sales tax shall
be
collected
by
the vendor at the
time the lease is consummated
and
shall be
calculated by the
vendor on the basis of the total
amount
to be
paid by the lessee
under the lease agreement. If the
total amount
of the
consideration for the lease includes amounts
that are not
calculated at the time the lease is executed, the tax
shall be
calculated and collected by the vendor at the time such
amounts
are billed to the lessee. In the case of an open-end
lease, the
sales tax shall be calculated by the vendor on the
basis of the
total amount to be paid during the initial fixed term
of the
lease, and then for each subsequent renewal period as it
comes
due. As used in
divisions (H)(3)
and (4) of this section,
"motor
vehicle" has the same meaning as in section 4501.01 of the
Revised
Code, and "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
that was obtained by the person making the
sale, through purchase or otherwise, for the person's own use and
was previously subject to any state's taxing
jurisdiction on its
sale or use, and includes such items acquired
for the seller's use
that 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
the 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
that 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
that 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
that includes
territory
in
more than one county must include all the area of
the most
populous county
that 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
that 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
that 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; (7) After July 31, 2002, mobile telecommunications service. (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 also means 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.
(VV) "Lease" means any transfer for a consideration of the
possession of and right to use, but not title to, tangible
personal property for a fixed period of time greater than
thirty
days or for an open-ended period of time with a
minimum fixed
period of more than thirty days. (WW) "Mobile telecommunications service" has the same
meaning as in the "Mobile Telecommunications Sourcing Act," Pub.
L.
No. 106-252, 114 Stat. 631 (2000), 4 U.S.C.A. 124(7), as
amended. (XX) "Certified service provider" has the same meaning as in
section 5740.01 of the Revised Code.
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
those rentals, shall be measured by the
installments
of those rentals. 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 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)(12) 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
of this
state, 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
the
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)(11) 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)(13) 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)(14) Sales to persons
primarily 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"
but does not include motor vehicles or bulk tanks,
trailers, or similar devices attached to motor vehicles.
"Packaging" means placing
therein
in a package. Division (B)(14) of this section
does not apply to persons engaged in highway transportation for
hire.
(16)(15) Sales of food to persons using food stamp
benefits
to
purchase the food. As used in division (B)(16)(15) 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)(16) 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)(17) 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)(18)(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; 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.
(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)(19) 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)(20) 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)(21) 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)(22) 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)(23) 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)(24)(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)(25) Fees charged for inspection or reinspection of
motor
vehicles under section 3704.14 of the Revised Code;
(27)(26) 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)(27) Sales of animals by nonprofit animal adoption
services
or county humane societies;
(29)(28) 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)(29) Sales and installation of agricultural land tile,
as
defined in division (B)(5)(a) of section 5739.01 of the Revised
Code;
(31)(30) 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)(31) 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
belonging to others by
a
person engaged in highway transportation
for hire, except for packages and packaging used for the
transportation of tangible personal property;
(33)(32) Sales to the state headquarters of any veterans'
organization in
this state 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)(33) 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)(33) 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)(34) 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)(35)(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)(35)(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)(35) 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)(36) 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)(37) 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)(38) 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)(39) 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)(40) 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)(41) 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.
(C) 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. (D) As used in this section, except in division (B)(16)(15)
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
liquors, wine, mixed beverages, or
beer;
soft drinks; sodas and
beverages that are ordinarily
dispensed at
or in connection with bars and soda
fountains, 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)(E) 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.
(A) 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: (1) 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 the consumer's agent to the vendor or
the vendor's
agent, the vendor or
the vendor's agent shall collect the tax with
and at the
same time as the
price; (2) If the price is otherwise paid or to be paid, the
vendor
or 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. (B)(1) 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)(10)
or (28)(27) of section 5739.02 of the Revised Code, the
consumer must
provide 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.
The certificate shall
be
provided either in a hard copy form or electronic form, as
prescribed by the tax commissioner. If the transaction is claimed
to
be exempt under division (B)(13)(12) of section 5739.02 of the
Revised
Code, the exemption certificate shall be
provided
by both
the
contractor and the contractee. Such
contractee shall
be
deemed
to be the consumer of all items
purchased under such 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 regulation prescribes.
(2) The
vendor shall maintain records, including exemption
certificates, of all sales on which a consumer has claimed an
exemption, and provide them to the tax commissioner
on request. (3) The tax commissioner may establish an identification
system whereby the commissioner issues an identification number to
a consumer that is exempt from payment of the tax. The consumer
must present the number to the vendor, if any sale is claimed to be
exempt as provided in this section. (4) If
no certificate is
provided 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.
Failure
to have so
provided, 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
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. (5) Certificates need not be obtained nor
provided
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
provide 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
provides 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
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
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, the vendor shall
also refund
the
full amount of the tax paid.
Sec. 5739.11. As used in this section, "food service
operator" means a vendor who conducts a food service operation
under Chapter 3717. of the Revised Code. Each vendor shall keep complete and accurate records of
sales, together with a record of the tax collected on the sales,
which shall be the amount due under sections 5739.01 to 5739.31
of
the Revised Code, and shall keep all invoices, bills of
lading,
and other such pertinent documents. Alternatively, any
food
service operator who has not been convicted under section
5739.99
of the Revised Code, with respect to the vendor's food
service
operation, may keep a sample of primary sales records.
Such sample
shall consist of all sales invoices, guest checks,
cash register
tapes, and other such documents for each of
fourteen days in every
calendar quarter. The specific days to be
included in the sample
shall be determined by the tax
commissioner and entered in the
commissioner's journal within ten
days after the close of every
calendar quarter. The tax
commissioner shall notify each such
operator registered pursuant
to section 5739.17 of the Revised
Code who requests such
notification of the days to be included in
each sample by the
last day of the month following the close of
each calendar
quarter. The notice also shall contain a statement
that
destruction of primary records for time periods other than
the
specified sample period is optional, and that some operators
may
wish to keep all such records for four full years so as to be
able to clearly demonstrate that they have fully complied with
this chapter and Chapter 5741. of the Revised Code. The tax
commissioner shall further make such determination known through
a
general news release. Each vendor shall keep exemption certificates required to
be
obtained under section 5739.03 of the Revised Code. If the
vendor
makes sales not subject to the tax and not required to be
evidenced by an exemption certificate, the vendor's records shall
show the identity of the purchaser, if the sale was exempted by
reason of such identity, or the nature of the transaction, if
exempted for any other reason. Vendors are not required to
differentiate in record-keeping between sales that are exempt
from
taxation under division (B)(2) of section 5739.02 of the
Revised
Code and those that are exempt under division (B)(16)(15) of
that
section. Such records and other documents required to be
kept by
this section shall be open during business hours to the
inspection
of the tax commissioner, and shall be preserved for a
period of
four years, unless the commissioner, in writing,
consents to their
destruction within that period, or by order
requires that they be
kept longer.
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)(1) 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)(10)
or (28)(27) of section 5739.02 of the Revised
Code, the consumer shall
provide 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.
The
certificate shall be provided either in a hard copy form or
electronic form, as prescribed by the tax commissioner. If the
transaction is
claimed to be exempt under
division (B)(13)(12) of
section 5739.02 of
the Revised Code,
the exemption certificate
shall be
provided by
both the contractor and
contractee. Such
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.
The seller shall maintain records, including
exemption certificates, of all sales on which a consumer has
claimed an exemption, and provide them to the tax commissioner on
request. (2) If no
certificate is
provided 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
provided
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 2. That existing sections 165.09, 902.11, 2915.01,
4505.06, 4981.20, 5739.01, 5739.02, 5739.03, 5739.11, and 5741.02
of the Revised Code are hereby repealed.
Section 3. Section 5739.01 of the Revised Code was
amended
by Am. Sub. H.B. 524, Am. Sub. S.B. 143, and Sub. S.B.
200, all
of
the 124th General Assembly. Comparison of these
amendments
in
pursuance of section 1.52 of the Revised Code
discloses that
while
certain of the amendments of these acts are
reconcilable,
certain
other of the amendments are substantively
irreconcilable.
Am. Sub.
H.B. 524 was passed on March 21, 2002;
Am. Sub. S.B. 143 was
passed on January 30, 2002; Sub. S.B. 200
was passed on March 13,
2002. Section
5739.01 of the Revised Code
is therefore presented
in this act
as it results from Am. Sub.
H.B. 524 and Sub. S.B. 200
and such of the amendments
of Am. Sub.
S.B. 143 as are not in
conflict with the amendments
of Sub. S.B.
200. The General
Assembly, applying the
principle stated in
division (B) of section
1.52 of the Revised
Code that amendments
are to be harmonized if
reasonably capable of
simultaneous
operation, finds that the
composite is the resulting
version of
the section in effect prior
to the effective date of
the section
as presented in this act.
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