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(126th General Assembly)
(Amended Substitute Senate Bill Number 269)
To amend section 5741.02 of the Revised Code to exempt from the use tax items held by a person, but not for that person's own use, and donated to a charitable organization, or to the state or its political subdivisions for exclusively public purposes.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That section 5741.02 of the Revised Code be amended to read as follows:
Sec. 5741.02. (A)(1) 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.
tax shall be collected as provided in section
5739.025 of the Revised Code, provided that on and after July 1, 2003, and on or before June 30, 2005, the rate of the tax shall be six per cent. On and after July 1, 2005, the rate of the tax shall be five and one-half per cent.
(2) In the case of the lease or rental, with a fixed term of more than thirty days or an indefinite term with a minimum period of more than thirty days, of any motor vehicles designed by the manufacturer to carry a load of not more than one ton, watercraft, outboard motor, or aircraft, or 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 or renter primarily for business purposes, the tax shall be collected by the seller at the time the lease or rental is consummated and shall be calculated by the seller on the basis of the total amount to be paid by the lessee or renter under the lease or rental agreement. If the total amount of the consideration for the lease or rental includes amounts that are not calculated at the time the lease or rental is executed, the tax shall be calculated and collected by the seller at the time such amounts are billed to the lessee or renter. In the case of an open-end lease or rental, the tax shall be calculated by the seller on the basis of the total amount to be paid during the initial fixed term of the lease or rental, and for each subsequent renewal period as it comes due. As used in this division, "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.
(3) Except as provided in division (A)(2) of this section, in the case of a transaction, the price of which consists in whole or part of the lease or rental of tangible personal property, the tax shall be measured by the installments of those leases or rentals.
(B) Each consumer, storing, using, or otherwise consuming
this state tangible personal property or realizing in this
the benefit of any service provided, shall be liable for the
and such liability shall not be extinguished until the tax
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
Code or prepaid by the seller in accordance with section
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
or services purchased under the following described
(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
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
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
come to rest in this state, provided that fuel to
be used or
transported in carrying on interstate commerce that is
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
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
to section 5741.021, 5741.022, or 5741.023 of the
exceeds the amount paid to another jurisdiction, the
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
As used in this subdivision, "taxes paid to another
jurisdiction" means the total amount of retail sales or use tax
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
as defined by section 5739.0210 of the Revised Code,
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.
(8) Computer equipment and related software leased from a lessor located outside this state and initially received in this state on behalf of the consumer by a third party that will retain possession of such property for not more than ninety days and that will, within that ninety-day period, deliver such property to the consumer at a location outside this state. Division (C)(8) of this section does not provide exemption from taxation for any otherwise taxable charges associated with such property while it is in this state or for any subsequent storage, use, or consumption of such property in this state by or on behalf of the consumer.
(9) Cigarettes that have a wholesale value of three hundred dollars or less used, stored, or consumed, but not for resale, in any month.
(10) Tangible personal property held for sale by a person but not for that person's own use and donated by that person, without charge or other compensation, to either of the following:
(a) A nonprofit organization 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; or
(b) This state or any political subdivision of this state, but only if donated for exclusively public purposes.
For the purposes of division (C)(10) of this section, "charitable purposes" has the same meaning as in division (B)(12) of section 5739.02 of the Revised Code.
(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) 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
used, or otherwise consumed in a taxable manner.
(E)(1)(a) If any transaction is claimed to be exempt under
section 5739.01 of the Revised Code or under
of the Revised Code, with the exception of
divisions (B)(1) to (11)
or (28) of section 5739.02 of the Revised
Code, the consumer shall
provide to the seller, and the
shall obtain from the consumer,
reason that the
not subject to the tax.
certificate shall be in such form, and shall be provided either in a hard copy form or
electronic form, as the tax commissioner prescribes.
(b) A seller that obtains a fully completed exemption certificate from a consumer is relieved of liability for collecting and remitting tax on any sale covered by that certificate. If it is determined the exemption was improperly claimed, the consumer shall be liable for any tax due on that sale under this chapter. Relief under this division from liability does not apply to any of the following:
(i) A seller that fraudulently fails to collect tax;
(ii) A seller that solicits consumers to participate in the unlawful claim of an exemption;
(iii) A seller that accepts an exemption certificate from a consumer that claims an exemption based on who purchases or who sells property or a service, when the subject of the transaction sought to be covered by the exemption certificate is actually received by the consumer at a location operated by the seller in this state, and this state has posted to its web site an exemption certificate form that clearly and affirmatively indicates that the claimed exemption is not available in this state;
(iv) A seller that accepts an exemption certificate from a consumer who claims a multiple points of use exemption under division (B) of section 5739.033 of the Revised Code, if the item purchased is tangible personal property, other than prewritten computer software.
(2) 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.
(3) If no
provided or obtained
within ninety days after the date on which
transaction is consummated,
it shall be
presumed that the tax
applies. Failure to have so
or obtained a
certificate shall not preclude a seller, within one hundred twenty days
after the tax commissioner gives written notice of intent to levy an
from either establishing that the transaction is not subject to the tax, or obtaining, in good faith, a fully completed exemption certificate.
(4) If a transaction is claimed to be exempt under division (B)(13) of section 5739.02 of the Revised Code, the contractor shall obtain certification of the claimed exemption from the contractee. This certification shall be in addition to an exemption certificate provided by the contractor to the seller. A contractee that provides a certification under this division shall be deemed to be the consumer of all items purchased by the contractor under the claim of exemption, if it is subsequently determined that the exemption is not properly claimed. The certification shall be in such form as the tax commissioner prescribes.
(F) A seller who files a petition for reassessment
assessment of tax on transactions for which the
seller obtained no valid
exemption certificates, and for which the
to establish that
the transactions were not subject
to the tax
one-hundred-twenty-day period allowed under
(E) of this
section, may present to the tax commissioner
to prove that the transactions were exempt.
such evidence within ninety days of the
receipt by the
the notice of assessment, except that,
reasonable cause, the tax commissioner
may extend the
submitting such evidence thirty days.
(G) For the purpose of the proper administration of
5741.01 to 5741.22 of the Revised Code, and to prevent
of the tax hereby levied, it shall be presumed that
storage, or other consumption of tangible personal
this state is subject to the tax until the contrary
(H) The tax collected by the seller 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 use tax pursuant to section 5741.021 or 5741.023 of the Revised Code and of transit authorities levying an additional use tax pursuant to section 5741.022 of the Revised Code. Except for the discount authorized under section 5741.12 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 of such tax.
SECTION 2. That existing section 5741.02 of the Revised Code is hereby repealed.