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Sub. H. B. No. 160 As Reported by the Senate Judiciary--Civil Justice CommitteeAs Reported by the Senate Judiciary--Civil Justice Committee
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Latta, Seitz, Book, Adams, Batchelder, Blessing, Brown, Budish, Chandler, Coley, Combs, Daniels, DeBose, Domenick, Fende, Gibbs, Harwood, Hite, Huffman, Hughes, Letson, Luckie, Otterman, Raussen, Schindel, Schneider, Stebelton, Wagoner, Zehringer
Senators Goodman, Seitz, Kearney
A BILL
To amend sections 319.20,
1705.02, 5713.08, 5715.27,
and 5815.36 and to enact section 5701.14 of the
Revised Code to
clarify and modify the law
relating to disclaimers
under the Ohio Trust
Code, to provide
that a limited liability company
may be a nonprofit entity, and to
make changes
regarding certain tax exemptions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 319.20,
1705.02, 5713.08, 5715.27,
and 5815.36 be
amended and section 5701.14 of the Revised Code be
enacted to read as follows:
Sec. 319.20. After complying with sections 319.202,
315.251,
and 319.203 of the
Revised Code, and on application and
presentation of title, with
the affidavits required by law, or the
proper order of a court,
bearing the last known address of the
grantee, or of any one of
the grantees named in the title, and a
reference to the volume
and page of the recording of the next
preceding recorded
instrument by or through which the grantor
claims title, the
county auditor shall transfer any land or town
lot or part
thereof, minerals therein, or mineral rights thereto,
charged
with taxes on the tax list, from the name in which it
stands into
the name of the owner, when rendered necessary by a
conveyance,
partition, devise, descent, or otherwise. If by reason
of the
conveyance or otherwise, a part only of a tract or lot,
minerals
therein, or mineral rights thereto, as charged in the tax
list,
is to be transferred, the auditor shall determine the tax
value
of the part of a tract or lot of real estate, minerals
therein,
or mineral rights thereto, so transferred, and the value
of the
remaining part compared with the value of the whole.
Whenever a part only of a tract or lot of real estate has
been transferred by the auditor and the tract or lot bears
unpaid
taxes, penalties, interest, or special assessments, the
unpaid
taxes, penalties, interest, or special assessments shall
immediately be apportioned, upon demand or request by the
transferee or remaining owner, in the following manner:
(A) The auditor shall allocate to the part so transferred,
and to the remaining part, amounts of any current or delinquent
taxes, interest, or penalties that have accrued against the
parcel
as a whole, proportionate to their respective values.
(B) The lien of taxes, penalties, interest, and special
assessments, as levied against the original tract, shall extend
to
the part so transferred and the part remaining only to the
extent
of the amounts so allocated to the respective parts.
This section does not change the total amount of taxes,
special assessments, or other charges as originally levied, or
the
total amount of the balance due. The auditor shall certify
such
apportionments to the county treasurer.
Whenever the state acquires an entire parcel or a part only
of a parcel of real property in fee simple, the county auditor,
upon application of the grantor or property owner or the state,
which application shall contain a description of the property as
it appears on the tax list and the date of transfer of ownership,
shall prepare an estimate of the taxes that are a lien on
the
property, but have not been determined, assessed, and levied for
the year in which the property was acquired. The county auditor
shall thereupon apportion the estimated taxes proportionately
between the grantor and the state for the period of the lien year
that each had or shall have had ownership or possession of the
property, whichever is earlier. The county treasurer shall accept
payment from the state for estimated taxes at the time that the
real property is acquired. If the state has paid in full in the
year in which the property is acquired that proportion of the
estimated taxes that the tax commissioner determines are not
subject to remission by the county auditor for such year under
division (C)(D) of section 5713.08 of the Revised Code, the
estimated taxes paid shall be considered the tax liability on the
exempted property for that year.
Section 319.42 of the Revised Code applies to the
apportionment of special assessments.
Complaint against such values as determined by the auditor
or
the allocation of assessments by the certifying authority may
be
filed by the transferee or the remaining owner, and if filed,
proceedings including appeals shall be had in the manner and
within the time provided by sections 5717.01 to 5717.06 and
5715.19 to 5715.22 of the Revised Code, for complaints against
valuation or assessment of real property.
The auditor shall endorse on the deed or other evidences of
title presented to the auditor that the proper transfer of the
real
estate described in the deed has been made in the auditor's
office
or that
it is not entered for taxation, and sign the
auditor's name to
the deed.
The address of the grantee, or any
one of the grantees, set forth
in the deed or other evidences of
title shall be entered by the
auditor on the transfer sheets and
on the general tax list of
real property prepared pursuant to
section 319.28 of the
Revised Code.
Sec. 1705.02. A limited liability company may be formed for
any purpose or
purposes for which individuals lawfully may
associate themselves, including for any profit or nonprofit
purpose, except that,
if the Revised Code contains special
provisions for the formation of any
designated type of corporation
other than a professional association, a
limited liability company
shall not be formed for the purpose or purposes for
which that
type of corporation may be formed. At the request or direction of
the government of the United States or any agency of that
government, a
limited liability company may transact any lawful
business in aid of the
national defense or in the prosecution of
any war in which the United States
is engaged.
Sec. 5701.14. For purposes of Title LVII of the Revised
Code:
(A) In order to determine a limited liability company's
nonprofit status, an entity is operating with a nonprofit
purpose
under section 1705.02 of the Revised Code if that entity
is
organized other than for the pecuniary gain or profit of, and
its
net earnings or any part of its net earnings are not
distributable to, its members, its directors, its officers, or
other private persons, except that the payment of reasonable
compensation for services rendered, payments and distributions in
furtherance of its nonprofit purpose, and the distribution of
assets on dissolution permitted by section 1702.49 of the Revised
Code are not pecuniary gain or profit or distribution of net
earnings. In no event shall payments and distributions in
furtherance of an entity's nonprofit purpose deprive the entity of
its nonprofit status as long as all of the members of that entity
are operating with a nonprofit purpose.
(B) A single member limited liability company that operates
with a nonprofit purpose, as described in division (A) of this
section, shall be treated as part of the same
legal entity as its
nonprofit
member, and all assets and liabilities of that
single
member
limited liability company shall be considered to be
that
of the nonprofit
member. Filings or applications for exemptions
or
other tax
purposes may be made either by the single member
limited liability
company or its nonprofit member.
Sec. 5713.08. (A) The county auditor shall make a list of
all real and personal property in the auditor's county,
including
money,
credits, and investments in bonds, stocks, or otherwise,
which that is
exempted from taxation. Such list shall show the
name of the
owner, the value of the property exempted, and a
statement in
brief form of the ground on which such exemption has
been
granted. It shall be corrected annually by adding thereto the
items of property which have been exempted during the year, and
by
striking therefrom the items which in the opinion of the
auditor
have lost their right of exemption and which have been
reentered
on the taxable list, but no property shall be struck from the
exempt property list solely because the property has been conveyed
to a single member limited liability company with a nonprofit
purpose from its nonprofit member or
because the property has
been conveyed by a single member limited
liability company with a
nonprofit purpose to its nonprofit member. No additions shall be
made to
such exempt lists and no additional items of property
shall be
exempted from taxation without the consent of the tax
commissioner
as is provided for in section 5715.27 of the Revised
Code or
without the consent of the housing officer under section
3735.67
of the Revised Code. When any personal property or
endowment fund
of an
institution has once been held by the
commissioner to be
properly
exempt from taxation, it is not
necessary to obtain the
commissioner's consent to the exemption of
additional property or
investments of the same kind belonging to
the same institution,
but such property shall appear on the
abstract filed annually
with
the commissioner. The commissioner
may revise at any time
the list
in every county so that no
property is improperly or
illegally
exempted from taxation. The
auditor shall follow the
orders of the
commissioner given under
this section. An abstract
of such list
shall be filed annually
with the commissioner, on a
form approved
by the commissioner,
and a copy thereof shall
be kept on file in
the office of each
auditor for public inspection.
The commissioner shall not consider an An application for
exemption of property unless the application has attached thereto
shall include
a certificate executed by the county treasurer
certifying
one
of the following:
(1) That all taxes, assessments, interest, and penalties
levied and assessed against the property sought to be exempted
have been paid in full to for all of the tax years preceding the
date upon tax year for which the application for
exemption is
filed, except for such taxes, interest, and
penalties that may be
remitted under division (B)(C) of this
section;
(2) That the applicant has entered into a valid
delinquent
tax contract with the county treasurer
pursuant to division (A) of
section 323.31 of the Revised Code to pay all of the delinquent
taxes, assessments, interest, and penalties charged against the
property, except for such taxes, interest, and penalties that may
be remitted under division (B)(C) of this section. If the auditor
receives notice under section 323.31 of the Revised Code that
such
a written delinquent tax contract has become
void,
the auditor
shall
strike such
property from the list of exempted property and
reenter such
property on the taxable list. If property is removed
from the
exempt list because a written delinquent tax
contract
has
become void,
current taxes shall first be extended against that
property on
the general tax list and duplicate of real and public
utility
property for the tax year in which the auditor receives
the
notice required by division (A) of section 323.31 of the
Revised
Code that the delinquent tax contract has become
void
or,
if that notice is
not timely made, for the tax year in which falls
the latest date
by which the treasurer is required by such section
to give such
notice. A county auditor shall not remove from any
tax list and
duplicate the amount of any unpaid delinquent taxes,
assessments,
interest, or penalties owed on property that is
placed on the
exempt list pursuant to this division.
(3) That a tax certificate has been issued under section
5721.32
or 5721.33 of the Revised Code with respect to the
property that
is the subject of the application, and the tax
certificate is
outstanding.
(B) If the treasurer's certificate is not included with
the
application or the certificate reflects unpaid taxes,
penalties,
and interest that may not be remitted, the tax
commissioner shall
notify the property owner of that fact, and the
applicant shall
be given sixty days from the date that
notification was mailed in
which to provide the tax commissioner
with a corrected
treasurer's certificate. If a corrected
treasurer's certificate
is not received within the time permitted,
the tax commissioner
does not have authority to consider the tax
exemption
application.
(C) Any taxes, interest, and penalties which have become a
lien after the property was first used for the exempt purpose,
but
in no case prior to the date of acquisition of the title to
the
property by the applicant, may be remitted by the
commissioner,
except as is provided in division (A) of section 5713.081
of the
Revised Code.
(C)(D) Real property acquired by the state in fee simple is
exempt from taxation from the date of acquisition of title or
date
of possession, whichever is the earlier date, provided that
all
taxes, interest, and penalties as provided in the
apportionment
provisions of section 319.20 of the Revised Code
have been paid to
the date of acquisition of title or date of
possession by the
state, whichever is earlier. The proportionate
amount of taxes
that are a lien but not yet determined, assessed,
and levied for
the year in which the property is acquired, shall
be remitted by
the county auditor for the balance of the year
from date of
acquisition of title or date of possession,
whichever is earlier.
This section shall not be construed to
authorize the exemption of
such property from taxation or the
remission of taxes, interest,
and penalties thereon until all
private use has terminated.
Sec. 5715.27. (A) Except as provided in section 3735.67 of
the Revised Code, the owner, a vendee in possession under a
purchase agreement or a land contract, the beneficiary of a trust,
or a lessee for an initial term of not less than thirty years of
any property may file an
application with the tax commissioner, on
forms prescribed by the
commissioner, requesting that such
property be exempted from
taxation and that taxes, interest,
and
penalties be remitted as
provided in division (B)(C) of
section
5713.08 of the Revised Code.
(B) The board of education of any school district may
request
the tax commissioner to provide it with notification of
applications for exemption from taxation for property located
within that district. If so requested, the commissioner shall
send
to the board for the quarters ending on the last day of
March,
June, September, and December of each year, on a monthly basis
reports that
contain sufficient information to enable the board to
identify
each property that is the subject of an exemption
application,
including, but not limited to, the name of the
property owner or
applicant, the address of the property, and the
auditor's parcel
number. The commissioner shall mail the reports
on or about by the
fifteenth day of the month following the end of
the quarter month in which the commissioner receives the
applications for exemption.
(C) A board of education that has requested notification
under division (B) of this section may, with respect to any
application for exemption of property located in the district and
included in the commissioner's most recent report provided under
that division, file a statement with the commissioner and with
the
applicant indicating its intent to submit evidence and
participate
in any hearing on the application. The statements
shall be filed
prior to the first day of the third month
following the end of the
quarter month in which that application was
docketed by the
commissioner. A statement filed in compliance
with this division
entitles the district to submit evidence and
to participate in any
hearing on the property and makes the
district a party for
purposes of sections 5717.02 to 5717.04 of
the Revised Code in any
appeal of the commissioner's decision to
the board of tax appeals.
(D) The commissioner shall not hold a hearing on or grant
or
deny an application for exemption of property in a school
district
whose board of education has requested notification
under division
(B) of this section until the end of the period
within which the
board may submit a statement with respect to
that application
under division (C) of this section. The
commissioner may act upon
an application at any time prior to
that date upon receipt of a
written waiver from each such board
of education, or, in the case
of exemptions authorized by section
725.02, 1728.10, 5709.40,
5709.41, 5709.411, 5709.62, or 5709.63, 5709.632, 5709.73,
5709.78, 5709.84, or 5709.88 of the
Revised Code, upon the request
of the property owner. Failure of
a board of education to receive
the report required in division
(B) of this section shall not void
an action of the commissioner
with respect to any application. The
commissioner may extend the
time for filing a statement under
division (C) of this section.
(E) A complaint may also be filed with the commissioner by
any person, board, or officer authorized by section 5715.19 of
the
Revised Code to file complaints with the county board of
revision
against the continued exemption of any property granted exemption
by the commissioner under this section.
(F) An application for exemption and a complaint against
exemption shall be filed prior to the thirty-first day of
December
of the tax year for which exemption is requested or for
which the
liability of the property to taxation in that year is
requested.
The commissioner shall consider such application or
complaint in
accordance with procedures established by the
commissioner,
determine whether the property is subject to taxation or
exempt
therefrom, and certify the commissioner's findings to
the auditor,
who shall correct the tax list and duplicate accordingly.
If a
tax certificate has been sold under section 5721.32 or 5721.33 of
the
Revised Code with respect to property for which an exemption
has been requested, the tax commissioner shall also certify the
findings to
the county treasurer of the county in which the
property is located.
(G) Applications and complaints, and documents of any kind
related to applications and complaints, filed with the tax
commissioner under this section, are public records within the
meaning of section 149.43 of the Revised Code.
(H) If the commissioner determines that the use of
property
or other facts relevant to the taxability of property
that is the
subject of an application for exemption or a
complaint under this
section has changed while the application or
complaint was
pending, the commissioner may make the
determination under
division (F) of this section separately for
each tax year
beginning with the year in which the application or
complaint was
filed or the year for which remission of
taxes under division
(B)(C) of section 5713.08 of the Revised Code
was requested, and
including each subsequent tax year during
which the application or
complaint is pending before the
commissioner.
Sec. 5815.36. (A) As used in this section:
(1) "Disclaimant" means any person, any guardian or
personal
representative of a person or estate of a person, or any
attorney-in-fact or agent of a person having a general or
specific
authority to act granted in a written instrument, who is
any of
the following:
(a) With respect to testamentary instruments and intestate
succession, an heir, next of kin, devisee, legatee, donee, person
succeeding to a disclaimed interest, surviving joint tenant,
surviving tenant by the entireties, surviving tenant of a tenancy
with a right of survivorship, beneficiary under a testamentary
instrument, or person designated to take pursuant to a power of
appointment exercised by a testamentary instrument;
(b) With respect to nontestamentary instruments, a
grantee,
donee, person succeeding to a disclaimed interest,
surviving joint
tenant, surviving tenant by the entireties,
surviving tenant of a
tenancy with a right of survivorship,
beneficiary under a
nontestamentary instrument, or person
designated to take pursuant
to a power of appointment exercised
by a nontestamentary
instrument;
(c) With respect to fiduciary rights, privileges, powers,
and
immunities, a fiduciary under a testamentary or
nontestamentary
instrument. This Division (A)(1)(c) of this section does not
authorize a
fiduciary who disclaims fiduciary rights, privileges,
powers, and immunities to disclaim cause the rights of
beneficiaries any beneficiary to be disclaimed unless the
instrument creating the fiduciary relationship authorizes the
fiduciary to make such a
disclaimer.
(d) Any person entitled to take an interest in property
upon
the death of a person or upon the occurrence of any other
event.
(2) "Personal representative" includes any fiduciary as
defined in section 2109.01 of the Revised Code and any executor,
trustee, guardian, or other person or entity having a fiduciary
relationship with regard to any interest in property passing to
the fiduciary, executor, trustee, guardian, or other person or
entity by reason of a disclaimant's death.
(3) "Property" means all forms of property, real and
personal, tangible and intangible.
(B)(1) A disclaimant, other than a fiduciary under an
instrument who is not authorized by the instrument to disclaim
the
interest of a beneficiary, may disclaim, in whole or in part,
the
succession to any property by executing and by delivering,
filing,
or recording a written disclaimer instrument in the
manner
provided in this section.
(2) A disclaimant who is a fiduciary under an instrument
may
disclaim, in whole or in part, any right, power, privilege,
or
immunity, by executing and by delivering, filing, or recording
a
written disclaimer instrument in the manner provided in this
section.
(3) The written instrument of disclaimer shall be signed
and
acknowledged by the disclaimant and shall contain all of the
following:
(a) A reference to the donative instrument;
(b) A description of the property, part of property, or
interest disclaimed, and of any fiduciary right, power,
privilege,
or immunity disclaimed;
(c) A declaration of the disclaimer and its extent.
(4) The guardian of the estate of a minor or an
incompetent,
or the personal representative of a deceased person, whether or
not authorized by the instrument to disclaim,
with the
consent of
the probate division of the court of common
pleas, may
disclaim,
in whole or in part, the succession to any
property, or
interest
in property, that the ward, if an adult and
competent, or
the
deceased, if living, might have disclaimed.
The guardian or
personal representative, or any interested person
may file an
application with the probate division of the court of
common pleas
that has jurisdiction of the estate, asking that the
court order
the guardian or personal representative to execute
and deliver,
file, or record the disclaimer on behalf of the ward
or, estate,
or deceased person.
The court shall order the guardian or personal
representative to
execute and deliver, file, or record the
disclaimer if the court
finds, upon hearing after notice to
interested parties and such
other persons as the court shall
direct, that:
(a) It is in the best interests of those interested in the
estate of the person and of those who will take the disclaimed
interest;
(b) It would not materially, adversely affect the minor or
incompetent, or the beneficiaries of the estate of the decedent,
taking into consideration other available resources and the age,
probable life expectancy, physical and mental condition, and
present and reasonably anticipated future needs of the minor or
incompetent or the beneficiaries of the estate of the decedent.
A written instrument of disclaimer ordered by the court
under
this division shall be executed and be delivered, filed, or
recorded within the time and in the manner in which the person
could have disclaimed if the person were living, an adult,
and
competent.
(C) A partial disclaimer of property that is subject to a
burdensome interest created by the donative instrument is not
effective unless the disclaimed property constitutes a gift that
is separate and distinct from undisclaimed gifts.
(D) The disclaimant shall deliver, file, or record the
disclaimer, or cause the same to be done, not later than nine
months prior to accepting any benefits of the disclaimed interest
and at any time after the latest of the following dates:
(1) The effective date of the donative instrument if both
the
taker and the taker's interest in the property are
finally
ascertained on that date;
(2) The date of the occurrence of the event upon which
both
the taker and the taker's interest in the property
become finally
ascertainable;
(3) The date on which the disclaimant attains twenty-one
eighteen
years of age or is no longer an incompetent, without
tendering or
repaying any benefit received while the disclaimant
was under
twenty-one eighteen years of age or an incompetent, and
even if a guardian
of a minor or incompetent had filed an
application pursuant to
division (B)(4) of this section and the
probate division of the
court of common pleas involved did not
consent to the guardian
executing a disclaimer.
(E) No disclaimer instrument is effective under this
section
if either of the following applies under the terms of the
disclaimer instrument:
(1) The disclaimant has power to revoke the disclaimer.
(2) The disclaimant may transfer, or direct to be
transferred, to self the entire legal and equitable
ownership
of
the property subject to the disclaimer instrument.
(F)(1) Subject to division (F)(2) of this section,
if the
interest disclaimed is created by a
nontestamentary instrument,
the disclaimer instrument shall be
delivered personally or by
certified mail to the trustee or other
person who has legal title
to, or possession of, the property
disclaimed.
(2) If the interest disclaimed is created by a
testamentary
instrument, by intestate succession,
by a
transfer on death
deed
pursuant to section 5302.22 of the Revised Code,
or by a
certificate of title to a motor vehicle, watercraft, or outboard
motor that evidences ownership of the motor vehicle, watercraft,
or outboard motor that is transferable on death pursuant to
section 2131.13 of the Revised Code, the
disclaimer instrument
shall be filed in the probate division of
the court of common
pleas in the county in which proceedings for
the administration of
the decedent's estate have been commenced,
and an executed copy of
the disclaimer instrument shall be
delivered personally or by
certified mail to the personal
representative of the decedent's
estate.
(3) If no proceedings for the administration of the
decedent's estate have been commenced, the disclaimer instrument
shall be filed in the probate division of the court of common
pleas in the county in which proceedings for the administration
of
the decedent's estate might be commenced according to law.
The
disclaimer instrument shall be filed and indexed, and fees
charged, in the same manner as provided by law for an application
to be appointed as personal representative to administer the
decedent's estate. The disclaimer is effective whether or not
proceedings thereafter are commenced to administer the decedent's
estate. If proceedings thereafter are commenced for the
administration of the decedent's estate, they shall be filed
under, or consolidated with, the case number assigned to the
disclaimer instrument.
(4) If an interest in real estate is disclaimed, an
executed
copy of the disclaimer instrument also shall be recorded
in the
office of the recorder of the county in which the real
estate is
located. The disclaimer instrument shall include a
description of
the real estate with sufficient certainty to
identify it, and
shall contain a reference to the record of the
instrument that
created the interest disclaimed. If title to the
real estate is
registered under Chapters 5309. and 5310. of the
Revised Code, the
disclaimer interest shall be entered as a
memorial on the last
certificate of title. A spouse of a
disclaimant has no dower or
other interest in the real estate
disclaimed.
(G) Unless the If a donative instrument expressly provides
that,
if there is for the distribution of property, part of
property, or interest in property if there is a disclaimer, there
shall not be any
acceleration of
remainders or other interests,
the property, part of property, or interest disclaimed shall be
distributed or disposed of, and accelerated or not accelerated, in
accordance with the donative instrument. In the absence of express
provisions to the contrary in the donative instrument, the
property, part
of property, or
interest in property disclaimed,
and any future
interest that is
to take effect in possession or
enjoyment at or
after the
termination of the interest disclaimed,
shall descend,
be
distributed, or otherwise be disposed of, and
shall be
accelerated, in the following manner:
(1) If intestate or testate succession is disclaimed, as
if
the disclaimant had predeceased the decedent;
(2) If the disclaimant is one designated to take pursuant
to
a power of appointment exercised by a testamentary instrument,
as
if the disclaimant had predeceased the donee of the power;
(3) If the donative instrument is a nontestamentary
instrument, as if the disclaimant had died before the effective
date of the nontestamentary instrument;
(4) If the disclaimer is of a fiduciary right, power,
privilege, or immunity, as if the right, power, privilege, or
immunity was never in the donative instrument.
(H) A disclaimer pursuant to this section is effective as
of,
and relates back for all purposes to, the date upon which the
taker and the taker's interest have been finally
ascertained.
(I) A disclaimant who has a present and future interest in
property, and disclaims the disclaimant's present interest
in
whole or in part,
is considered to have disclaimed the
disclaimant's future
interest to the same
extent, unless a
contrary intention appears in the disclaimer
instrument or the
donative instrument. A disclaimant is not
precluded from
receiving, as an alternative taker, a beneficial
interest in the
property disclaimed, unless a contrary intention
appears in the
disclaimer instrument or in the donative
instrument.
(J) The disclaimant's right to disclaim under this section
is
barred if, before the expiration of the period within which
the
disclaimant
may disclaim the interest, the disclaimant does any of
the
following:
(1) Assigns, conveys, encumbers, pledges, or transfers, or
contracts to assign, convey, encumber, pledge, or transfer, the
property or any interest in it;
(2) Waives in writing the disclaimant's right to disclaim
and
executes
and delivers, files, or records the waiver in the
manner
provided
in this section for a disclaimer instrument;
(3) Accepts the property or an interest in it;
(4) Permits or suffers a sale or other disposition of the
property pursuant to judicial action against the
disclaimant.
(K) A Neither a fiduciary's application for appointment or
assumption
of duties as a fiduciary does not waive nor a
beneficiary's application for appointment as a personal
representative or fiduciary waives or bar bars the
disclaimant's
right to disclaim a right, power, privilege, or immunity as a
personal representative or fiduciary or the beneficiary's right to
disclaim property.
(L) The right to disclaim under this section exists
irrespective of any limitation on the interest of the disclaimant
in the nature of a spendthrift provision or similar restriction.
(M) A disclaimer instrument or written waiver of the right
to
disclaim that has been executed and delivered, filed, or
recorded
as required by this section is final and binding upon
all
persons.
(N) The right to disclaim and the procedures for
disclaimer
established by this section are in addition to, and do
not exclude
or abridge, any other rights or procedures existing that exist or
formerly existed
under any
other section of the Revised Code or at
common law to
assign,
convey, release, refuse to accept, renounce,
waive, or
disclaim
property.
(O)(1) No person is liable for distributing or disposing
of
property in a manner inconsistent with the terms of a valid
disclaimer if the distribution or disposition is otherwise proper
and the person has no actual knowledge of the disclaimer.
(2) No person is liable for distributing or disposing of
property in reliance upon the terms of a disclaimer that is
invalid because the right of disclaimer has been waived or barred
if the distribution or disposition is otherwise proper and the
person has no actual knowledge of the facts that constitute a
waiver or bar to the right to disclaim.
(P)(1) A disclaimant may disclaim pursuant to this
section
any interest in property that is in existence on
September 27,
1976, if either the interest in the property or the
taker of the
interest in the property is not finally ascertained
on that date.
(2) No disclaimer executed pursuant to this section
destroys
or diminishes an interest in property that exists on
September 27,
1976, in any person other than the disclaimant.
(Q) This section may be applied separately to different
interests or powers created in the disclaimant by the same
testamentary or nontestamentary instrument.
Section 2. That existing sections 319.20,
1705.02, 5713.08,
5715.27, and 5815.36 of the Revised Code
are hereby repealed.
Section 3. Sections 319.20, 5713.08, and
5715.27 of the
Revised Code, as amended by this act, are remedial
in nature and
apply to the tax years at issue in any application
for exemption
from taxation pending before the Tax Commissioner,
the Board of
Tax Appeals, the Court of Appeals, or the Supreme
Court on the
effective date of this act and to that property that
is the
subject of any application.
Section 4. The amendments to divisions (A), (B), (G), (K),
(N), and (Q) of section 5815.36 of the Revised Code contained in
Section 1 of this act are intended to clarify and be declaratory
of the law as it existed prior to the enactment of this act and
shall be construed accordingly.
Section 5. The General Assembly recognizes that section 2518
of the Internal Revenue Code defines a qualified disclaimer, in
part, as a written refusal by a person to accept an interest in
property that is received by the transferor of the interest within
nine months after the later of the date on which the transfer
creating the interest is made and the date on which the person
attains twenty-one years of age. By amending division (D) of
section 5815.36 of the Revised Code to eliminate a reference to
the nine-month period, the General Assembly intends to create the
possibility that some disclaimers governed by the law of this
state will be qualified under section 2518 of the Internal Revenue
Code and some will not be qualified under that section.
Section 6. Section 1705.02 of the Revised Code, as amended
by this act, and section 5701.14 of the Revised Code, as enacted
by this act, apply to limited liability companies that were in
existence prior to the effective date of this act and that assert
to be nonprofit limited liability companies.
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