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Sub. S. B. No. 196 As Passed by the SenateAs Passed by the Senate
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Carey, Cates, Schuler, Austria, Fedor, Harris, Jacobson, Kearney, Mason, Mumper, Niehaus, Padgett, Roberts, Sawyer, Smith, Spada, Wagoner
A BILL
To amend sections 1151.345, 1161.59, 1721.211,
1733.51,
2108.81, 2117.251, 3103.03, 3901.04,
3905.451,
4717.01,
4717.03, 4717.13, 4717.14,
4717.99, and
5747.02,
to enact sections 4717.31
to 4717.38,
and to
repeal sections 1111.19 and
1111.99 of the
Revised
Code to revise the
Preneed Funeral
Contract Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1151.345, 1161.59, 1721.211,
1733.51,
2108.81, 2117.251, 3103.03, 3901.04, 3905.451, 4717.01,
4717.03,
4717.13, 4717.14, 4717.99, and 5747.02 be amended and
sections
4717.31,
4717.32, 4717.33, 4717.34, 4717.35, 4717.36,
4717.37, and
4717.38 of the Revised Code be enacted to
read as
follows:
Sec. 1151.345. A savings and loan association, in accordance
with
sections 1111.19 and 1721.211 and 4717.31 to 4717.38 of the
Revised
Code,
may receive and hold on deposit
moneys under a
preneed
funeral contract or a preneed cemetery
merchandise and
services
contract.
Sec. 1161.59. In accordance with sections 1111.19 and
1721.211 and 4717.31 to 4717.38 of the Revised
Code, a savings
bank may
receive and hold on deposit moneys under a preneed
funeral
contract or a preneed cemetery merchandise and
services
contract.
Sec. 1721.211. (A) As used in this section, "preneed
cemetery merchandise and services contract" means a
written
agreement, contract, or
series of contracts to sell or otherwise
provide an outer
burial container,
monument, marker, urn, other
type of merchandise customarily sold by
cemeteries, or
opening and
closing services
to be used or provided in connection with the
final disposition of a
dead human body, where payment for the
container, monument, marker, urn, other
type of merchandise
customarily sold by cemeteries, or opening and
closing services is
made either outright
or on an installment basis, prior to the
death of the person so
purchasing or for whom so purchased.
"Preneed
cemetery merchandise and services
contract" does not
include any preneed funeral contract or any
agreement, contract,
or series of contracts pertaining to the
sale of any burial lot,
burial or interment right, entombment
right, or columbarium right
with respect to which an endowment
care trust is established or is
exempt from establishment
pursuant
to section 1721.21 of the
Revised Code.
(B) Subject to the limitations and restrictions contained
in
Chapters 1101. to 1127. of the Revised Code, a
trust company
licensed under Chapter 1111.
of the Revised Code or a national
bank, federal savings bank, or federal savings association that
pledges securities
in
accordance with section 1111.04 of the
Revised Code or the
individuals
described in division
(C)(2) of
this section have the
power as trustee to
receive and to hold and
invest in accordance
with
sections 2109.37 and 2109.371 of the
Revised Code moneys
under a preneed cemetery merchandise and
services
contract.
(C)(1) The greater of Either one hundred ten per cent of
the
seller's actual cost or thirty per cent of the seller's retail
price of
the merchandise and seventy per cent of the seller's
retail price
of the services to be provided under a preneed
cemetery
merchandise and services
contract shall remain intact as
a
fund until the death of the person for whose benefit the
contract is made or the merchandise is
delivered as set forth
in
division (K) of this section. However, any moneys held
pursuant to
this section shall be released upon demand of the
person for whose
benefit the contract was made or upon the demand
of the seller for
its share of the moneys held
and earned
interest if the contract
has been canceled as set forth in
division (G) of this section.
(2) The trustee of the fund described in division
(C)(1) of
this section shall be a trust company licensed under
Chapter 1111.
of the Revised Code or a national bank, federal savings bank, or
federal savings
association
that pledges securities in accordance
with section
1111.04 of the Revised Code
or at least
three
individuals who have
been residents of the county in which the
seller is
located for at
least one year, each of whom shall be
bonded
by a corporate surety
in an amount that is at least equal
to the amount
deposited in the
fund of which those
persons serve
as trustee.
Amounts in the fund
shall be held and invested
in
the manner in which trust funds are
permitted to be held and
invested
pursuant to sections 2109.37 and
2109.371
of the Revised
Code.
(3) Every preneed cemetery and merchandise contract entered
into on or after the effective date of this amendment October 12,
2006, shall include a provision in substantially the following
form:
NOTICE: Under Ohio law, the person holding the right of
disposition of the remains of the beneficiary of this contract
pursuant to section 2108.70 or 2108.81 of the Revised Code will
have the right to purchase cemetery merchandise and services
inconsistent with the merchandise and services set forth in this
contract. However, the beneficiary is encouraged to state his or
her the beneficiary's preferences as to the manner of final
disposition in a declaration of the right of disposition pursuant
to section 2108.72 of the Revised Code, including that the
arrangements set forth in this contract shall be followed.
(D) Within thirty days after the last
business day of the
month in which the seller of cemetery merchandise or
services
receives final
contractual payment under a preneed cemetery
merchandise and services contract, the
seller shall
deliver the
greater of either one hundred ten per cent of the seller's actual
cost
or thirty per cent of the seller's retail price of
the
merchandise and seventy per cent of the seller's current
retail
price of the services as of the date of the contract
to a trustee
or to trustees as described in division
(C)(2) of this section,
and the moneys
and accruals or income on the moneys shall be held
in
a fund and designated for the person for whose benefit the
fund
was
established
as a preneed cemetery merchandise and services
contract fund.
(E) The moneys received from more than one preneed
cemetery
merchandise and services contract may, at
the option of the
persons for whose
benefit the contracts are made, be placed in a
common or pooled
trust fund in this state under a single trust
instrument. If three
individuals are designated as
the trustees as
provided in division (C)(2) of this
section, they shall be bonded
by a corporate
surety or fidelity bond in an aggregate amount of
not
less than one hundred per cent of
the funds held by them as
trustees. The trustees or
their agent shall,
on a continuous
basis, keep exact records as to the amount of
funds under a single
trust instrument being
held for the individual beneficiaries
showing the amount paid, the amount
deposited and invested, and
accruals and income.
(F) The seller of merchandise or services under a
preneed
cemetery merchandise and services contract
shall annually submit
to the
division of real estate of the department of commerce an
affidavit in a form prescribed by the division, sworn under
oath,
specifying each of the following:
(1) That, within the time specified in
division (D) of this
section,
the amounts required by that division were deposited in
an
appropriate fund;
(2) That the fund has not been used to collateralize
or
guarantee loans and has not otherwise been subjected to any
consensual lien;
(3) That the fund is invested in compliance with the
investing standards set forth in sections 2109.37 and 2109.371
of
the Revised Code;
(4) That no moneys have been removed from the fund,
except as
provided for in this section.
(G) This division is subject to division (I) of this
section.
Any person upon initially entering into a preneed
cemetery
merchandise and services contract may,
within seven days, cancel
the contract
and request and receive from the seller one hundred
per cent of
all payments made under the contract. After the
expiration of
the above period, any person who has entered into a
preneed
cemetery merchandise and services contract may, on
not
less than fifteen days' notice,
cancel the contract and request
and receive from the seller sixty
per cent of the payments made
under the contract which have been
paid up to the time of
cancellation; except that, if a preneed
cemetery merchandise and
services contract
stipulates a firm or fixed or guaranteed
price
for the merchandise or services for future
use at a time
determined by
the death of the person on behalf of whom payments
are made, the
person who has entered into the contract may, if the
merchandise
has not been delivered or the services have not been
performed as set
forth in division (K) or (L) of this
section, on
not less than fifteen days' notice, cancel the
contract and
receive from the seller sixty per cent of the
principal paid
pursuant to the
contract and not
less than eighty per cent of any
interest paid, up to the time of
cancellation, and not less than
eighty per cent of any accrual or
income earned while the moneys
have been held pursuant
to divisions (C) and (D) of this section,
up to the time of
cancellation. Upon cancellation, after the
moneys have been
distributed to the beneficiary pursuant to this
division, all
remaining moneys being held pursuant to
divisions
(C) and (D) of
this section shall be paid to the seller. If more
than one
person enters into the contract, all of those persons
must
request cancellation for it to be effective under this
division.
In such a case, the seller shall refund to each person
only those
moneys that each person has paid under the contract.
(H) Upon receipt of a certified copy of the certificate of
death or evidence of delivery of the merchandise or
performance of
the services pursuant to
division (K) or (L) of this section, the
trustee
described in division (C)(2) of this
section or its
agent,
shall forthwith pay the fund and accumulated
interest, if
any, to
the person entitled to them under the preneed
cemetery merchandise
and services contract. The
payment of the fund and accumulated
interest pursuant to this section, either to a seller
or person
making the payments, shall relieve the trustee of
any further
liability on the fund or accumulated interest.
(I) Notwithstanding any other provision of this section, any
preneed cemetery merchandise and services contract may specify
that it is irrevocable.
All irrevocable preneed cemetery
merchandise and services contracts shall
include a clear and
conspicuous disclosure of irrevocability in the contract
and any
person entering into an irrevocable preneed cemetery merchandise
and
services contract shall sign a separate acknowledgment of the
person's waiver
of the right to revoke. If a contract satisfies
the requirements of this
division, division (G) of this section
does not
apply to that contract.
(J) Any preneed cemetery merchandise and services
contract
that involves the
payment of money shall be in writing and in
compliance with
the laws and rules of this state.
(K) For purposes of this section, the seller is
considered to
have delivered merchandise pursuant to a preneed
cemetery
merchandise and services
contract when either of the following
occur:
(1) The seller makes actual delivery of the merchandise
to
the beneficiary, or the seller pays for the merchandise and
identifies
it as being stored for the benefit of the beneficiary
at a manufacturer's
warehouse.
(2) The seller receives delivery of the
merchandise on behalf
of the beneficiary, and all of the following occur:
(a) The merchandise is permanently
affixed to or stored upon
the
real property of a cemetery located in this state.
(b) The seller notifies the beneficiary of receipt of the
merchandise and identifies the specific location of the
merchandise.
(c) The seller at the time of the beneficiary's final
payment
provides the beneficiary with evidence of ownership in
the
beneficiary's name showing the merchandise to
be free and
clear of
any liens or other encumbrances.
(L) For purposes of this section, a seller is considered to
have performed services pursuant to a preneed cemetery
merchandise
and services contract when the beneficiary's next of
kin signs a
written statement that the services have been
performed or, if no
next of kin of the beneficiary can be located through
reasonable
diligence, when the owner or other person responsible for the
operation of the cemetery signs a statement of that nature.
(M) Notwithstanding any other provision of this chapter,
any
trust may be charged a trustee's fee, which is to be deducted
from
the earned income or accruals on that trust. The fee shall
not
exceed the amount that is regularly or usually charged for
similar
services rendered by the trustee
described in division (C)(2) of
this section when
serving as a trustee.
(N) The general assembly intends that this section be
construed as a limitation upon the manner in which a person is
permitted to accept moneys in prepayment for
merchandise and
services to be
delivered or provided in the future, or
merchandise
and services to be used or provided in
connection with the final
disposition of human remains, to the
end that at all times members
of the public may have an
opportunity to arrange and pay for
merchandise and
services for themselves
and their families in
advance of need while at the same time
providing all possible
safeguards whereunder the prepaid moneys
cannot be dissipated,
whether intentionally or not, so as to be
available for the
payment for merchandise and
services and the providing of
merchandise and services used or provided
in connection with the
final disposition of
dead human bodies.
(O) This section does not apply to the seller or
provider of
merchandise or services under a
preneed cemetery merchandise and
services contract
if the contract pertains to a cemetery that is
owned and operated
entirely and exclusively by an established and
legally cognizable church
or denomination
that is exempt from
federal income taxation under section
501(c)(3) of the "Internal
Revenue Code of 1954," 26 U.S.C.A.
501,
an established fraternal
organization,
or a municipal corporation or other political
subdivision of the
state, to a cemetery that is a national
cemetery, or to a cemetery
that is a family cemetery as defined in
section 4767.02 of the
Revised Code; provided that, on a voluntary
basis, rules and
other measures are adopted
to
safeguard and
secure all moneys received under a preneed
cemetery merchandise
and services contract.
(P) This section does not prohibit persons other than
cemetery
corporations or associations from selling outer burial
containers, monuments,
markers, urns, or other
types of
merchandise customarily sold by cemeteries pursuant to a
preneed
cemetery merchandise and services contract; however all
sellers of
merchandise pursuant to a preneed cemetery merchandise
and
services contract shall comply with this section unless the
seller
is specifically exempt from this section.
(Q) Any contract for preneed services or merchandise entered
into
with a cemetery not registered under section 4767.03 of
the
Revised Code is voidable.
Sec. 1733.51. A credit union may, subject to sections
1111.19 and 1721.211 and 4717.31 to 4717.38 of
the Revised Code,
receive and
hold on deposit moneys under a preneed funeral
contract or preneed
cemetery merchandise and services contract.
Sec. 2108.81. (A) If either of the following is true,
division (B) of this section shall apply:
(1) An adult has not executed a written declaration pursuant
to sections 2108.70 to 2108.73 of the Revised Code that remains in
force at the time of the adult's death.
(2) Each person to whom the right of disposition has been
assigned or reassigned pursuant to a written declaration is
disqualified from exercising the right as described in section
2108.75 of the Revised Code.
(B) Subject to division (A) of this section and sections
2108.75 and 2108.79 of the Revised Code, the right of disposition
is assigned to the following persons, if mentally competent adults
who can be located with reasonable effort, in the order of
priority stated:
(1) The deceased person's surviving spouse;
(2) The sole surviving child of the deceased person or, if
there is more than one surviving child, all of the surviving
children, collectively.;
(3) The deceased person's surviving parent or parents;
(4) The deceased person's surviving sibling, whether of the
whole or of the half blood or, if there is more than one sibling
of the whole or of the half blood, all of the surviving siblings,
collectively;
(5) The deceased person's surviving grandparent or
grandparents;
(6) The deceased person's surviving grandchild, or if there
is more than one surviving grandchild, all of the surviving
grandchildren collectively;
(7) The lineal descendants of the deceased person's
grandparents, as described in division (I) of section 2105.06 of
the Revised Code;
(7)(8) The person who was the deceased person's guardian at
the time of the deceased person's death, if a guardian had been
appointed;
(8)(9) Any other person willing to assume the right of
disposition, including the personal representative of the deceased
person's estate or the licensed funeral director with custody of
the deceased person's body, after attesting in writing that a good
faith effort has been made to locate the persons in divisions
(B)(1) to (7) of this section.
(10) If the deceased person was an indigent person or other
person the final disposition of whose body is the financial and
statutory responsibility
of the state or a political subdivision
of this state, the public
officer or employee responsible for
arranging the final
disposition of the remains of the deceased
person.
Sec. 2117.251. A claim under the bill of a funeral director
pursuant to section 2117.25 of the Revised Code arises subsequent
to the death of the decedent and is not in satisfaction of a
personal obligation of the individual during the individual's
lifetime. If a decedent during the decedent's lifetime has
purchased an irrevocable preneed funeral contract pursuant to
section 1111.19 4717.34 of the Revised Code, then those provisions
of section 2117.25 of the Revised Code that relate to the bill of
a funeral director, including divisions (A) and (B) of that
section, do not apply to the estate of the decedent and the estate
is not liable for the funeral expenses of the decedent.
Sec. 3103.03. (A) Each married person must support
the
person's self and
spouse out of the person's
property or by the
person's labor. If a married
person is unable
to do so, the
spouse
of the married person must assist in the
support so far as
the
spouse is able. The biological or adoptive
parent of a minor
child
must support the parent's
minor children
out of the parent's
property or by
the parent's labor.
(B) Notwithstanding section 3109.01 of the Revised Code and
to the extent
provided in section 3319.86 3119.86 of the Revised
Code,
the
parental duty of support to children shall
continue
beyond the age
of majority as long as the child
continuously
attends on a
full-time basis any recognized and
accredited high
school. That
duty of support shall continue
during seasonal
vacation periods.
(C) If a married person neglects to support the
person's
spouse in accordance with this section, any other person, in good
faith, may supply the spouse with necessaries for the support of
the spouse and recover the reasonable value of the necessaries
supplied from the married person who neglected to support the
spouse unless the spouse abandons that person without cause.
(D) If a parent neglects to support the parent's
minor child
in accordance with this section and if the minor child in
question
is unemancipated, any other person, in good faith, may
supply the
minor child with necessaries for the support of the
minor child
and recover the reasonable value of the necessaries
supplied from
the parent who neglected to support the minor
child.
(E) If a decedent during the decedent's lifetime has
purchased
an
irrevocable preneed funeral contract pursuant to
section
1109.75 4717.34 of the Revised Code, then the duty of
support owed
to a
spouse
pursuant to this section does not include
an
obligation to pay
for the funeral expenses of the deceased
spouse.
This division
does not preclude a surviving spouse from
assuming
by contract
the obligation to pay for the funeral
expenses of the
deceased
spouse.
Sec. 3901.04. (A) As used in this section:
(1) "Laws of this state relating to insurance" include but
are not limited to Chapter
1751. notwithstanding section 1751.08,
Chapter 1753.,
Title XXXIX, sections 5725.18 to 5725.25, and
Chapter 5729. of the Revised Code. Sections 4717.31, 4717.33,
4717.34, 4717.35, and 4717.37 of the Revised Code are "laws of
this state relating to insurance" to the extent those sections
apply to insurance companies or insurance agents.
(2) "Person" has the meaning defined in division (A) of
section 3901.19 of the Revised Code.
(B) Whenever it appears to the superintendent of
insurance,
from the superintendent's files, upon complaint
or otherwise, that
any person has engaged in, is engaged in, or is about to
engage in
any act or practice declared to be illegal or prohibited by the
laws of this state relating to insurance, or defined as unfair or
deceptive by such laws, or when the superintendent believes it to
be in the best interest of the public and necessary for the
protection of the people in this state, the superintendent or
anyone designated by the superintendent under the
superintendent's
official seal may do any one or more of the following:
(1) Require any person to file with the superintendent, on
a
form that is appropriate for review by the superintendent, an
original or additional statement or report in writing, under oath
or otherwise, as to any facts or circumstances concerning the
person's conduct of the business of insurance within this state
and as to any other information that the superintendent considers
to be material or relevant to such business;
(2) Administer oaths, summon and compel by order or
subpoena
the attendance of witnesses to testify in relation to
any matter
which, by the laws of this state relating to
insurance, is the
subject of inquiry and investigation, and
require the production
of any book, paper, or document pertaining
to such matter. A
subpoena, notice, or order under this section
may be served by
certified mail, return receipt requested. If
the subpoena, notice,
or order is returned because of inability
to deliver, or if no
return is received within thirty days of the
date of mailing, the
subpoena, notice, or order may be served by
ordinary mail. If no
return of ordinary mail is received within
thirty days after the
date of mailing, service shall be deemed to
have been made. If the
subpoena, notice, or order is returned
because of inability to
deliver, the superintendent may designate
a person or persons to
effect either personal or residence
service upon the witness.
Service of any subpoena, notice, or
order and return may also be
made in any manner authorized under
the Rules of Civil Procedure.
Such service shall be made by an
employee of the department
designated by the superintendent, a
sheriff, a deputy sheriff, an
attorney, or any person authorized
by the Rules of Civil Procedure
to serve process.
In the case of disobedience of any notice, order, or
subpoena
served on a person or the refusal of a witness to
testify to a
matter regarding which the person may lawfully
be interrogated,
the court of common pleas of the county where venue
is
appropriate, on application by the superintendent, may compel
obedience by attachment proceedings for contempt, as in the case
of disobedience of the requirements of a subpoena issued from
such
court, or a refusal to testify therein. Witnesses shall
receive
the fees and mileage allowed by section 2335.06 of the
Revised
Code. All such fees, upon the presentation of proper
vouchers
approved by the superintendent, shall be paid out of the
appropriation for the contingent fund of the department of
insurance. The fees and mileage of witnesses not summoned by the
superintendent or the superintendent's designee shall not be
paid
by the state.
(3) In a case in which there is no administrative
procedure
available to the superintendent to resolve a matter at
issue,
request the attorney general to commence an action for a
declaratory judgment under Chapter 2721. of the Revised Code with
respect to the matter.
(4) Initiate criminal proceedings by presenting evidence
of
the commission of any criminal offense established under the
laws
of this state relating to insurance to the prosecuting
attorney of
any county in which the offense may be prosecuted.
At the request
of the prosecuting attorney, the attorney general
may assist in
the prosecution of the violation with all the
rights, privileges,
and powers conferred by law on prosecuting
attorneys including,
but not limited to, the power to appear
before grand juries and to
interrogate witnesses before grand
juries.
Sec. 3905.451.
A life insurance policy or annuity
that is
issued,
sold,
or assigned for the
purpose of
purchasing funeral
or
burial goods
or
services, and the contractual obligation to
provide the goods
or services, are not
subject to section
1111.19
4717.36
of the
Revised Code.
Sec. 4717.01. As used in this chapter:
(A) "Embalming" means the
preservation and disinfection, or
attempted preservation and
disinfection, of the dead human body by
application of chemicals
externally, internally, or both.
(B) "Funeral business" means a sole proprietorship,
partnership,
corporation, limited liability company, or other
business entity that is
engaged in funeral directing for profit or
for free from one or more funeral
homes licensed under this
chapter.
(C) "Funeral directing" means the
business or profession of
directing
or supervising funerals for profit, the arrangement or
sale of funeral services, the filling out or execution of a
funeral service contract, the business or
profession of preparing
dead human bodies for burial by means
other than
embalming, the
disposition of dead human bodies, the
provision or maintenance
of
a place for the preparation, the care,
or disposition of dead
human bodies,
the use in connection with a
business of the term
"funeral director,"
"undertaker,"
"mortician," or any other term
from which can be implied the
business of funeral directing, or
the holding out to the public
that one is a
funeral director or a
disposer of dead human bodies.
(D) "Funeral home" means a fixed
place for the care,
preparation for burial, or
disposition of
dead human bodies or the
conducting of funerals. Each business location is a
funeral home,
regardless of common ownership or management.
(E) "Embalmer" means a person who
engages, in whole or in
part, in embalming and who is licensed
under this chapter.
(F) "Funeral director" means a person
who engages, in whole
or in part, in funeral directing and who is
licensed under this
chapter.
(G) "Final disposition" has the same
meaning as in division
(J) of section 3705.01 of the
Revised Code.
(H) "Supervision" means the operation
of all phases of the
business of funeral directing or embalming
under the specific
direction of a licensed funeral director or
licensed embalmer.
(I) "Direct supervision" means the
physical presence of a
licensed funeral director or licensed
embalmer while the specific
functions of the funeral or embalming
are being carried out.
(J) "Embalming facility" means a
fixed location, separate
from the funeral home, that is licensed
under this chapter whose
only function is the embalming and
preparation of dead human
bodies.
(K) "Crematory facility" means the
physical location at which
a cremation chamber is located and the
cremation process takes
place. "Crematory facility" does not include an
infectious waste
incineration facility for which a license is held under
division
(B) of section 3734.05 of the
Revised Code, or a solid waste
incineration
facility for which a license is held under division
(A) of that
section that includes a notation pursuant to division
(B)(3) of that
section authorizing the facility to also treat
infectious wastes, in
connection with the incineration of body
parts other than dead human bodies
that were donated to science
for purposes of medical education or
research.
(L) "Crematory" means the building or
portion of a building
that houses the holding facility and the
cremation chamber.
(M) "Cremation" means the technical
process of using heat and
flame to reduce human or animal remains to bone
fragments or ashes
or any combination thereof. "Cremation" includes
processing and
may include the
pulverization of bone fragments.
(N) "Cremation chamber" means the enclosed space within which
cremation takes place.
(O) "Cremated remains" means all
human or animal remains
recovered after the completion of the cremation
process, which may
include the residue of any foreign matter such
as casket material,
dental work, or eyeglasses that were cremated
with the human or
animal remains.
(P) "Lapsed license" means a license
issued under this
chapter that has become invalid because of the
failure of the
licensee to renew the license within the time
limits prescribed
under this chapter.
(Q) "Operator of a crematory facility" means the sole
proprietorship, partnership, corporation, limited liability
company, or other
business entity responsible for the overall
operation of a crematory
facility.
(R) "Processing" means the reduction of identifiable bone
fragments to unidentifiable bone fragments through manual or
mechanical means
after the completion of the cremation process.
(S) "Pulverization" means the reduction of identifiable bone
fragments to granulated particles by manual or mechanical means
after the
completion of the cremation process.
(T) "Preneed funeral contract" means a written agreement,
contract, or series of contracts to sell or otherwise provide any
funeral services, funeral goods, or any
combination thereof to be
used in
connection with the funeral or final disposition of a
dead human
body, where payment for the goods or services is made
either
outright or on an installment basis, prior to the death of
the
person purchasing the goods or services or for whom the goods
or
services are purchased. "Preneed funeral contract" does not
include
any preneed cemetery merchandise and services contract or
any
agreement, contract, or series of contracts pertaining to the
sale
of any burial lot, burial or interment right, entombment
right, or
columbarium right with respect to which an endowment
care fund is
established or is exempt from establishment pursuant
to section
1721.21 of the Revised Code.
For the purposes of division (T) of this section, "funeral
goods" includes caskets.
(U) "Purchaser" means the individual who has purchased and
financed a preneed funeral contract, and who may or may not be the
contract beneficiary.
(V) "Contract beneficiary" means the individual for whom
funeral goods and funeral services are provided pursuant to a
preneed funeral contract.
(W) "Seller" means any person that enters into a preneed
funeral contract with a purchaser for the provision of funeral
goods, funeral services, or both.
Sec. 4717.03. (A) Members of the board of
embalmers and
funeral directors shall annually in July,
or within thirty days
after the senate's confirmation of the new
members appointed in
that year, meet and organize by selecting
from among its members a
president, vice-president, and secretary-treasurer.
The board may
hold other meetings as it determines necessary. A quorum of the
board consists of four members, of whom at least three shall be
members who are embalmers and funeral directors. The concurrence
of at least four members is necessary for the board to take any
action. The president and secretary-treasurer shall sign all
licenses
issued under this chapter and affix the board's seal to
each
license.
(B) The board may appoint an individual who is
not a member
of the board to serve as executive director of the
board. The
executive director serves at the pleasure of the
board and shall
do all of the following:
(1) Serve as the board's chief administrative officer;
(2) Act as custodian of the board's records;
(3) Execute all of the board's orders.
In executing the board's orders, the executive director
may
enter the premises, establishment, office, or place of
business of
any embalmer, funeral director, or operator of a crematory
facility in this state. The executive director may serve and
execute any
process issued by any court under this chapter.
(C) The board may employ clerical or technical
staff who are
not members of the board and who serve at the
pleasure of the
board to provide any clerical or technical
assistance the board
considers necessary. The board may employ
necessary inspectors,
who shall be licensed embalmers and funeral
directors. Any
inspector employed by the board may enter the
premises,
establishment, office, or place of business of any
embalmer,
funeral director, or operator of a crematory facility in this
state,
for the purposes of inspecting the facility and premises;
the
license and registration of embalmers and funeral directors
operating in the facility; and the license of the
funeral home,
embalming facility, or crematory. The inspector
shall serve and
execute any process issued by any court under
this chapter, serve
and execute any papers or process issued by
the board or any
officer or member of the board, and perform any
other duties
delegated by the board.
(D) The president of the board shall
designate three of its
members to serve on the crematory review board, which
is hereby
created, for such time as the president finds appropriate to carry
out the provisions of this chapter. Those members of the crematory
review
board designated by the president to serve and three
members designated by the
cemetery
dispute resolution commission
shall designate, by a majority vote, one person
who is experienced
in the operation of a crematory facility and who is not
affiliated
with a cemetery or a funeral home to serve on the crematory review
board for such time as the crematory review board finds
appropriate. Members
serving on the crematory review board shall
not receive any additional
compensation for serving on the board,
but may be reimbursed for their actual
and necessary expenses
incurred in the performance of official duties as
members of the
board. Members of the crematory review board
shall designate one
from among its members to serve as a chairperson for such
time as
the board finds appropriate. Costs associated with conducting an
adjudicatory hearing in accordance with division (E) of this
section
shall be paid from funds available to the board of
embalmers and funeral
directors.
(E) Upon receiving
written notice from the board of embalmers
and funeral directors
of any of the following, the crematory
review board shall
conduct an adjudicatory hearing on the matter
in accordance with
Chapter 119. of the Revised Code, except as
otherwise provided in this section or division
(C) of section
4717.14 of the
Revised Code:
(1) Notice provided under division (H) of this section of
an
alleged violation of any provision of this chapter or any
rules
adopted under this chapter, or section 1111.19
of
the
Revised
Code, governing or in
connection with crematory facilities or
cremation;
(2) Notice provided under division
(B) of section 4717.14 of
the Revised Code that
the board of embalmers and funeral
directors
proposes to refuse to grant or renew, or to suspend or revoke, a
license to operate a crematory facility;
(3) Notice provided under division (C) of section 4717.14
of
the Revised Code that the board of embalmers and funeral
directors
has issued an order summarily suspending a license to
operate a
crematory facility;
(4) Notice provided under division (B) of section 4717.15
of
the Revised Code that the board of embalmers and funeral
directors
proposes to issue a notice of violation and order
requiring
payment of a forfeiture for any violation described in
divisions
(A)(9)(a) to (g) of section
4717.04 of
the Revised Code alleged in
connection with
a crematory facility or cremation.
Nothing in division (E) of this section precludes the
crematory review board from appointing an independent examiner in
accordance
with section 119.09 of the Revised Code to conduct any
adjudication hearing required under division (E) of this section.
The crematory review board shall submit a written report
of
findings and advisory recommendations, and a written
transcript of
its proceedings, to the board of embalmers and
funeral directors.
The board of embalmers and funeral directors
shall serve a copy of
the written report of the crematory review
board's findings and
advisory recommendations on the party to
the adjudication or the
party's attorney, by certified mail,
within five days after
receiving the report and advisory
recommendations. A party may
file objections to the written
report with the board of embalmers
and funeral directors within
ten days after receiving the report.
No written report is
final or appealable until it is issued as a
final order by the
board of embalmers and funeral directors and
entered on the
record of the proceedings. The board of embalmers
and funeral
directors shall consider objections filed by the party
prior to
issuing a final order. After reviewing the findings and
advisory recommendations of the crematory review board, the
written transcript of the crematory review board's proceedings,
and any objections filed by a party, the board of embalmers and
funeral directors shall issue a final order in the matter. Any
party may appeal the final order issued by the board of
embalmers
and funeral directors in a matter described in
divisions (E)(1) to
(4) of this
section in accordance with section 119.12 of the
Revised Code, except that the appeal
may be made to the court of
common pleas in the county in which
is located the crematory
facility to which the final order
pertains, or in the county in
which the party resides.
(F) On its own initiative or on receiving a
written complaint
from any person whose identity is made known to
the board of
embalmers and funeral directors, the board shall investigate the
acts or practices of
any person holding or claiming to hold a
license or registration under this
chapter that, if proven to have
occurred, would violate this
chapter or any rules adopted under
it, or section
1111.19 of the
Revised Code. The board may compel
witnesses by
subpoena to appear and testify in relation to
investigations
conducted under this chapter and may require by
subpoena duces
tecum the production of any book, paper, or
document pertaining
to an investigation. If a person does not
comply with a
subpoena or subpoena duces tecum, the board may
apply to the
court of common pleas of any county in this state for
an order
compelling the person to comply with the subpoena or
subpoena
duces tecum, or for failure to do so, to be held in
contempt of
court.
(G) If, as a result of its investigation conducted under
division
(F) of this section, the board of embalmers and funeral
directors has
reasonable cause to believe that the person
investigated is
violating any provision of this chapter or any
rules adopted under
this
chapter, or section 1111.19 of the
Revised
Code, governing or in
connection with embalming, funeral
directing, funeral homes, embalming
facilities, or the operation
of funeral homes or embalming facilities, it may,
after providing
the opportunity for an adjudicatory hearing, issue an order
directing the person to
cease the acts or practices that
constitute the violation. The board shall
conduct the adjudicatory
hearing in accordance with
Chapter 119. of the Revised Code except
that, notwithstanding the provisions of that chapter, the
following shall apply:
(1) The board shall send the notice informing the
person of
the person's right to a hearing by certified mail.
(2) The person is entitled to a hearing only if the person
requests a hearing and if the board receives the request within
thirty days
after the mailing of the notice
described in division
(G)(1) of this section.
(3) A stenographic record shall be taken, in the manner
prescribed in section 119.09 of the Revised Code,
at every
adjudicatory hearing held under this section, regardless
of
whether the record may be the basis of an appeal to a court.
(H) If, as a result of
its investigation conducted under
division
(F) of this section, the board of embalmers and funeral
directors has
reasonable cause to believe that the person
investigated is
violating any provision of this chapter or any
rules adopted under
this chapter, or section 1111.19 of the
Revised
Code, governing or in
connection with crematory facilities
or cremation, the board
shall send written notice of the alleged
violation to the
crematory review board. If, after the conclusion
of the
adjudicatory hearing in the matter conducted under division
(E) of this section, the board
of embalmers and funeral directors
finds that a person is in
violation of any provision of this
chapter or any rules adopted
under this chapter, or section
1111.19 of the
Revised Code, governing or in
connection with
crematory facilities or cremation, the board may
issue a final
order under that division directing the person to
cease the acts
or practices that constitute the
violation.
(I) The board of embalmers and funeral directors may bring a
civil action to enjoin any violation or threatened violation of
section
1111.19; sections 4717.01 to 4717.15 of the Revised
Code
or a rule adopted under any of those
sections;
division (A) or (B)
of section 4717.23; division
(B)(1) or (2), (C)(1) or (2), (D),
(E), or
(F)(1) or (2), or divisions (H) to (K) of section
4717.26;
division (D)(1) of section 4717.27; or divisions
(A) to (C) of
section 4717.28, or division (D) or (E) of section 4717.31 of the
Revised
Code. The
action shall be brought in
the county where
the
violation occurred
or the threatened
violation is expected
to
occur. At the request
of the board, the
attorney general
shall
represent the board in
any matter arising
under this
chapter.
(J) The board of embalmers and funeral directors and the
crematory review board may issue subpoenas
for funeral directors
and embalmers or persons holding themselves out as
such, for
operators of crematory facilities or persons holding themselves
out
as such, or for any other person whose testimony, in the
opinion of
either board, is necessary. The subpoena shall require
the person
to appear before the appropriate board or any
designated member of either
board, upon any hearing conducted
under this chapter. The penalty for
disobedience to the command of
such a subpoena is the same as for
refusal to answer such a
process issued under authority of the
court of common pleas.
(K) All moneys received by the board of embalmers and funeral
directors from any source shall be deposited in the state treasury
to the
credit of the occupational licensing and regulatory fund
created in section
4743.05 of the Revised Code.
(L) The board of embalmers and funeral directors shall submit
a
written report to the governor on or before the first Monday of
July of each year. This report shall contain a detailed
statement
of the nature and amount of the board's receipts and
the amount
and manner of its expenditures.
Sec. 4717.13. (A) No person shall do any of
the following:
(1) Engage in the business or profession of funeral
directing
unless the person is licensed as a funeral director under this
chapter, is certified as an apprentice funeral director in
accordance with
rules adopted under section 4717.04 of
the Revised
Code and is assisting a funeral director
licensed under this
chapter, or is a student in a college of mortuary sciences
approved by the board and is under the direct supervision of a
funeral
director licensed by the board;
(2) Engage in embalming unless the person is licensed as an
embalmer under
this chapter, is certified as an apprentice
embalmer in accordance with rules
adopted under section 4717.04 of
the Revised Code and is assisting an embalmer
licensed under
this
chapter, or is a student in a college of
mortuary science approved
by the board and is under the
direct supervision of an embalmer
licensed by the board;
(3) Advertise or otherwise offer to provide or convey
the
impression that the person provides funeral directing services
unless the person is licensed as a funeral director under this
chapter
and is employed by or under contract to a licensed funeral
home
and performs funeral directing services for that funeral home
in
a manner consistent with the advertisement, offering, or
conveyance;
(4) Advertise or otherwise offer to provide or convey
the
impression that the person provides embalming services unless
the
person is licensed as an embalmer under this chapter and is
employed
by or under contract to a licensed funeral home or a
licensed
embalming facility and performs embalming services for
the
funeral home or embalming facility in a manner consistent with
the advertisement, offering, or conveyance;
(5) Operate a funeral home without a license to operate
the
funeral home issued by the board under this chapter;
(6) Practice the business or profession of funeral
directing
from any place except from a funeral home that a person
is
licensed to operate under this chapter;
(7) Practice embalming from any place except from a
funeral
home or embalming facility that a person is licensed to
operate
under this chapter;
(8) Operate a crematory or perform cremation without
a
license to operate the crematory issued under this chapter;
(9) Cremate animals in a cremation chamber in which dead
human bodies or
body parts are cremated or cremate dead human
bodies or human body parts in a
cremation chamber in which animals
are cremated.
(B) No funeral director
or other person in charge of the
final disposition of a dead
human body shall fail to do
one of the
following prior to the interment of the body:
(1) Affix to the ankle or wrist of the deceased a tag
encased
in a durable and long-lasting material that contains the
name,
date of birth, date of death, and social security number
of the
deceased;
(2) Place in the casket a capsule containing a tag bearing
the information
described in division (B)(1) of
this section;
(3) If the body was cremated, place in the vessel
containing
the cremated remains a tag bearing the information described in
division
(B)(1) of this section.
(C) No person who holds
a funeral home license for a funeral
home that is closed,
or that is owned by a funeral business in
which changes in the ownership of
the funeral business result in a
majority of the ownership of the funeral
business being held by
one or more persons who solely or in combination with
others did
not own a majority of the funeral business immediately prior to
the
change in ownership, shall fail to submit to the
board within
thirty days after the closing or such a change in
ownership of the
funeral business owning the funeral home, a clearly
enumerated
account of
all of the following from which the licensee, at the
time of the closing or
change in ownership of the funeral business
and in connection with the
funeral home, was to receive payment
for providing funeral
services, funeral goods, or any combination
of those in
connection with the funeral or final disposition of a
dead human
body:
(1) Preneed funeral contracts governed by section 1111.19
sections 4717.31 to 4717.38
of the Revised Code;
(2) Life insurance policies or annuities the benefits of
which are
payable
to the provider of funeral or burial goods or
services;
(3) Accounts at banks or savings banks insured by the
federal
deposit insurance corporation, savings and loan
associations
insured by the federal savings and loan insurance
corporation or
the Ohio deposit
guarantee fund, or credit unions insured by the
national credit
union administration or a credit union share
guaranty
corporation organized under Chapter 1761. of the Revised
Code that are payable upon the death of the person for whose
benefit
deposits into the accounts were made.
Sec. 4717.14. (A) The board of embalmers and funeral
directors
may refuse to grant or renew, or may suspend or revoke,
any license issued
under this chapter for any of the following
reasons:
(1) The license was obtained by fraud or
misrepresentation
either in the application or in passing the
examination.
(2) The applicant or licensee has been convicted of or
has
pleaded guilty to a felony or of any crime involving moral
turpitude.
(3) The applicant or licensee has
purposely violated any
provision of sections 4717.01 to 4717.15 or a rule
adopted under
any of those sections; division (A) or (B) of
section 4717.23;
division (B)(1) or (2), (C)(1) or (2),
(D), (E), or (F)(1) or (2),
or divisions
(H)
to (K) of section 4717.26; division (D)(1) of
section
4717.27; or divisions (A) to (C) of section 4717.28
of the
Revised Code; any rule or order of the
department of health or a
board of health
of a health district governing the disposition of
dead human bodies; or any
other rule or order applicable to the
applicant or licensee.
(4) The applicant or licensee has
committed immoral or
unprofessional conduct.
(5) The applicant or licensee knowingly permitted an
unlicensed person, other than a person serving an apprenticeship,
to engage in the profession or business of embalming or funeral
directing under the applicant's or licensee's supervision.
(6) The applicant or licensee has been
habitually
intoxicated, or is addicted to the use
of morphine, cocaine, or
other habit-forming or illegal drugs.
(7) The applicant or licensee has
refused to promptly submit
the custody of a
dead human body upon the express order of the
person legally
entitled to the body.
(8) The licensee loaned the licensee's own
license, or the
applicant or licensee
borrowed or used the license of another
person, or knowingly aided
or abetted the granting of an improper
license.
(9) The applicant or licensee transferred a license to
operate a funeral home, embalming facility, or crematory from one
owner or
operator to another, or
from one location to another,
without notifying the board.
(10) The applicant or licensee mislead the public by
using
false or deceptive advertising.
(B)(1) The board of embalmers and funeral directors shall
refuse
to grant or renew, or shall suspend or revoke, an
embalmer's, funeral
director's, funeral
home, or embalming
facility license only in accordance with
Chapter 119. of the
Revised Code.
(2) The board shall send to the crematory review board
written notice that
it proposes to refuse to issue or renew, or
proposes to suspend or revoke, a
license to operate a crematory
facility. If, after the conclusion of the
adjudicatory hearing on
the matter conducted under division (E) of
section 4717.03 of the
Revised Code, the board of embalmers
and funeral directors finds
that any of the circumstances described
in divisions (A)(1) to
(10) of
this section apply to the person named in its proposed
action,
the board may issue a final order under division
(E) of
section 4717.03 of the Revised
Code refusing to issue or
renew, or
suspending or revoking, the person's license to
operate a
crematory facility.
(C) If the board of embalmers and funeral directors
determines
that there is clear and convincing evidence that
any of
the circumstances described in divisions
(A)(1) to (10) of this
section
apply to the holder of a license issued under this chapter
and that the
licensee's continued practice presents a danger
of
immediate and serious harm to the public, the board may
suspend
the licensee's license without a prior adjudicatory
hearing. The
executive director of the board shall prepare
written allegations
for consideration by the board.
The board, after reviewing the written allegations, may
suspend a license without a prior hearing.
The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised
Code. Such an order is not
subject to suspension by
the court during the pendency of any
appeal filed under section
119.12 of the
Revised Code. If the holder of an embalmer's,
funeral
director's, funeral home, or embalming facility license
requests an
adjudicatory hearing by the board, the date set for
the hearing shall be
within fifteen days, but not earlier than
seven
days, after the licensee has requested a hearing, unless
the
board and the licensee agree to a different time for holding the
hearing.
Upon issuing a written order of suspension to the holder
of a
license to operate a crematory facility, the board of
embalmers
and funeral directors shall send written notice of the
issuance of
the order to the crematory review board. The
crematory review
board shall hold an adjudicatory hearing on the
order under
division (E) of section
4717.03
of the Revised Code within
fifteen
days,
but not earlier than seven days, after the
issuance
of the
order, unless the crematory review board and the licensee
agree to
a different time for holding the adjudicatory hearing.
Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicatory order issued by the board of embalmers and funeral
directors
pursuant to this division and Chapter 119. of the
Revised
Code, or division (E) of section 4717.03 of the Revised
Code, as
applicable, becomes effective. The board of embalmers
and
funeral directors
shall issue its final adjudicatory order
within
sixty days
after the completion of its hearing or, in the
case of
the summary suspension
of a license to operate a crematory
facility, within sixty days after
completion of the adjudicatory
hearing by the crematory review board. A
failure to issue the
order within that time results in the dissolution of the summary
suspension order, but does not invalidate any subsequent final
adjudicatory order.
(D) If the board of embalmers and funeral directors suspends
or revokes a license held by a funeral director or a funeral home
for any reason identified in division (A) of this section and the
board has clear and convincing evidence that the funeral home that
holds the suspended or revoked license or the licensed funeral
home that employs the funeral director that holds the suspended or
revoked license is insolvent or is unable to perform its
contractual obligation under the preneed funeral contracts to
which it is a party, the
board may file a complaint with the
court of common pleas in the
county where the funeral home is
located requesting appointment of a
receiver to operate or
liquidate such funeral home. If the court of common pleas is
satisfied with
the application for a receivership, the court may
appoint a
receiver.
The board or a receiver may employ and procure whatever
assistance or advice is necessary in the receivership or
liquidation and distribution of the assets of the funeral home,
and, for that purpose, may retain officers or employees of the
funeral home as needed. All expenses of the receivership or
liquidation shall be paid from the assets of the funeral home and
shall be a lien on those assets, and that lien shall be a priority
to any other lien.
(E) Any holder of a
license issued under this chapter who
has
pleaded guilty to, has
been found by a judge or jury to be
guilty
of, or has had a
judicial finding of eligibility for
treatment in
lieu of
conviction entered against the individual in
this state
for
aggravated murder, murder, voluntary manslaughter,
felonious
assault, kidnapping, rape, sexual battery, gross sexual
imposition, aggravated arson, aggravated robbery, or aggravated
burglary, or who has pleaded guilty to, has been found by a
judge
or jury to be guilty of, or has had a judicial finding of
eligibility for treatment in lieu of conviction entered against
the individual in another jurisdiction for any substantially
equivalent criminal offense, is hereby suspended from practice
under this chapter by operation of law, and any license issued
to
the individual under this chapter is hereby suspended by
operation
of law as of the date of the guilty plea, verdict or
finding of
guilt, or judicial finding of eligibility for
treatment in lieu of
conviction, regardless of whether the
proceedings are brought in
this state or another jurisdiction.
The board shall notify the
suspended individual of the
suspension of the individual's license
by the operation of this
division by certified mail or in person
in accordance with
section 119.07 of the Revised
Code. If an
individual whose
license is suspended under this division fails to
make a timely
request for an adjudicatory hearing, the board shall
enter a
final order revoking the license.
(E)(F) No person whose license has been suspended
or revoked
under or by the operation of this section shall practice embalming
or funeral directing or operate a funeral home, embalming
facility, or
crematory facility until
the board has reinstated the
person's license.
Sec. 4717.31. (A) Only a funeral director licensed pursuant
to this chapter may sell a preneed funeral contract that includes
funeral services. Sections 4717.31 to 4717.38 of the Revised Code
do not prohibit a person who is not a licensed funeral director
from selling funeral goods pursuant to a preneed funeral contract;
however, when a seller sells funeral goods pursuant to a preneed
funeral
contract, that seller shall comply with those sections
unless the seller is
specifically exempt from compliance under
section 4717.38 of the
Revised Code.
(B) An insurance agent licensed pursuant to Chapter 3905. of
the Revised Code may sell, solicit, or negotiate the sale of an
insurance policy or annuity that will be used to fund a preneed
funeral contract, but in so doing the insurance agent may not
offer advice or make recommendations about funeral services and
may not discuss the advantages or disadvantages of any funeral
service. In selling, soliciting, or negotiating the sale of an
insurance policy or annuity that will be used to fund a preneed
funeral contract, the insurance agent may do any of the following:
(1) Provide the person purchasing the insurance or annuity
with price lists from one or more funeral homes and other
materials that may assist the person in determining the cost of
funeral goods and services;
(2) Discuss the cost of funeral goods and services with the
person in order to assist the person in selecting the appropriate
amount of life insurance or annuity coverage;
(3) Complete a worksheet or other record to calculate the
estimated cost of a funeral.
(C) Activities conducted pursuant to division (B) of this
section by an insurance agent licensed pursuant to Chapter 3905.
of the Revised Code do not constitute funeral directing, funeral
arranging, the business of directing and supervising funerals for
profit, or the sale of a preneed funeral contract.
(D) No seller shall fail to
comply with the requirements and
duties specified in this section
and sections 4717.32 to 4717.38
of the Revised Code.
(E) No trustee of
a preneed funeral contract trust shall
fail to comply with
sections 4717.33, 4717.34, 4717.36, and
4717.37 of the Revised
Code.
(F) No insurance agent or insurance company that sells or
offers
life insurance policies or annuities used to fund a
preneed
funeral contract
shall fail to comply with this section
and
sections 4717.33, 4717.34, 4717.35, and
4717.37 of the
Revised
Code. To the extent this section and sections 4717.33,
4717.34,
4717.35, and 4717.37 of the Revised Code apply to
insurance
companies or insurance agents, those sections
constitute laws of
this state relating to insurance for purposes
of sections 3901.03
and 3901.04 of the Revised Code and the
superintendent of
insurance shall enforce those sections with
respect to insurance
companies and insurance agents. The
superintendent may adopt rules
in accordance with Chapter 119. of
the Revised Code for purposes
of administering and enforcing this
section and sections 4717.33,
4717.34, 4717.35, and 4717.37 of
the Revised Code as those
sections apply to insurance companies
or insurance agents.
(G) A preneed funeral contract may be funded by the purchase
or assignment of an insurance policy or annuity in accordance with
section
3905.45 of the Revised Code. A preneed funeral contract
that is
funded by the purchase or assignment of an insurance
policy or annuity in
accordance with section 3905.45 of the
Revised Code is not subject
to section 4717.36 of the Revised
Code.
(H) The board of embalmers and funeral directors shall
administer and enforce the provisions of sections 4717.31 to
4717.38 of the Revised Code concerning the
requirements for and
sale of preneed funeral contracts. The superintendent of insurance
shall enforce sections 4717.31, 4717.33, 4717.34, 4717.35, and
4717.37 of the Revised Code to the extent those sections apply to
insurance companies and insurance agents. Payments from a trust,
insurance policy, or annuity, including any
fraudulent activities
in which a person engages to obtain payments
from a trust,
insurance policy, or annuity, shall be regulated in accordance
with Chapter 1111. or Title XXXIX of the Revised Code, as
applicable.
(I) A seller of a preneed
funeral contract that is funded by
insurance or otherwise
annually shall submit to the board the
reports the board requires pursuant to division (J) of this
section.
(J) The board shall adopt rules specifying the procedures and
requirements for annual reporting of the sales of all preneed
funeral contracts sold by every seller who is subject to sections
4717.31 to 4717.38 of the Revised Code.
Sec. 4717.32. (A) Any preneed funeral contract that involves
the payment of money or the purchase or assignment of an insurance
policy or annuity shall be in writing and shall include all of the
following
information:
(1) The name, address, and phone number of the seller and the
name and address of the purchaser of the
contract, and, if the
contract beneficiary is someone other than
the purchaser of the
contract, the name and address of the
contract beneficiary, and
if the contract involves the payment of money but not the purchase
or assignment of an insurance policy or annuity, the social
security number of the purchaser of the contract or if the
contract beneficiary is someone other than the purchaser, the
social security number of the contract beneficiary;
(2) A statement of the funeral goods and funeral services
purchased, which disclosure may be made by attaching a copy of the
completed statement of funeral goods and services selected to the
preneed funeral contract;
(3) A disclosure informing the purchaser whether the contract
is either a guaranteed preneed funeral contract or a nonguaranteed
preneed funeral contract, and, if the contract is guaranteed only
in part, a disclosure specifying the funeral goods or funeral
services included in the guarantee;
(4) If the preneed funeral contract is a guaranteed contract,
a disclosure that the seller, in exchange for all of the proceeds
of the trust, insurance policy, or annuity, shall provide the
funeral goods
and funeral services set forth in the preneed
funeral contract
without regard to the actual cost of such
funeral goods and
funeral services prevailing at the time of
performance and that
the seller may receive any excess funds
remaining after
all expenses for the funeral have been
paid.
(5) If the preneed funeral contract is a nonguaranteed
contract, a disclosure that the proceeds of the trust, insurance
policy, or annuity shall be applied to the retail prices in effect
at the time
of the funeral for the funeral goods and funeral
services set
forth in the contract, that any excess funds
remaining after all expenses for the funeral have been paid shall
be paid to the estate of the decedent or the beneficiary named in
the life insurance policy if the preneed funeral contract is
funded by a life insurance policy, and that, in the event of
an
insufficiency
in funds, the seller shall not be required to
perform until
payment arrangements satisfactory to the seller
have been made.
(6) A disclosure that the purchaser has the right to make the
contract irrevocable and that if the preneed funeral contract is
irrevocable, the purchaser does not have a right to revoke the
contract;
(7) A disclosure informing the purchaser of the initial right
to cancel the preneed funeral contract within seven days as
provided in division (A) of section 4717.34 of the Revised Code
and the right to revoke a revocable preneed funeral contract in
accordance with section 4717.35 or division (E) of section 4717.36
of the Revised Code, as applicable;
(8) A disclosure that the seller may substitute funeral goods
or funeral services of equal quality, value, and workmanship if
those specified in the preneed funeral contract are unavailable at
the time of need;
(9) A disclosure that any purchaser of funeral goods and
funeral services is entitled to receive price information prior to
making that purchase in accordance with the federal trade
commission's funeral industry practices revised rule, 16 C.F.R.
part 453;
(10) The following notice in boldface print and in
substantially the following form:
"NOTICE: Under Ohio law, the person holding the right of
disposition of the remains of the individual contract beneficiary
pursuant to section 2108.70 or 2108.81 of the Revised Code will
have the right to make funeral arrangements inconsistent with the
arrangements set forth in this contract. However, the individual
contract beneficiary is encouraged to state his or her preferences
as to funeral arrangements in a declaration of the right of
disposition pursuant to section 2108.72 of the Revised Code,
including that the arrangements set forth in this contract shall
be followed."
(11) The notice described in division (A) of section 4717.34
of the Revised Code.
(B) If a preneed funeral contract is funded by any means
other than an insurance policy or policies, or an annuity or
annuities, the preneed funeral
contract shall include all of the
following information in
addition to the information required to
be included under division
(A) of this section:
(1) Disclosures identifying the name and address of the
trustee of the preneed funeral contract trust established pursuant
to section 4717.36 of the Revised Code, indicating whether fees,
expenses, or taxes will be deducted from the trust, and a
statement of who will be responsible for the taxes owed on the
trust earnings;
(2) A disclosure explaining the form in which the purchase
price must be paid and, if the price is to be paid in
installments, a disclosure to the purchaser regarding what
constitutes a default under the preneed funeral contract and the
consequences of the default;
(3) The following notice in boldface print and in
substantially the following form:
"NOTICE: You, as the purchaser of this contract, will be
notified in writing when the trustee of this contract has received
a deposit of the funds you paid the seller under this contract. If
you do not receive that notice within sixty days after the date
you paid the funds to the seller, you should contact the trustee
identified in the contract."
(4) A disclosure that a purchaser of a preneed funeral
contract that is irrevocable and that stipulates a firm or fixed
or guaranteed price for the funeral services and goods to be
provided under the preneed funeral contract may be charged a
transfer fee as specified in division (F) of section 4717.36 of
the Revised Code if the purchaser wishes to transfer the contract
to another seller.
(C) If a preneed funeral contract is funded by the purchase
or assignment of one or more insurance policies or annuities, the
preneed
funeral contract shall include all of the following
information in
addition to the information required to be
included under division
(A) of this section:
(1) The name and address of each applicable insurance company
and any right the purchaser has regarding canceling or
transferring the applicable insurance policies or annuities;
(2) A description of the terms of payment for any remaining
payments due if the funding is to be paid in installments;
(3) A list of actions that constitute default under a preneed
funeral contract and the consequences of a default;
(4) The following notice in boldface print and in
substantially the following form:
"NOTICE: You, as the purchaser of this contract, will be
notified in writing by the insurance company identified in this
contract when the insurance policy or policies, or annuity or
annuities, that will fund this
contract have been issued. If you
do not receive the notice within
sixty days after the date you
paid the funds to the seller, you
should contact the insurance
company identified in the contract."
(D) The seller of a preneed funeral contract that is funded
by the purchase or assignment of one or more insurance policies or
annuities
does not need to include in the contract the information
described
in divisions (C)(2) and (3) of this section if those
disclosures
are provided in the application for a life insurance
policy or annuity or in
the life insurance policy or annuity.
Sec. 4717.33. (A) If a preneed funeral contract is funded by
any means other than an insurance policy or policies, or an
annuity or annuities, the trustee
of the trust created pursuant
to section 4717.36 of the Revised
Code shall notify the purchaser
of the preneed funeral contract in
writing, within fifteen days
after the trustee receives any payment
to be deposited into the
trust, that the trustee has received
payment. The notice shall
include all of the following
information:
(1) The amount the trustee received;
(2) The name and address of the institution described in
division (B) of section 4717.36 of the Revised Code where the
trust is being held;
(3) The name of the beneficiary of that trust.
(B) If a preneed funeral contract is funded by the purchase
or assignment of one or more insurance policies or annuities, the
insurance
company shall notify the purchaser of the preneed
funeral contract
in writing within sixty days after the insurance
company receives
an initial premium payment applicable to that
preneed
funeral contract. The
notice shall include all of the
following
information that is
pertinent to that preneed funeral
contract:
(1) The amount the insurance company received;
(2) The name and address of the insurance company;
(3) The name of the insured;
(4) The amount of the death benefit;
(5) The policy or contract number of the insurance policy,
annuity, or
contract.
(C) For purposes of division (B) of this section, delivery of
an insurance policy, certificate, annuity, or contract to the
purchaser
shall satisfy the notice requirement specified in that
division.
Sec. 4717.34. (A) Any purchaser, on initially entering into
a preneed funeral contract may, within seven days after entering
into that contract, rescind the contract and request and receive
from the seller of the contract one hundred per cent of all
payments made under the contract. Each preneed funeral contract
shall contain the following notice in boldface print and in
substantially the following form:
"NOTICE: Under Ohio law, you, as the purchaser of this
contract, may rescind it and receive a refund of all payments you
made under the contract. To rescind the contract, you must notify
the seller within seven days of signing the contract."
(B) No preneed funeral contract shall contain a provision
that restricts the purchaser from making the contract irrevocable.
On the purchase by an individual of an irrevocable preneed funeral
contract, the funeral director who sold the contract assumes the
legal obligation to provide for the funeral of the individual
pursuant to the terms of the contract. No money deposited in a
trust fund for an irrevocable preneed funeral contract shall be
withdrawn to purchase an insurance policy or annuity, except that
a trustee may use money in the trust fund to purchase a life
insurance policy or annuity as an investment for the trust fund.
Sec. 4717.35. If a preneed funeral contract contains a
provision stating that the preneed funeral contract will be funded
by the purchase of an insurance policy, the insurance agent who
sold the policy that will fund that preneed funeral contract shall
remit the application for insurance and the premium paid to the
insurance company designated in the preneed funeral contract
within the time period specified in division (B)(15) of section
3905.14 of the Revised Code, unless the purchaser rescinds the
preneed funeral contract in accordance with division (A) of
section 4717.34 of the Revised Code.
If the purchaser of a preneed funeral contract that is
revocable and that is funded by an insurance policy or annuity
elects to
cancel the preneed funeral contract, the purchaser
shall provide a
written notice to the seller and
the insurance
company designated in the contract stating that the
purchaser
intends to cancel that contract. Fifteen days after the
purchaser
provides the notice to the seller of the contract and
the
insurance company, the purchaser may cancel the preneed
funeral
contract and change the beneficiary of the insurance
policy or
annuity or reassign the benefits under the policy or annuity.
The purchaser of a preneed funeral contract that is
irrevocable and that is funded by an insurance policy or annuity
may transfer
the preneed funeral contract to a successor seller
by notifying
the original seller of the designation of a
successor seller.
Within fifteen days after receiving the written
notice of the
designation of the successor seller from the
purchaser, the
original seller shall assign the seller's rights
to the proceeds of the policy to the successor seller. The
insurance company shall confirm the change of assignment by
providing written notice to the policyholder.
Sec. 4717.36. (A) This section applies only to preneed
funeral contracts that are funded by any means other than an
insurance policy or policies, or an annuity or annuities.
One hundred per cent of all payments for funeral goods and
funeral services made under a preneed funeral contract shall
remain intact and held in trust in accordance with this section
for the benefit of the contract beneficiary. No money in a preneed
funeral contract trust shall be distributed from the trust except
as provided in this section. Within thirty days after the provider
of the funeral goods or funeral services receives any payment
under a preneed funeral contract, the seller of the preneed
funeral contract shall deliver the moneys received for that
preneed funeral contract that have not been returned to the
purchaser as provided in division (A) of section 4717.34 of the
Revised Code to the trustee designated in the preneed funeral
contract.
(B) The seller shall establish
a preneed funeral contract
trust at one of the following types of
institutions and shall
designate that institution as the trustee
of the preneed funeral
contract trust:
(1) A trust company licensed under Chapter 1111. of the
Revised Code;
(2) A national bank, federal savings bank, or federal savings
association that
pledges securities in accordance with section
1111.04 of the
Revised Code;
(3) A credit union authorized to conduct business in this
state pursuant to Chapter 1733. of the Revised Code.
(C) Moneys deposited in a preneed funeral contract trust fund
shall be held and invested in the manner in which trust funds are
permitted to be held and invested pursuant to Chapter 1111. of the
Revised Code.
(D) The seller shall establish
a separate preneed funeral
contract trust for the moneys paid
under each preneed funeral
contract, unless the purchaser or
purchasers of a preneed funeral
contract or contracts authorize
the seller to place the moneys
paid for that contract or those
contracts in a combined preneed
funeral contract trust. The
trustee of a combined preneed funeral
contract trust shall keep
exact records of the corpus, income,
expenses, and disbursements
with regard to each purchaser and
contract beneficiary for whom
moneys are held in the trust. The
terms of a preneed funeral
contract trust are governed by this
section and the payments from
that trust are governed by Chapter
1111. of the Revised Code,
except as otherwise provided in this
section.
A trustee of a preneed funeral contract trust may pay taxes
and expenses for a preneed funeral contract trust and may charge a
fee for managing a preneed funeral contract trust. The fee shall
not exceed the amount regularly or usually charged for similar
services rendered by the institutions described in division (B) of
this section when serving as a trustee. The taxes, expenses, and
fees shall be paid only from the accumulated income on that trust.
(E) If the purchaser of a preneed funeral contract that is
revocable elects to cancel the contract, the purchaser shall
provide a written notice to the seller of the contract and the
trustee of the preneed funeral contract trust stating that the
purchaser intends to cancel the contract. Fifteen days after the
purchaser provides that notice to the seller and trustee, the
purchaser may cancel the contract. Upon canceling a preneed
funeral contract pursuant to this division,
one of the following
shall occur, as applicable:
(1) If the preneed funeral contract does not stipulate a firm
or fixed or guaranteed price for funeral goods and funeral
services to be provided under the preneed funeral contract, the
trustee shall give to the purchaser all of the assets of the trust
that exist at the time of
cancellation, less any fees charged,
distributions paid, and
expenses incurred by the trustee pursuant
to division (D) of this
section.
(2) If the preneed funeral contract does stipulate a firm or
fixed or guaranteed price for funeral goods and funeral services
to be provided under the contract, the purchaser may request and
receive from the trustee all of the assets of the trust at the
time of cancellation, less a cancellation fee that the original
seller may collect from the trustee that is equal to or less than
ten per cent of the value of the assets of the trust on the date
the trust is cancelled and less any fees
charged, distributions
paid, and expenses incurred by the trustee
pursuant to division
(D) of this section.
If more than one purchaser
enters into the contract, all of
those purchasers must request
cancellation of the contract for it
to be effective under this
division, and the trustee shall refund
to each purchaser only
those funds that purchaser has paid under
the contract and any
income earned on those funds in an amount
that is in direct
proportion to the amount of funds that
purchaser paid relative to
the total amount of payments deposited
in that trust, less any
fees charged, distributions paid, and
expenses incurred by the
trustee pursuant to division (D) of this
section, the amount of
which are in direct proportion to the
amount of funds that
purchaser paid relative to the total amount
of payments deposited
in that trust.
(F) The purchaser of a preneed funeral contract that is
irrevocable may transfer the preneed funeral contract to a
successor seller. A purchaser who elects to make such a transfer
shall provide a written notice of the designation of a successor
seller to the trustee and the original seller. Within fifteen days
after receiving the written notice of the new designation from the
purchaser, the trustee shall list the successor seller as the
seller of the preneed funeral contract and the original seller
shall relinquish and transfer all rights under the preneed funeral
contract to the successor seller. The trustee shall confirm the
transfer by providing written notice of the transfer to the
original seller, the successor seller, and the purchaser. If the
preneed funeral contract stipulates a firm or fixed or guaranteed
price for the funeral goods and funeral services to be provided
under the preneed funeral contract, the original seller may
collect from the trustee a transfer fee from the trust that equals
up to ten per cent of the value of the assets of the trust on the
date the trust is transferred. If the preneed funeral contract
does not stipulate a firm or fixed or guaranteed price for funeral
goods and funeral services to be provided under the preneed
funeral contract, no transfer fee shall be collected by the
original seller.
(G) If a seller of a preneed funeral contract elects to
transfer a preneed funeral contract trust from an institution
listed in divisions (B)(1) to (3) of this section to a different
institution, the trustee of the original trust shall notify the
purchaser of the preneed funeral contract of that transfer in
writing within thirty days after the transfer occurred and shall
provide the purchaser with the name of and the contact information
for the institution where the new trust is maintained. Upon
receipt of the trust, the trustee of the transferred trust shall
notify the purchaser of the receipt of the trusts in accordance
with division (A) of section 4717.33 of the Revised Code.
(H) If a seller receives a notice that the contract
beneficiary has died and that funeral goods and funeral services
have been provided by a provider other than the seller, except as
otherwise specified in this section, the seller shall direct the
trustee, within thirty days after receiving that notice, to pay to
the contract beneficiary all funds held by the trustee, less any
fees charged, distributions paid, and expenses incurred by the
trustee pursuant to division (D) of this section. In the event the
preneed funeral contract stipulates a firm or fixed or guaranteed
price for funeral goods and funeral services that were to be
provided under the preneed funeral contract, the seller may
collect from the trustee a cancellation fee not exceeding ten per
cent of the value of the assets of the trust on the date the trust
is transferred. If the preneed funeral trust does not stipulate a
firm or fixed or guaranteed price for funeral goods and funeral
services to be provided under the preneed funeral contract, no
cancellation fees shall be collected by the original seller.
(I) A certified copy of the certificate of death or other
evidence of death satisfactory to the trustee shall be furnished
to the trustee as evidence of death, and the trustee shall
promptly pay the accumulated payments and income, if any,
according to the preneed funeral contract. Such payment of the
accumulated payments and income pursuant to this section and, when
applicable, the preneed funeral contract, relieves the trustee of
any further liability on the accumulated payments and income.
Sec. 4717.37. For purposes of sections 4717.31 to 4717.38 of
the Revised Code, a seller is considered to have delivered funeral
goods pursuant to a preneed funeral contract when the seller makes
actual delivery of the goods to the contract beneficiary.
Sec. 4717.38. Sections 4717.31 to 4717.38 of the Revised
Code shall be construed as a limitation on the manner in which a
person is permitted to accept funds in prepayment for funeral
services to be performed in the future, or funeral goods to be
used in connection with the funeral or final disposition of human
remains, to the end that at all times members of the public may
have an opportunity to arrange and pay for a funeral for
themselves and their families in advance of need while at the same
time providing all possible safeguards to ensure that prepaid
funds cannot be dissipated, whether intentionally or not, but
remain available for payment for funeral goods and funeral
services in connection with the funeral or final disposition of
dead human bodies.
Sections 4717.31 to 4717.38 of the Revised Code do not apply
to a seller if that seller is an established and legally
cognizable church or denomination that is exempt from federal
income taxation under section 501(c)(3) of the "Internal Revenue
Code of 1986," 100 Stat. 2085, 26 U.S.C. 501, as amended, and the
preneed funeral contract pertains to a cemetery owned and operated
entirely and exclusively by the church or denomination, on the
condition that the church or denomination adopts, on a voluntary
basis, rules and other measures to safeguard and secure all funds
received under any preneed funeral contract.
Any money, insurance policies, annuities, or other items
delivered in
payment of a preneed funeral contract, and any funds
held in trust
pursuant to section 4717.36 of the Revised Code,
are exempt from
levy, attachment, or sale to satisfy a judgment
or order.
Sec. 4717.99. Whoever violates any provision of
sections
4717.01 to 4717.15; division (A) or (B) of
section 4717.23;
division (B)(1) or (2), (C)(1) or (2),
(D), (E), or (F)(1) or (2),
or divisions
(H) to (K) of section 4717.26; division (D)(1) of
section 4717.27; or divisions (A) to (C) of section 4717.28
of the
Revised Code shall be fined not less than one hundred nor more
than
five thousand dollars, or imprisoned for not more than one
year, or both, for
the first offense. For each subsequent
offense
such a person shall be fined not less than one hundred
nor more
than ten thousand dollars, or imprisoned for not more
than one
year, or both.
Whoever purposely violates division (D) or (E) of
section
4717.31 of
the Revised
Code is guilty of a misdemeanor
of the
third degree.
If the purpose of a violation of that
division is
to commit or
facilitate the commission of a felony,
whoever
violates that
division is guilty of a felony of the
fourth
degree.
Sec. 5747.02. (A) For the purpose of providing revenue for
the
support of schools and local government functions, to provide
relief to property taxpayers, to provide revenue for the general
revenue fund, and to meet the expenses of administering the tax
levied by this chapter, there is hereby levied on every
individual, trust,
and
estate residing in or earning or
receiving
income in
this state, on every individual, trust, and
estate
earning
or receiving
lottery winnings, prizes, or awards
pursuant
to
Chapter 3770. of
the Revised Code, and on every
individual,
trust, and estate
otherwise
having nexus with or in
this state
under the Constitution
of the
United States, an annual
tax
measured in the
case of individuals
by
Ohio adjusted gross income
less
an exemption for the
taxpayer, the
taxpayer's spouse, and
each
dependent as provided in section
5747.025 of the Revised
Code;
measured in the case of trusts by modified
Ohio taxable
income
under
division
(D) of this section; and measured in the
case of
estates
by
Ohio
taxable
income. The tax imposed by this
section on the
balance
thus obtained is
hereby levied as follows:
(1) For taxable years beginning in 2004:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.743% |
More than $5,000 but not more than $10,000 |
|
$37.15 plus 1.486% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$111.45 plus 2.972% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$260.05 plus 3.715% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$445.80 plus 4.457% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,337.20 plus 5.201% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$3,417.60 plus 5.943% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$4,606.20 plus 6.9% of the amount in excess of $100,000 |
More than $200,000 |
|
$11,506.20 plus 7.5% of the amount in excess of $200,000 |
(2) For taxable years beginning in 2005:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.712% |
More than $5,000 but not more than $10,000 |
|
$35.60 plus 1.424% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$106.80 plus 2.847% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$249.15 plus 3.559% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$427.10 plus 4.27% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,281.10 plus 4.983% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$3,274.30 plus 5.693% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$4,412.90 plus 6.61% of the amount in excess of $100,000 |
More than $200,000 |
|
$11,022.90 plus 7.185% of the amount in excess of $200,000 |
(3) For taxable years beginning in 2006:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.681% |
More than $5,000 but not more than $10,000 |
|
$34.05 plus 1.361% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$102.10 plus 2.722% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$238.20 plus 3.403% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$408.35 plus 4.083% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,224.95 plus 4.764% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$3,130.55 plus 5.444% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$4,219.35 plus 6.32% of the amount in excess of $100,000 |
More than $200,000 |
|
$10,539.35 plus 6.87% of the amount in excess of $200,000 |
(4) For taxable years beginning in 2007:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.649% |
More than $5,000 but not more than $10,000 |
|
$32.45 plus 1.299% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$97.40 plus 2.598% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$227.30 plus 3.247% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$389.65 plus 3.895% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,168.65 plus 4.546% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$2,987.05 plus 5.194% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$4,025.85 plus 6.031% of the amount in excess of $100,000 |
More than $200,000 |
|
$10,056.85 plus 6.555% of the amount in excess of $200,000 |
(5) For taxable years beginning in 2008:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.618% |
More than $5,000 but not more than $10,000 |
|
$30.90 plus 1.236% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$92.70 plus 2.473% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$216.35 plus 3.091% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$370.90 plus 3.708% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,112.50 plus 4.327% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$2,843.30 plus 4.945% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$3,832.30 plus 5.741% of the amount in excess of $100,000 |
More than $200,000 |
|
$9,573.30 plus 6.24% of the amount in excess of $200,000 |
(6) For taxable years beginning in 2009 or thereafter:
OHIO ADJUSTED GROSS INCOME LESS
EXEMPTIONS (INDIVIDUALS) |
|
OR |
|
MODIFIED
OHIO |
|
TAXABLE INCOME (TRUSTS) |
|
OR |
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
$5,000 or less |
|
.587% |
More than $5,000 but not more than $10,000 |
|
$29.35 plus 1.174% of the amount in excess of $5,000 |
More than $10,000 but not more than $15,000 |
|
$88.05 plus 2.348% of the amount in excess of $10,000 |
More than $15,000 but not more than $20,000 |
|
$205.45 plus 2.935% of the amount in excess of $15,000 |
More than $20,000 but not more than $40,000 |
|
$352.20 plus 3.521% of the amount in excess of $20,000 |
More than $40,000 but not more than $80,000 |
|
$1,056.40 plus 4.109% of the amount in excess of $40,000 |
More than $80,000 but not more than $100,000 |
|
$2,700.00 plus 4.695% of the amount in excess of $80,000 |
More than $100,000 but not more than $200,000 |
|
$3,639.00 plus 5.451% of the amount in excess of $100,000 |
More than $200,000 |
|
$9,090.00 plus 5.925% of the amount in excess of $200,000 |
In July of each year, beginning in 2010, the tax
commissioner
shall adjust the income amounts prescribed in this
division by
multiplying the percentage increase in the gross
domestic product
deflator computed that year under section
5747.025 of the Revised
Code by each of the income amounts
resulting from the adjustment
under this division in the preceding
year, adding the resulting
product to the corresponding income
amount resulting from the
adjustment in the preceding year, and
rounding the resulting sum
to the nearest multiple of fifty
dollars. The tax commissioner
also shall recompute each of the
tax dollar amounts to the extent
necessary to reflect the
adjustment of the income amounts. The
rates of taxation shall not
be adjusted.
The adjusted amounts apply to taxable years beginning in the
calendar year in which the adjustments are made. The tax
commissioner shall not make such adjustments in any year in which
the amount resulting from the adjustment would be less than the
amount resulting from the adjustment in the preceding year.
(B) If the director of budget and management makes a
certification to the tax commissioner under division (B)
of
section
131.44 of the Revised Code, the amount of tax as
determined under division (A)
of this section shall be reduced by
the percentage prescribed in that
certification for taxable years
beginning in the calendar year in which that
certification is
made.
(C) The levy of this tax on income does not prevent a
municipal
corporation, a joint economic development zone created
under section 715.691,
or a joint economic development district
created under
section 715.70 or 715.71 or sections 715.72 to
715.81 of the Revised Code from
levying a tax on income.
(D)
This division applies only
to taxable
years of a trust
beginning in 2002 or thereafter.
(1) The tax imposed by this section on a trust shall be
computed
by multiplying the
Ohio modified taxable income of the
trust
by the
rates prescribed by division (A) of this section.
(2) A credit is allowed against the tax computed under
division
(D) of this section equal to the lesser of (1) the tax
paid to
another state or the District of Columbia on
the trust's
modified nonbusiness
income, other than the portion of
the trust's
nonbusiness income that is qualifying investment
income as defined
in section 5747.012 of the Revised Code, or (2)
the effective tax
rate, based on
modified
Ohio taxable income,
multiplied by the
trust's modified nonbusiness
income
other than the portion of
trust's nonbusiness income that is
qualifying investment income.
The credit applies before any other
applicable credits.
(3) The credits enumerated in divisions (A)(1) to
(13) of
section 5747.98 of the Revised Code do not apply to a
trust
subject to this division.
Any credits enumerated in other
divisions of section 5747.98 of the Revised Code apply to a trust
subject to this division. To the extent that the trust
distributes
income for the taxable year for which a credit is
available to the
trust, the credit shall be shared by the trust
and its
beneficiaries. The tax commissioner and the trust shall
be guided
by applicable regulations of the United States treasury
regarding
the sharing of credits.
(E) For the purposes of this section, "trust" means any
trust
described in Subchapter J
of Chapter 1 of the Internal
Revenue
Code,
excluding
trusts that are not irrevocable as
defined in
division (I)(3)(b) of section 5747.01 of the Revised
Code and that
have no modified Ohio taxable income for the taxable
year,
charitable remainder trusts, qualified funeral trusts and preneed
funeral contract trusts established pursuant to section 1111.19
sections 4717.31 to 4717.38 of the Revised Code that are not
qualified funeral trusts,
endowment and perpetual care trusts,
qualified settlement trusts
and funds, designated settlement
trusts and funds, and trusts
exempted from taxation under section
501(a)
of
the Internal
Revenue Code.
Section 2. That existing sections 1151.345, 1161.59,
1721.211, 1733.51, 2108.81, 2117.251, 3103.03, 3901.04, 3905.451,
4717.01,
4717.03,
4717.13, 4717.14, 4717.99, and 5747.02 and
sections
1111.19 and
1111.99 of the Revised Code are hereby
repealed.
Section 3. Sections 1 and 2 of this act shall take effect
ninety days after the effective date of this act.
|
|