The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. H. B. No. 75 As Reported by the Senate Ways and Means and Economic Development CommitteeAs Reported by the Senate Ways and Means and Economic Development Committee
128th General Assembly | Regular Session | 2009-2010 |
| |
Representatives Chandler, Moran
Cosponsors:
Representatives Harwood, Harris, Fende, Williams, B., Dodd, Ujvagi, Evans, Okey, Williams, S., Newcomb, Gardner, Yates, Luckie, Yuko, Phillips, Patten, Stewart, Stebelton, Huffman, Hagan, Domenick, Skindell, Koziura, Brown, Gerberry, Lundy, Mallory, Sayre, Belcher, Daniels, Adams, J., Grossman, Hall, Hite, Adams, R., Bacon, Baker, Balderson, Beck, Blair, Blessing, Boose, Bubp, Carney, Celeste, Combs, DeBose, DeGeeter, Derickson, Dyer, Foley, Garland, Garrison, Hackett, Hottinger, Lehner, Letson, Maag, Mandel, Martin, Mecklenborg, Oelslager, Pillich, Pryor, Sears, Slesnick, Snitchler, Uecker, Winburn, Zehringer
Senators Schaffer, Schuring
A BILL
To amend sections 5747.113, 5751.08, and 5751.09 and
to enact sections 149.308 and 5502.23 of the
Revised Code to allow taxpayers to contribute a
portion of their income tax refunds to the Ohio
Historical Society and the American Red Cross Ohio
Disaster Readiness and Preparedness Fund, to
permanently authorize the Tax Commissioner to
refund erroneously made commercial activity tax
payments made by persons not required to pay the
tax, and to expressly permit consensual extensions
of the four-year time limit on assessments and
refund requests for the commercial activity tax.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5747.113, 5751.08, and 5751.09 be
amended and sections 149.308 and 5502.23 of the Revised Code be
enacted to read as follows:
Sec. 149.308. There is hereby created in the state treasury
the Ohio historical society income tax contribution fund, which
shall consist of money contributed to it under section 5747.113 of
the Revised Code and of contributions made directly to it. Any
person may contribute directly to the fund in addition to or
independently of the income tax refund contribution system
established in section 5747.113 of the Revised Code.
The Ohio historical society shall use money credited to the
fund in furtherance of the public functions with which the society
is charged under section 149.30 of the Revised Code.
Sec. 5502.23. (A) There is hereby created in the state
treasury the American red cross Ohio disaster response readiness
and preparedness fund, which shall consist of money transferred to
it under section 5747.113 of the Revised Code and of contributions
made directly to it. Any person may contribute directly to the
fund in addition to or independently of the income tax
contribution system established in section 5747.113 of the Revised
Code.
(B) Each year, the executive director of the state emergency
management agency created under section 5502.22 of the Revised
Code shall make one or more grants to the American red cross
greater Columbus chapter from money appropriated for that purpose
from the American red cross Ohio disaster response readiness and
preparedness fund, to be used by the American red cross chapters
in Ohio for planning, for the implementation of programs to assist
in disaster preparedness and response throughout this state, and
for the costs of administering those programs. The American red
cross greater Columbus chapter, on behalf of American red cross
chapters in Ohio, shall submit to the executive director its plan
for the use of any grants received under this section within sixty
days after the effective date of any section of law appropriating
money from the fund for the purpose of such grants.
(C) If the American red cross greater Columbus chapter ceases
to exist, the executive director shall use money in the American
red cross Ohio disaster response readiness and preparedness fund
to make grants to the American red cross to be used for disaster
preparedness, response, and planning throughout this state.
Sec. 5747.113. (A)(1) Any taxpayer claiming a refund under
section 5747.11 of the Revised Code for taxable years ending on or
after October 14, 1983, who wishes to contribute any part of the
taxpayer's refund to the natural areas and preserves fund created
in section 1517.11 of the Revised Code, the nongame and endangered
wildlife fund created in section 1531.26 of the Revised Code, the
military injury relief fund created in section 5101.98 of the
Revised Code, the Ohio historical society income tax contribution
fund created in section 149.308 of the Revised Code, or all of
those funds, may designate on the taxpayer's income tax return the
amount that the taxpayer wishes to contribute to the fund or
funds. A
(2) For taxable years beginning in 2010 or thereafter, a
taxpayer who wishes to contribute to the American red cross Ohio
disaster response readiness and preparedness fund created in
section 5502.23 of the Revised Code may do so by contributing any
part of the taxpayer's refund. A taxpayer shall designate on the
taxpayer's income tax return the amount the taxpayer wishes to
contribute to the fund, provided that the amount contributed shall
be at least one dollar. In no case shall a contribution under this
division operate to reduce the combined amount of the state and
school district income taxes shown to be due on a taxpayer's
annual return.
(3) A designated contribution of any part of a refund is
irrevocable upon the filing of the return and shall be made in the
full amount designated if the refund found due the taxpayer upon
the initial processing of the taxpayer's return, after any
deductions including those required by section 5747.12 of the
Revised Code, is greater than or equal to the designated
contribution. If the refund due as initially determined is less
than the designated contribution, the contribution shall be made
in the full amount of the refund. The tax commissioner shall
subtract the amount of the contribution from the amount of the
refund initially found due the taxpayer and shall certify the
difference to the director of budget and management and treasurer
of state for payment to the taxpayer in accordance with section
5747.11 of the Revised Code. For the purpose of any subsequent
determination of the taxpayer's net tax payment, the contribution
shall be considered a part of the refund paid to the taxpayer.
(B) The tax commissioner shall provide a space on the income
tax return form in which a taxpayer may indicate that the taxpayer
wishes to make a donation in accordance with this section. The tax
commissioner shall also print in the instructions accompanying the
income tax return form a description of the purposes for which the
natural areas and preserves fund, the nongame and endangered
wildlife fund, and the military injury relief fund, the American
red cross Ohio disaster response readiness and preparedness fund,
and the Ohio historical society income tax contribution fund were
created and the use of moneys from the income tax refund
contribution system established in this section. No person shall
designate on the person's income tax return any part of a refund
claimed under section 5747.11 of the Revised Code as a
contribution to any fund other than the natural areas and
preserves fund, the nongame and endangered wildlife fund, the
military injury relief fund, the American red cross Ohio disaster
response readiness and preparedness fund, or all of those funds
the Ohio historical society income tax contribution fund.
(C) The money collected under the income tax refund
contribution system established in this section shall be deposited
by the tax commissioner into the natural areas and preserves fund,
the nongame and endangered wildlife fund, and the military injury
relief fund, the American red cross Ohio disaster response
readiness and preparedness fund, and the Ohio historical society
income tax contribution fund in the amounts designated on the tax
returns.
(D) No later than the thirtieth day of September each year,
the tax commissioner shall determine the total amount contributed
to each fund under this section during the preceding eight months,
any adjustments to prior months, and the cost to the department of
taxation of administering the income tax refund contribution
system during that eight-month period. The commissioner shall make
an additional determination no later than the thirty-first day of
January of each year of the total amount contributed to each fund
under this section during the preceding four calendar months, any
adjustments to prior years made during that four-month period, and
the cost to the department of taxation of administering the income
tax contribution system during that period. The cost of
administering the income tax contribution system shall be
certified by the tax commissioner to the director of budget and
management, who shall transfer an amount equal to one-third
one-fifth of such administrative costs from the natural areas and
preserves fund, one-third of such costs from the nongame and
endangered wildlife fund, and one-third of such costs from the
military injury relief fund each of the five funds to the litter
control and natural resource tax administration income tax refund
contribution fund, which is hereby created, provided that the
moneys that the department receives to pay the cost of
administering the income tax refund contribution system in any
year shall not exceed two and one-half per cent of the total
amount contributed under that system during that year.
(E)(1) The director of natural resources, in January of every
odd-numbered year, shall report to the general assembly on the
effectiveness of the income tax refund contribution system as it
pertains to the natural areas and preserves fund and the nongame
and endangered wildlife fund. The report shall include the amount
of money contributed to each fund in each of the previous five
years, the amount of money contributed directly to each fund in
addition to or independently of the income tax refund contribution
system in each of the previous five years, and the purposes for
which the money was expended.
(2) The director of job and family services and the director
of the Ohio historical society, in January of every odd-numbered
year, each shall report to the general assembly on the
effectiveness of the income tax refund contribution system as it
pertains to the military injury relief fund and the Ohio
historical society income tax contribution fund, respectively. The
report shall include the amount of money contributed to the fund
in each of the previous five years, the amount of money
contributed directly to the fund in addition to or independently
of the income tax refund contribution system in each of the
previous five years, and the purposes for which the money was
expended
(3) In January of every odd-numbered year, beginning January
2012, the executive director of the state emergency management
agency created under section 5502.22 of the Revised Code shall
report to the general assembly on the effectiveness of the income
tax refund contribution system as it pertains to the American red
cross Ohio disaster response readiness and preparedness fund.
(4) Each report made under division (E) of this section also
shall include the amount of money contributed to each fund in each
of the previous five years, the amount of money contributed
directly to each fund in addition to or independently of the
income tax refund contribution system in each of the previous five
years, and the purposes for which the money in each fund was
expended.
Sec. 5751.08. (A) An application for refund to the taxpayer
of the amount of taxes imposed under this chapter that are
overpaid, paid illegally or erroneously, or paid on any illegal or
erroneous assessment shall be filed by the reporting person with
the tax commissioner, on the form prescribed by the commissioner,
within four years after the date of the illegal or erroneous
payment of the tax, or within any additional period allowed under
division (F) of section 5751.09 of the Revised Code. The applicant
shall provide the amount of the requested refund along with the
claimed reasons for, and documentation to support, the issuance of
a refund.
(B) On the filing of the refund application, the tax
commissioner shall determine the amount of refund to which the
applicant is entitled. If the amount is not less than that
claimed, the commissioner shall certify the amount to the director
of budget and management and treasurer of state for payment from
the tax refund fund created under section 5703.052 of the Revised
Code. If the amount is less than that claimed, the commissioner
shall proceed in accordance with section 5703.70 of the Revised
Code.
(C) Interest on a refund applied for under this section,
computed at the rate provided for in section 5703.47 of the
Revised Code, shall be allowed from the later of the date the tax
was paid or when the tax payment was due.
(D) A calendar quarter taxpayer with more than one million
dollars in taxable gross receipts in a calendar year other than
calendar year 2005 and that is not able to exclude one million
dollars in taxable gross receipts because of the operation of the
taxpayer's business in that calendar year may file for a refund
under this section to obtain the full exclusion of one million
dollars in taxable gross receipts for that calendar year.
(E) No person with an active registration as a taxpayer under
this chapter may claim a refund under this section for the tax
imposed under division (B) of section 5751.03 of the Revised Code
unless the person cancelled the registration before the tenth day
of May of the current calendar year pursuant to division (D) of
section 5751.04 of the Revised Code.
(F) Except as provided in section 5751.091 5751.081 of the
Revised Code, the tax commissioner may, with the consent of the
taxpayer, provide for the crediting against tax due for a tax year
the amount of any refund due the taxpayer under this chapter for a
preceding tax year.
Sec. 5751.09. (A) The tax commissioner may make an
assessment, based on any information in the commissioner's
possession, against any person that fails to file a return or pay
any tax as required by this chapter. The commissioner shall give
the person assessed written notice of the assessment as provided
in section 5703.37 of the Revised Code. With the notice, the
commissioner shall provide instructions on the manner in which to
petition for reassessment and request a hearing with respect to
the petition. The commissioner shall send any assessments against
consolidated elected taxpayer and combined taxpayer groups under
section 5751.011 or 5751.012 of the Revised Code to the taxpayer's
"reporting person" as defined under division (R) of section
5751.01 of the Revised Code. The reporting person shall notify all
members of the group of the assessment and all outstanding taxes,
interest, and penalties for which the assessment is issued.
(B) Unless the person assessed, within sixty days after
service of the notice of assessment, files with the tax
commissioner, either personally or by certified mail, a written
petition signed by the person or the person's authorized agent
having knowledge of the facts, the assessment becomes final, and
the amount of the assessment is due and payable from the person
assessed to the treasurer of state. The petition shall indicate
the objections of the person assessed, but additional objections
may be raised in writing if received by the commissioner prior to
the date shown on the final determination.
If a petition for reassessment has been properly filed, the
commissioner shall proceed under section 5703.60 of the Revised
Code.
(C)(1) After an assessment becomes final, if any portion of
the assessment, including accrued interest, remains unpaid, a
certified copy of the tax commissioner's entry making the
assessment final may be filed in the office of the clerk of the
court of common pleas in the county in which the person resides or
has its principal place of business in this state, or in the
office of the clerk of court of common pleas of Franklin county.
(2) Immediately upon the filing of the entry, the clerk shall
enter judgment for the state against the person assessed in the
amount shown on the entry. The judgment may be filed by the clerk
in a loose-leaf book entitled, "special judgments for the
commercial activity tax" and shall have the same effect as other
judgments. Execution shall issue upon the judgment at the request
of the tax commissioner, and all laws applicable to sales on
execution shall apply to sales made under the judgment.
(3) The portion of the assessment not paid within sixty days
after the day the assessment was issued shall bear interest at the
rate per annum prescribed by section 5703.47 of the Revised Code
from the day the tax commissioner issues the assessment until it
is paid. Interest shall be paid in the same manner as the tax and
may be collected by the issuance of an assessment under this
section.
(D) If the tax commissioner believes that collection of the
tax will be jeopardized unless proceedings to collect or secure
collection of the tax are instituted without delay, the
commissioner may issue a jeopardy assessment against the person
liable for the tax. Immediately upon the issuance of the jeopardy
assessment, the commissioner shall file an entry with the clerk of
the court of common pleas in the manner prescribed by division (C)
of this section. Notice of the jeopardy assessment shall be served
on the person assessed or the person's authorized agent in the
manner provided in section 5703.37 of the Revised Code within five
days of the filing of the entry with the clerk. The total amount
assessed is immediately due and payable, unless the person
assessed files a petition for reassessment in accordance with
division (B) of this section and provides security in a form
satisfactory to the commissioner and in an amount sufficient to
satisfy the unpaid balance of the assessment. Full or partial
payment of the assessment does not prejudice the commissioner's
consideration of the petition for reassessment.
(E) The tax commissioner shall immediately forward to the
treasurer of state all amounts the commissioner receives under
this section, and such amounts shall be considered as revenue
arising from the tax imposed under this chapter.
(F) Except as otherwise provided in this division, no
assessment shall be made or issued against a taxpayer for the tax
imposed under this chapter more than four years after the due date
for the filing of the return for the tax period for which the tax
was reported, or more than four years after the return for the tax
period was filed, whichever is later. The time limit may be
extended if both the taxpayer and the commissioner consent in
writing to the extension or enter into an agreement waiving or
extending the time limit. Any such extension shall extend the
four-year time limit in division (B) of section 5751.08 of the
Revised Code for the same period of time. Nothing in this division
bars an assessment against a taxpayer that fails to file a return
required by this chapter or that files a fraudulent return.
(G) If the tax commissioner possesses information that
indicates that the amount of tax a taxpayer is required to pay
under this chapter exceeds the amount the taxpayer paid, the tax
commissioner may audit a sample of the taxpayer's gross receipts
over a representative period of time to ascertain the amount of
tax due, and may issue an assessment based on the audit. The tax
commissioner shall make a good faith effort to reach agreement
with the taxpayer in selecting a representative sample. The tax
commissioner may apply a sampling method only if the commissioner
has prescribed the method by rule.
(H) If the whereabouts of a person subject to this chapter is
not known to the tax commissioner, the commissioner shall follow
the procedures under section 5703.37 of the Revised Code.
Section 2. That existing sections 5747.113, 5751.08, and
5751.09 of the Revised Code are hereby repealed.
Section 3. The amendment by this act of section 5747.113 of
the Revised Code applies to taxable years beginning on or after
January 1, 2010.
Section 4. A person may request a refund of the annual
minimum commercial activity tax paid for calendar year 2007, 2008,
or 2009 under Chapter 5751. of the Revised Code if the person
satisfies both of the following:
(A) The person was not subject to the tax for 2007, 2008, or
2009 because the person was an excluded person under division
(E)(1) of section 5751.01 of the Revised Code.
(B) The person erroneously registered for the tax and failed
to cancel the registration before the tenth day of February of the
calendar year for which the tax was paid.
|