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(128th General Assembly)
(Substitute Senate Bill Number 106)
AN ACT
To amend sections 2101.16, 2107.76, 2109.21, 2111.05,
2111.18, 2125.04,
2305.19, 5747.01, and 5815.31
of the Revised Code
to
exclude from the
application of the savings
statute certain estate
and trust proceedings that
have limitation
periods, to raise the threshold
amount for the
termination or avoidance of
guardianships of
small estates of wards, to raise
the threshold
amount for the avoidance of
guardianship upon the
settlement of claims of
minors or adult
incompetents, to clarify that
termination of
marriage revokes any trust
provision conferring a
beneficial interest on the
former spouse, to
modify the period within which a plaintiff in a
wrongful death
action may commence a new action
after the reversal of a judgment
for the
plaintiff
or the plaintiff's failure otherwise
than upon
the
merits, and to
modify the
residency qualifications for a person's
appointment as
a guardian.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2101.16, 2107.76, 2109.21, 2111.05,
2111.18, 2125.04,
2305.19, 5747.01, and 5815.31 of the Revised
Code be amended to
read as
follows:
Sec. 2101.16. (A) Except as provided in section 2101.164
of
the Revised Code, the fees enumerated in this division
shall be
charged and collected, if possible, by the probate judge
and shall
be in full for all services rendered in the respective
proceedings:
(1) |
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Account, in addition to advertising charges |
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$ |
12.00 |
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Waivers and proof of notice of hearing on account, per page, minimum one dollar |
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$ |
1.00 |
(2) |
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Account of distribution, in addition to advertising charges |
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$ |
7.00 |
(3) |
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Adoption of child, petition for |
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$ |
50.00 |
(4) |
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Alter or cancel contract for sale or purchase of real estate, petition to |
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$ |
20.00 |
(5) |
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Application and order not otherwise provided for in this section or by rule adopted pursuant to division (E) of this section |
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$ |
5.00 |
(6) |
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Appropriation suit, per day, hearing in |
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$ |
20.00 |
(7) |
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Birth, application for registration of |
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$ |
7.00 |
(8) |
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Birth record, application to correct |
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$ |
5.00 |
(9) |
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Bond, application for new or additional |
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$ |
5.00 |
(10) |
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Bond, application for release of surety or reduction of |
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$ |
5.00 |
(11) |
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Bond, receipt for securities deposited in lieu of |
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$ |
5.00 |
(12) |
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Certified copy of journal entry, record, or proceeding, per page, minimum fee one dollar |
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$ |
1.00 |
(13) |
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Citation and issuing citation, application for |
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$ |
5.00 |
(14) |
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Change of name, petition for |
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$ |
20.00 |
(15) |
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Claim, application of administrator or executor for allowance of administrator's or executor's own |
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$ |
10.00 |
(16) |
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Claim, application to compromise or settle |
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$ |
10.00 |
(17) |
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Claim, authority to present |
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$ |
10.00 |
(18) |
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Commissioner, appointment of |
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$ |
5.00 |
(19) |
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Compensation for extraordinary services and attorney's fees for fiduciary, application for |
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$ |
5.00 |
(20) |
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Competency, application to procure adjudication of |
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$ |
20.00 |
(21) |
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Complete contract, application to |
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$ |
10.00 |
(22) |
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Concealment of assets, citation for |
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$ |
10.00 |
(23) |
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Construction of will, petition for |
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$ |
20.00 |
(24) |
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Continue decedent's business, application to |
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$ |
10.00 |
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Monthly reports of operation |
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$ |
5.00 |
(25) |
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Declaratory judgment, petition for |
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$ |
20.00 |
(26) |
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Deposit of will |
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$ |
5.00 |
(27) |
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Designation of heir |
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$ |
20.00 |
(28) |
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Distribution in kind, application, assent, and order for |
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$ |
5.00 |
(29) |
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Distribution under section 2109.36 of the Revised Code, application for an order of |
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$ |
7.00 |
(30) |
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Docketing and indexing proceedings, including the filing and noting of all necessary documents, maximum fee, fifteen dollars |
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$ |
15.00 |
(31) |
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Exceptions to any proceeding named in this section, contest of appointment or |
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$ |
10.00 |
(32) |
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Election of surviving partner to purchase assets of partnership, proceedings relating to |
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$ |
10.00 |
(33) |
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Election of surviving spouse under will |
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$ |
5.00 |
(34) |
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Fiduciary, including an assignee or trustee of an insolvent debtor or any guardian or conservator accountable to the probate court, appointment of |
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$ |
35.00 |
(35) |
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Foreign will, application to record |
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$ |
10.00 |
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Record of foreign will, additional, per page |
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$ |
1.00 |
(36) |
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Forms when supplied by the probate court, not to exceed |
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$ |
10.00 |
(37) |
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Heirship, petition to determine |
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$ |
20.00 |
(38) |
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Injunction proceedings |
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$ |
20.00 |
(39) |
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Improve real estate, petition to |
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$ |
20.00 |
(40) |
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Inventory with appraisement |
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$ |
10.00 |
(41) |
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Inventory without appraisement |
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$ |
7.00 |
(42) |
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Investment or expenditure of funds, application for |
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$ |
10.00 |
(43) |
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Invest in real estate, application to |
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$ |
10.00 |
(44) |
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Lease for oil, gas, coal, or other mineral, petition to |
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$ |
20.00 |
(45) |
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Lease or lease and improve real estate, petition to |
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$ |
20.00 |
(46) |
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Marriage license |
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$ |
10.00 |
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Certified abstract of each marriage |
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$ |
2.00 |
(47) |
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Minor or mentally ill incompetent person, etc., disposal of estate under ten twenty-five thousand dollars of |
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$ |
10.00 |
(48) |
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Mortgage or mortgage and repair or improve real estate, petition to |
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$ |
20.00 |
(49) |
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Newly discovered assets, report of |
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$ |
7.00 |
(50) |
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Nonresident executor or administrator to bar creditors' claims, proceedings by |
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$ |
20.00 |
(51) |
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Power of attorney or revocation of power, bonding company |
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$ |
10.00 |
(52) |
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Presumption of death, petition to establish |
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$ |
20.00 |
(53) |
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Probating will |
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$ |
15.00 |
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Proof of notice to beneficiaries |
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$ |
5.00 |
(54) |
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Purchase personal property, application of surviving spouse to |
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$ |
10.00 |
(55) |
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Purchase real estate at appraised value, petition of surviving spouse to |
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$ |
20.00 |
(56) |
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Receipts in addition to advertising charges, application and order to record |
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$ |
5.00 |
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Record of those receipts, additional, per page |
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$ |
1.00 |
(57) |
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Record in excess of fifteen hundred words in any proceeding in the probate court, per page |
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$ |
1.00 |
(58) |
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Release of estate by mortgagee or other lienholder |
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$ |
5.00 |
(59) |
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Relieving an estate from administration under section 2113.03 of the Revised Code or granting an order for a summary release from administration under section 2113.031 of the Revised Code |
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$ |
60.00 |
(60) |
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Removal of fiduciary, application for |
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$ |
10.00 |
(61) |
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Requalification of executor or administrator |
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$ |
10.00 |
(62) |
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Resignation of fiduciary |
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$ |
5.00 |
(63) |
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Sale bill, public sale of personal property |
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$ |
10.00 |
(64) |
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Sale of personal property and report, application for |
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$ |
10.00 |
(65) |
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Sale of real estate, petition for |
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$ |
25.00 |
(66) |
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Terminate guardianship, petition to |
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$ |
10.00 |
(67) |
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Transfer of real estate, application, entry, and certificate for |
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$ |
7.00 |
(68) |
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Unclaimed money, application to invest |
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$ |
7.00 |
(69) |
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Vacate approval of account or order of distribution, motion to |
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$ |
10.00 |
(70) |
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Writ of execution |
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$ |
5.00 |
(71) |
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Writ of possession |
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$ |
5.00 |
(72) |
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Wrongful death, application and settlement of claim for |
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$ |
20.00 |
(73) |
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Year's allowance, petition to review |
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$ |
7.00 |
(74) |
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Guardian's report, filing and review of |
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$ |
5.00 |
(B)(1) In relation to an application for the appointment of a
guardian or the review of a report of a guardian under section
2111.49 of the Revised Code, the probate court, pursuant to court
order or in accordance with a court rule, may direct that the
applicant or the estate pay any or all of the expenses of an
investigation conducted pursuant to section 2111.041 or division
(A)(2) of section 2111.49 of the Revised Code. If the
investigation is conducted by a public employee or investigator
who is paid by the county, the fees for the investigation shall
be
paid into the county treasury. If the court finds that an
alleged
incompetent or a ward is indigent, the court may waive
the costs,
fees, and expenses of an investigation.
(2) In relation to the appointment or functioning of a
guardian for a minor or
the guardianship of a minor, the probate
court may direct that the applicant
or
the estate pay any or all
of the expenses of an investigation conducted
pursuant to section
2111.042 of the Revised Code. If the investigation is
conducted by
a public employee or investigator who is paid by the county, the
fees for the investigation shall be paid into the county treasury.
If the
court finds that the guardian or applicant is indigent, the
court may waive
the
costs, fees, and expenses of an investigation.
(C) Thirty dollars of the thirty-five-dollar fee collected
pursuant to division (A)(34) of this section and twenty dollars
of
the sixty-dollar fee collected pursuant to division
(A)(59) of
this section shall be deposited by the county
treasurer in the
indigent guardianship fund created pursuant to
section 2111.51 of
the Revised Code.
(D) The fees of witnesses, jurors, sheriffs, coroners, and
constables for services rendered in the probate court or by order
of the probate judge shall be the same as provided for like
services in the court of common pleas.
(E) The probate court, by rule, may require an advance
deposit for costs, not to exceed one hundred twenty-five dollars,
at the time application is made for an appointment as executor or
administrator or at the time a will is presented for probate.
(F) The probate court, by rule, shall establish a
reasonable
fee, not to exceed fifty dollars, for the filing of a
petition for
the release of information regarding an adopted
person's name by
birth and the identity of the adopted
person's biological parents
and biological siblings pursuant to section
3107.41 of the
Revised
Code, all proceedings relative to the petition, the entry
of an
order relative to the petition, and all services required
to be
performed in connection with the petition. The probate
court may
use a reasonable portion of a fee charged under
authority of this
division to reimburse any agency, as defined in
section 3107.39 of
the Revised Code, for any services it renders
in performing a task
described in section 3107.41 of the Revised
Code relative to or in
connection with the petition for which the
fee was charged.
(G)(1) Thirty dollars of the fifty-dollar fee collected
pursuant to division
(A)(3) of this section shall be deposited
into the "putative father registry
fund," which is hereby created
in the state treasury. The department of job
and family
services
shall use the money in the fund to fund the department's costs of
performing its duties related to the putative father registry
established
under section 3107.062 of the Revised Code.
(2) If the department determines that money in the putative
father registry fund is more than is needed for its duties related
to the putative father registry, the department may use the
surplus moneys in the fund as permitted in division (C) of section
2151.3529, division (B) of section 2151.3530, or section 5103.155
of the Revised Code.
Sec. 2107.76. (A) No person
who has received or waived the
right
to receive
the
notice of the admission of a will to probate
required by section 2107.19 of
the Revised Code may commence an
action permitted by section 2107.71 of
the
Revised Code to contest
the validity of the will more than
three months
after
the
filing
of
the certificate described in division (A)(3)
of section
2107.19
of
the Revised Code. No other person may commence an action
permitted by section 2107.71 of the Revised Code to contest the
validity of the will more than three months after the initial
filing of a certificate described in division (A)(3) of section
2107.19 of the Revised Code.
A person under any
legal disability
nevertheless may commence an action permitted by
section
2107.71
of the Revised Code to contest the validity of the
will within
three months after the disability is removed, but the
rights
saved
shall not affect
the rights of a purchaser, lessee,
or
encumbrancer for value in good faith and
shall not impose any
liability upon a fiduciary who has acted in good faith,
or upon a
person delivering or transferring property to any other person
under
authority of a will, whether or not the purchaser, lessee,
encumbrancer,
fiduciary, or other person had actual or
constructive notice of the legal
disability.
(B) Section 2305.19 of the Revised Code does not apply to an
action permitted by section 2107.71 of the Revised Code to contest
the validity of a will.
Sec. 2109.21. (A) An administrator, special
administrator,
administrator de bonis non, or administrator with
the will annexed
shall be a resident of this state and shall be
removed on proof
that the administrator is no longer a resident of
this state.
(B)(1) To qualify for appointment as executor or trustee,
an
executor or a trustee named in a will or nominated in
accordance
with any power of nomination conferred in a will, may
be a
resident of this state or, as provided in this division, a
nonresident of this state. To qualify for appointment, a
nonresident executor or trustee named in, or nominated pursuant
to, a will shall be an individual who is related to the maker of
the will by consanguinity or affinity, or a person who resides in
a state that has statutes or rules that authorize the appointment
of a nonresident person who is not related to the maker of a will
by consanguinity or affinity, as an executor or trustee when
named
in, or nominated pursuant to, a will. No such executor or
trustee
shall be refused appointment or removed solely because the
executor or trustee is not a resident of this state.
The court may require that a nonresident executor or
trustee
named in, or nominated pursuant to, a will assure that
all of the
assets of the decedent that are in the county at the
time of the
death of the decedent will remain in the county until
distribution
or until the court determines that the assets may be
removed from
the county.
(2) In accordance with this division and section 2129.08
of
the Revised Code, the court shall appoint as an ancillary
administrator a person who is named in the will of a nonresident
decedent, or who is nominated in accordance with any power of
nomination conferred in the will of a nonresident decedent, as a
general executor of the decedent's estate or as executor of the
portion of the decedent's estate located in this state, whether
or
not the person so named or nominated is a resident of this
state.
To qualify for appointment as an ancillary administrator, a
person who is not a resident of this state and who is named or
nominated as described in this division, shall be an individual
who is related to the maker of the will by consanguinity or
affinity, or a person who resides in a state that has statutes or
rules that authorize the appointment of a nonresident of that
state who is not related to the maker of a will by consanguinity
or affinity, as an ancillary administrator when the nonresident
is
named in a will or nominated in accordance with any power of
nomination conferred in a will. If a person who is not a
resident
of this state and who is named or nominated as described
in this
division so qualifies for appointment as an ancillary
administrator and if the provisions of section 2129.08 of the
Revised Code are satisfied, the court shall not refuse to appoint
the person, and shall not remove the person, as ancillary
administrator solely because the person is not a resident of this
state.
The court may require that an ancillary administrator who
is
not a resident of this state and who is named or nominated as
described in this division, assure that all of the assets of the
decedent that are in the county at the time of the death of the
decedent will remain in the county until distribution or until
the
court determines that the assets may be removed from the
county.
(C)(1) A guardian shall be a resident of the county this
state, except
that
the court may appoint a nonresident of the
county who is a
resident of this state as a guardian of the
person, the estate, or
both; that a nonresident of the county or
of this state may be
appointed a guardian, if any of the following
applies:
(a) The nonresident is named in a will by a parent of a minor
or
if.
(b) The nonresident is selected by a minor over the age of
fourteen years as
provided
by section 2111.12 of the Revised
Code; and that a
nonresident of
the county or of this state may
be appointed a
guardian if.
(c) The nonresident is
nominated in or pursuant to a durable
power of
attorney as
described in division (D) of section 1337.09
of the
Revised Code
or a writing as described in division (A) of
section
2111.121 of
the Revised Code. A
(2) A guardian,
other than a guardian
named in a
will by a
parent of a minor, selected by a
minor over
the age of
fourteen
years, or nominated in or pursuant to such a
durable
power of
attorney or writing described in division (C)(1)(c) of this
section, may be removed on proof
that
the
guardian is no longer
a resident of the county or this state in
which
the guardian
resided
at the time of the guardian's
appointment.
(D) Any fiduciary, whose residence qualifications are not
defined in this section, shall be a resident of this state, and
shall be removed on proof that the fiduciary is no longer a
resident
of this
state.
(E) Any fiduciary, in order to assist in the carrying out
of
the fiduciary's fiduciary duties, may employ agents who are not
residents
of the county or of this state.
Sec. 2111.05. When the whole estate of a ward, or of
several
wards jointly, under the same guardianship, does not
exceed ten
twenty-five thousand dollars in value, the guardian may apply to
the probate court for an order to terminate the guardianship.
Upon
proof that it would be for the best interest of the ward to
terminate the guardianship, the court may order the guardianship
terminated, and direct the guardian, if the ward is a minor, to
deposit the assets of the guardianship in a depository authorized
to receive fiduciary funds, payable to the ward when he the ward
attains
majority, or the court may authorize the delivery of the
assets
to the natural guardian of the minor, to the person by whom
the
minor is maintained, to the executive director of children
services in the county, or to the minor himself minor's own
self.
If the ward is an incompetent, and the court orders the
guardianship terminated, the court may authorize the deposit of
the assets of the guardianship in a depository authorized to
receive fiduciary funds in the name of a suitable person to be
designated by the court, or if the assets do not consist of
money,
the court may authorize delivery to a suitable person to
be
designated by the court. The person receiving the assets
shall
hold and dispose of them in the manner the court directs.
If the court refuses to grant the application to terminate
the guardianship, or if no such application is presented to the
court, the guardian only shall be required to render account upon
the termination of his the guardianship, upon order of the
probate
court made upon its own motion, or upon the order of the court
made on the motion of a person interested in the wards or their
property, for good cause shown, and set forth upon the journal of
the court.
If the estate is ten twenty-five thousand dollars or less and
the ward
is a minor, the court, without the appointment of a
guardian by
the court, or the giving of bond, may authorize the
deposit in a
depository authorized to receive fiduciary funds,
payable to the
guardian when appointed, or to the ward when he the
ward attains
majority,
or the court may authorize delivery to the
natural guardian of
the minor, to the person by whom the minor is
maintained, to the
executive director who is responsible for the
administration of
children services in the county, or to the minor
himself minor's own
self.
If the whole estate of a person over eighteen years of age,
who has been adjudged mentally ill or mentally retarded
incompetent, does not
exceed ten twenty-five thousand dollars in
value, the court, without the
appointment of a guardian by the
court or the giving of bond, may
authorize the deposit of the
estate in a depository authorized to
receive fiduciary funds in
the name of a suitable person to be
designated by the court, or if
the assets do not consist of
money, the court may authorize
delivery to a suitable person to
be designated by the court. The
person receiving the assets
shall hold and dispose of them in the
manner the court directs.
Sec. 2111.18. When If personal injury, damage to tangible or
intangible property, or damage or loss on account of personal
injury or damage to tangible or intangible property is caused to
a
ward by wrongful act, neglect, or default that would entitle
the
ward to maintain an action and recover damages for the
injury,
damage, or loss, and when any ward is entitled to
maintain an
action for damages or any other relief based on any
claim or is
subject to any claim to recover damages or any other
relief based
on any claim, the guardian of the estate of the ward
may adjust
and settle the claim with the advice, approval, and
consent of the
probate court. In the settlement, if the ward is
a minor, the
parent or parents may waive all claim for damages on
account of
loss of service of the minor, and that claim may be
included in
the settlement. However, when If it is proposed that
the a claim
involved be settled for ten the net amount of twenty-five thousand
dollars or less after payment of fees and expenses as allowed by
the court,
the court, upon application by any suitable person whom
the court may
authorize to receive and receipt for the settlement,
may
authorize the settlement without the appointment of a guardian
and authorize the delivery of the moneys to the natural guardian
of the minor, to the person by whom the minor is maintained, or
to
the minor himself as provided in section 2111.05 of the Revised
Code. The court may authorize
the minor or
person receiving the
moneys to execute a complete release on
account of the receipt.
The payment shall be a complete and
final discharge of any such
that claim. In the settlement, if the ward is a minor, the parent
or parents of the minor may waive all claim for damages on account
of loss of service of the minor, and that claim may be included in
the settlement.
Sec. 2125.04. In every civil action for wrongful death that
is commenced
or attempted to be
commenced within the time
specified by division (D)(1) or (D)(2)(c), (d), (e), (f), or (g)
of
section
2125.02 of the
Revised Code, if a judgment for the
plaintiff is
reversed or
the plaintiff fails otherwise than upon
the
merits
and if the
time limited by any of those divisions for
the
commencement of the
action has
expired at the date of
the
reversal or failure, the
plaintiff or, if
the plaintiff
dies and
the cause of action
survives,
the personal
representative
of the
plaintiff may
commence
a new civil action for wrongful death
within one year after that the date of the reversal of the
judgment or the plaintiff's failure otherwise than upon the merits
or within the period specified by any of those divisions,
whichever occurs later.
Sec. 2305.19. (A) In any action that is commenced or
attempted to be commenced, if in due
time a judgment for the
plaintiff is reversed or if the plaintiff fails
otherwise than
upon the merits, the plaintiff or,
if the plaintiff dies and the
cause of action survives,
the plaintiff's representative may
commence
a new action within one year after the date of the
reversal of the judgment or the plaintiff's failure otherwise than
upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later. This division
applies to any
claim asserted in any pleading by a defendant.
(B) If the defendant in an action described in division (A)
of this section is a foreign or domestic
corporation, and whether
its charter prescribes the
manner or place of service of process
on the defendant, and if it passes into
the hands of a receiver
before the expiration of the one year period or the period of the
original applicable statute of limitations, whichever is
applicable, as described in that division, then service to be
made
within one year following the original service or attempt to begin
the
action may be made upon that receiver or the receiver's
cashier, treasurer, secretary,
clerk, or managing agent, or if
none of these officers can be found, by a copy
left at the office
or the usual place of business of any of those agents or officers
of the receiver with the person having charge of the office or
place of business. If that corporation is
a railroad company,
summons may be served on any regular ticket or freight
agent of
the receiver, and if there is no regular ticket or freight agent
of the receiver, then upon any conductor
of the receiver, in any
county in the state in which the railroad is located.
The summons
shall be returned as if served on that defendant corporation.
(C) This section does not apply to an action or proceeding
arising under section 2106.22, 2107.76, 2109.35, 2115.16, 5806.04,
or 5810.05 of the Revised Code.
Sec. 5747.01. Except as otherwise expressly provided or
clearly appearing from the context, any term used in this chapter
that is not otherwise defined in this section
has the same meaning
as when used in a comparable context in the
laws of the United
States
relating to federal income taxes or if not used in a
comparable context in those laws, has the same meaning as in
section 5733.40 of the Revised Code. Any reference in this chapter
to the Internal Revenue Code includes other laws of the United
States relating to federal income taxes.
As used in this chapter:
(A) "Adjusted gross income" or "Ohio adjusted gross
income"
means
federal adjusted gross income, as defined and used in the
Internal
Revenue Code, adjusted as provided in this section:
(1) Add interest or dividends on obligations or securities
of
any state or of any political subdivision or authority of any
state, other than this state and its subdivisions and authorities.
(2) Add interest or dividends on obligations of any
authority, commission, instrumentality, territory, or possession
of the United States
to the extent that
the interest or dividends
are exempt from federal income taxes
but
not from state income
taxes.
(3) Deduct interest or dividends on obligations of the
United
States and its territories and possessions or of any
authority,
commission, or instrumentality of the United States to
the extent
that the interest or dividends are included in federal
adjusted
gross income but exempt
from state income taxes under the
laws of
the United States.
(4) Deduct disability and survivor's benefits to the
extent
included in federal adjusted gross income.
(5) Deduct benefits under Title II of the Social Security
Act
and tier 1 railroad retirement benefits to the extent
included
in
federal adjusted gross income under section 86 of the
Internal
Revenue Code.
(6)
In the case of a taxpayer who is a beneficiary of
a
trust
that makes an accumulation distribution as defined in
section 665
of the Internal Revenue Code,
add, for the
beneficiary's taxable
years
beginning before 2002,
the portion, if
any, of
such
distribution
that does not exceed the
undistributed
net
income of
the trust for
the three taxable years
preceding the
taxable year
in which the
distribution is made
to
the extent that the portion
was not included in the trust's
taxable income for any of the
trust's taxable years beginning in
2002 or thereafter.
"Undistributed
net
income of a trust" means
the taxable income of
the trust
increased
by (a)(i) the additions
to adjusted gross
income
required under
division (A) of this
section and (ii) the
personal
exemptions
allowed to the trust
pursuant to section
642(b) of the
Internal
Revenue Code, and
decreased by (b)(i) the
deductions to
adjusted
gross income
required under division (A) of
this
section,
(ii) the
amount of
federal income taxes attributable
to
such
income, and
(iii) the
amount of taxable income that has
been
included in the
adjusted
gross income of a beneficiary by
reason
of a prior
accumulation
distribution. Any undistributed
net
income included
in the
adjusted gross income of a beneficiary
shall reduce the
undistributed net income of the trust commencing
with the earliest
years of the accumulation period.
(7) Deduct the amount of wages and salaries, if any, not
otherwise allowable as a deduction but that would have been
allowable as a deduction in computing federal adjusted gross
income for the taxable year, had the targeted jobs credit allowed
and determined under sections 38, 51, and 52 of the Internal
Revenue Code not been in effect.
(8) Deduct any interest or interest equivalent on public
obligations and purchase obligations to the extent
that the
interest or interest equivalent is included in
federal adjusted
gross income.
(9) Add any loss or deduct any gain resulting from the
sale,
exchange, or other disposition of public obligations to the
extent
that the loss has been deducted or the gain has been
included in
computing federal adjusted gross income.
(10)
Deduct or add amounts, as provided under section
5747.70 of the
Revised
Code, related to contributions to variable
college savings program
accounts made or tuition units purchased
pursuant to Chapter
3334. of the Revised Code.
(11)(a) Deduct, to the extent not otherwise allowable as a
deduction or
exclusion in computing federal or Ohio adjusted gross
income for the taxable
year, the amount the taxpayer paid during
the taxable year for medical care
insurance and qualified
long-term care insurance for the taxpayer, the
taxpayer's spouse,
and dependents. No deduction for medical care insurance
under
division (A)(11) of this section shall be allowed either to any
taxpayer
who is eligible to participate in any subsidized health
plan maintained by any
employer of the taxpayer or of the
taxpayer's spouse, or to any taxpayer who
is entitled to, or on
application would be entitled to, benefits under part A of Title
XVIII of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.
301, as amended. For the purposes of division (A)(11)(a) of this
section, "subsidized health plan" means a health plan for which
the employer pays any portion of the plan's cost. The deduction
allowed under division (A)(11)(a) of this section shall be the net
of any related premium refunds, related premium reimbursements, or
related insurance premium dividends received during the taxable
year.
(b) Deduct, to the extent not otherwise deducted or excluded
in
computing federal or Ohio adjusted gross income during the
taxable
year, the amount the taxpayer paid during the taxable
year, not
compensated for by any insurance or otherwise, for
medical care of
the taxpayer, the taxpayer's spouse, and
dependents, to the extent
the expenses exceed seven and one-half
per cent of the taxpayer's
federal adjusted gross income.
(c) For purposes of division (A)(11) of this section,
"medical
care" has the meaning given in section 213 of the
Internal Revenue
Code, subject to the special rules, limitations,
and exclusions
set forth therein, and "qualified long-term care"
has the same
meaning given in section 7702B(c) of the Internal
Revenue Code.
(12)(a) Deduct any amount included in federal adjusted gross
income solely because the amount represents a reimbursement or
refund of expenses that in any year the taxpayer had
deducted as
an itemized deduction pursuant to section 63 of the
Internal
Revenue Code and applicable United States
department of the
treasury regulations.
The deduction otherwise allowed under
division (A)(12)(a) of this section shall be reduced to the extent
the reimbursement is attributable to an amount the taxpayer
deducted under this section in any taxable year.
(b) Add any amount not otherwise included in Ohio adjusted
gross
income for any taxable year to the extent that the amount is
attributable to the recovery during the taxable year of any amount
deducted or excluded in computing federal or Ohio adjusted gross
income in any taxable year.
(13) Deduct any portion of the deduction described in
section
1341(a)(2) of the Internal Revenue Code, for repaying
previously
reported income received under a claim of right, that
meets both
of the following requirements:
(a) It is allowable for repayment of an item that was
included in the taxpayer's adjusted gross income for a prior
taxable year and did not qualify for a credit under division (A)
or (B) of section 5747.05 of the Revised Code for that year;
(b) It does not otherwise reduce the taxpayer's adjusted
gross income for the current or any other taxable year.
(14) Deduct an amount equal to the deposits made to, and
net
investment earnings of, a medical savings account during the
taxable year,
in accordance with section 3924.66 of the Revised
Code. The deduction
allowed by division (A)(14) of this section
does not apply to medical
savings account deposits and earnings
otherwise deducted or excluded for the
current or any other
taxable year from the taxpayer's federal adjusted gross
income.
(15)(a) Add an amount equal to the funds withdrawn from a
medical
savings account during the taxable year, and the net
investment earnings on
those funds, when the funds withdrawn were
used for any purpose other than to
reimburse an account holder
for, or to pay, eligible medical expenses, in
accordance with
section 3924.66 of the Revised Code;
(b) Add the amounts distributed from a medical savings
account
under division (A)(2) of section 3924.68 of the Revised
Code during the
taxable year.
(16) Add any amount claimed as a credit under section
5747.059 of the Revised
Code to the extent that such amount
satisfies either of the following:
(a) The amount was deducted or excluded from the computation
of the
taxpayer's federal adjusted gross income as required to be
reported for the
taxpayer's taxable year under the Internal
Revenue Code;
(b) The amount resulted in a reduction of the taxpayer's
federal adjusted
gross income as required to be reported for any
of the taxpayer's taxable
years under the Internal Revenue Code.
(17) Deduct the amount contributed by the taxpayer to an
individual development account program established by a county
department of
job and family services pursuant to sections 329.11
to
329.14 of the Revised Code for
the purpose of matching funds
deposited by program participants. On request
of
the tax
commissioner, the taxpayer shall provide any information that, in
the
tax commissioner's opinion, is necessary to establish the
amount deducted
under
division (A)(17) of this section.
(18) Beginning in taxable year 2001 but not for any taxable
year beginning after December 31, 2005, if the taxpayer is
married
and files a joint return and the
combined federal adjusted
gross
income of the taxpayer and the taxpayer's
spouse for the
taxable
year does not exceed one hundred thousand dollars, or
if
the
taxpayer is single and has a federal adjusted gross income for
the
taxable
year not exceeding fifty thousand dollars, deduct
amounts
paid during the
taxable year for qualified tuition and
fees paid
to an eligible institution
for the taxpayer, the
taxpayer's
spouse, or any dependent of the taxpayer, who
is a
resident of
this state and is enrolled in or attending a program
that
culminates in a degree or diploma at an eligible institution.
The
deduction
may be claimed only to the extent that qualified
tuition
and fees are not
otherwise deducted or excluded for any
taxable
year from federal or
Ohio adjusted gross income. The
deduction
may
not be claimed for educational expenses for which
the taxpayer
claims a
credit under section 5747.27 of the Revised
Code.
(19) Add any reimbursement received during the taxable year
of any amount
the taxpayer deducted under division (A)(18) of this
section in any
previous taxable year to the extent the amount is
not otherwise included in
Ohio adjusted gross income.
(20)(a)(i) Add five-sixths of the amount of depreciation
expense allowed by subsection (k) of section 168 of the Internal
Revenue Code, including the taxpayer's proportionate or
distributive share of the amount of depreciation expense allowed
by that subsection to a pass-through entity in which the taxpayer
has a direct or indirect ownership interest.
(ii) Add five-sixths of the amount of qualifying section 179
depreciation expense, including a person's proportionate or
distributive share of the amount of qualifying section 179
depreciation expense allowed to any pass-through entity in which
the person has a direct or indirect ownership. For the purposes of
this division, "qualifying section 179 depreciation expense" means
the difference between (I) the amount of depreciation expense
directly or indirectly allowed to the taxpayer under section 179
of the Internal Revenue Code, and (II) the amount of depreciation
expense directly or indirectly allowed to the taxpayer under
section 179 of the Internal Revenue Code as that section existed
on December 31, 2002.
The tax
commissioner, under procedures established by the
commissioner,
may waive the add-backs related to a pass-through
entity if the
taxpayer owns, directly or indirectly, less than
five per cent of
the pass-through entity.
(b) Nothing in division (A)(20) of this section shall be
construed to adjust or modify the adjusted basis of any asset.
(c) To the extent the add-back required under division
(A)(20)(a) of this section is attributable to property generating
nonbusiness income or loss allocated under section 5747.20 of the
Revised Code, the add-back shall be sitused to the same location
as the nonbusiness income or loss generated by the property for
the purpose of determining the credit under division (A) of
section 5747.05 of the Revised Code. Otherwise, the add-back
shall
be apportioned, subject to one or more of the four
alternative
methods of apportionment enumerated in section 5747.21
of the
Revised Code.
(d) For the purposes of division (A) of this section, net
operating loss carryback and carryforward shall not include
five-sixths of the allowance of any net operating loss deduction
carryback or carryforward to the taxable year to the extent such
loss resulted from depreciation allowed by section 168(k) of the
Internal Revenue Code and by the qualifying section 179
depreciation expense amount.
(21)(a) If the taxpayer was required to add an amount under
division (A)(20)(a) of this section for a taxable year, deduct
one-fifth of the amount so added for each of the five succeeding
taxable years.
(b) If the amount deducted under division (A)(21)(a) of
this
section is attributable to an add-back allocated under
division
(A)(20)(c) of this section, the amount deducted shall be
sitused
to the same location. Otherwise, the add-back shall be
apportioned
using the apportionment factors for the taxable year
in which the
deduction is taken, subject to one or more of the
four alternative
methods of apportionment enumerated in section
5747.21 of the
Revised Code.
(c) No deduction is available under division (A)(21)(a) of
this section with regard to any depreciation allowed by section
168(k) of the Internal Revenue Code and by the qualifying section
179 depreciation expense amount to the extent that such
depreciation resulted in or increased a federal net operating loss
carryback or carryforward to a taxable year to which division
(A)(20)(d) of this section does not apply.
(22) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year as
reimbursement for life insurance premiums under section 5919.31 of
the Revised Code.
(23) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year as
a death benefit paid by the adjutant general under section 5919.33
of the Revised Code.
(24) Deduct, to the extent included in federal adjusted gross
income and not otherwise allowable as a deduction or exclusion in
computing federal or Ohio adjusted gross income for the taxable
year, military pay and allowances received by the taxpayer during
the taxable year for active duty service in the United States
army, air force, navy, marine corps, or coast guard or reserve
components thereof or the national guard. The deduction may not be
claimed for military pay and allowances received by the taxpayer
while the taxpayer is stationed in this state.
(25) Deduct, to the extent not otherwise allowable as a
deduction or exclusion in computing federal or Ohio adjusted gross
income for the taxable year and not otherwise compensated for by
any other source, the amount of qualified organ donation expenses
incurred by the taxpayer during the taxable year, not to exceed
ten thousand dollars. A taxpayer may deduct qualified organ
donation expenses only once for all taxable years beginning with
taxable years beginning in 2007.
For the purposes of division (A)(25) of this section:
(a) "Human organ" means all or any portion of a human liver,
pancreas, kidney, intestine, or lung, and any portion of human
bone marrow.
(b) "Qualified organ donation expenses" means travel
expenses, lodging expenses, and wages and salary forgone by a
taxpayer in connection with the taxpayer's donation, while living,
of one or more of the taxpayer's human organs to another human
being.
(26) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, amounts received by the taxpayer as retired military
personnel pay for service in the United States army, navy, air
force, coast guard, or marine corps or reserve components thereof,
or the national guard, or received by the
surviving spouse or
former spouse of such a taxpayer under the
survivor benefit plan
on account of such a taxpayer's death. If the taxpayer receives
income on account
of retirement paid under the federal civil
service retirement
system or federal employees retirement system,
or under any
successor retirement program enacted by the congress
of the United
States that is established and maintained for
retired employees of
the United States government, and such
retirement income is based,
in whole or in part, on credit for
the taxpayer's military
service, the deduction allowed under this
division shall include
only that portion of such retirement
income that is attributable
to the taxpayer's military service,
to the extent that portion of
such retirement income is otherwise
included in federal adjusted
gross income and is not otherwise
deducted under this section. Any
amount deducted under division
(A)(26)
of this section is not
included in a taxpayer's
adjusted gross
income for the purposes
of section 5747.055 of
the Revised Code.
No amount may be
deducted under division
(A)(26) of this section
on the basis of
which a credit was
claimed under section 5747.055
of the Revised
Code.
(27) Deduct, to the extent not otherwise deducted or excluded
in computing federal or Ohio adjusted gross income for the taxable
year, the amount the taxpayer received during the taxable year
from the military injury relief fund created in section 5101.98 of
the Revised Code.
(B) "Business income" means income, including gain or loss,
arising from
transactions, activities, and sources in the regular
course of a
trade or business and includes income, gain, or loss
from
real property, tangible
property, and
intangible
property if
the acquisition, rental,
management, and
disposition
of the
property constitute integral
parts of the
regular course of
a
trade or business operation.
"Business income"
includes income,
including gain or loss, from a
partial or
complete liquidation of
a business, including, but not
limited to,
gain or loss from the
sale or other disposition of
goodwill.
(C) "Nonbusiness income" means all income other than
business
income and may include, but is not limited to,
compensation, rents
and royalties from real or tangible personal
property, capital
gains, interest, dividends and distributions,
patent or copyright
royalties, or lottery winnings, prizes, and
awards.
(D) "Compensation" means any form of remuneration paid to
an
employee for personal services.
(E) "Fiduciary" means a guardian, trustee, executor,
administrator, receiver, conservator, or any other person acting
in any fiduciary capacity for any individual, trust, or estate.
(F) "Fiscal year" means an accounting period of twelve
months
ending on the last day of any month other than December.
(G) "Individual" means any natural person.
(H) "Internal Revenue Code" means the "Internal Revenue
Code
of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended.
(I) "Resident" means
any of the following, provided that
division (I)(3) of this section applies only to taxable years of a
trust beginning in 2002 or thereafter:
(1) An individual who is domiciled in this state, subject
to
section 5747.24 of the Revised Code;
(2) The estate of a decedent who at the time of death
was
domiciled in this state. The domicile tests of section
5747.24 of
the Revised Code are not controlling for purposes of
division
(I)(2)
of this section.
(3)
A
trust that, in whole or part, resides in this state.
If
only part of a trust resides in this state, the trust is a
resident only with respect to that part.
For the purposes of
division (I)(3) of this section:
(a) A trust resides in this state
for the trust's current
taxable year to
the extent, as described in division (I)(3)(d) of
this section, that
the trust consists directly or indirectly,
in
whole or
in part,
of assets, net of any related
liabilities, that
were
transferred, or caused to be transferred,
directly or
indirectly,
to the trust by any of the following:
(i) A person, a court, or a governmental
entity or
instrumentality on account of the death of a decedent, but only if
the trust is described in division (I)(3)(e)(i)
or (ii) of this
section;
(ii) A person who
was domiciled in this state
for the
purposes of
this chapter when the person directly or indirectly
transferred
assets to an irrevocable trust, but only if at least
one of the
trust's qualifying beneficiaries is domiciled in this
state for
the purposes of this chapter during all or some portion
of the
trust's current taxable year;
(iii) A person who was domiciled in this state
for the
purposes of this chapter when the trust
document or instrument
or
part of the trust
document or instrument became irrevocable, but
only if at least
one
of
the trust's qualifying beneficiaries is a
resident domiciled in
this state for the purposes of
this chapter
during all or some
portion of the trust's current taxable year. If
a trust document or instrument became irrevocable upon the death
of a person who at the time of death was domiciled in this state
for purposes of this chapter, that person is a person described in
division (I)(3)(a)(iii) of this section.
(b) A trust is
irrevocable to
the extent that the transferor
is not
considered to
be the owner
of the net assets of the trust
under sections 671 to
678 of the
Internal
Revenue Code.
(c) With respect to a trust other than a charitable lead
trust, "qualifying beneficiary" has the same meaning as "potential
current beneficiary" as defined in section 1361(e)(2) of the
Internal Revenue Code, and with respect to a charitable lead trust
"qualifying beneficiary" is any current, future, or contingent
beneficiary, but with respect to any trust "qualifying
beneficiary" excludes a person or a governmental entity or
instrumentality to any of which a contribution would qualify for
the charitable deduction under section 170 of the Internal Revenue
Code.
(d) For the purposes of division (I)(3)(a) of this section,
the extent to which a trust consists directly or indirectly, in
whole or in part, of assets, net of any related liabilities, that
were transferred directly or indirectly, in whole or part, to the
trust by any of the sources enumerated in that division shall be
ascertained by multiplying the fair market value of the trust's
assets, net of related liabilities, by the qualifying ratio, which
shall be computed as follows:
(i) The first time the trust receives assets, the numerator
of the qualifying ratio is the fair market value of those assets
at that time, net of any related liabilities, from sources
enumerated in division (I)(3)(a) of this section. The denominator
of the qualifying ratio is the fair market value of all the
trust's assets at that time, net of any related liabilities.
(ii) Each subsequent time the trust receives assets, a
revised qualifying ratio shall be computed. The numerator of the
revised qualifying ratio is the sum of (1) the fair market value
of the trust's assets immediately prior to the subsequent
transfer, net of any related liabilities, multiplied by the
qualifying ratio last computed without regard to the subsequent
transfer, and (2) the fair market value of the subsequently
transferred assets at the time transferred, net of any related
liabilities, from sources enumerated in division (I)(3)(a) of this
section. The denominator of the revised qualifying ratio is the
fair market value of all the trust's assets immediately after the
subsequent transfer, net of any related liabilities.
(iii) Whether a transfer to the trust is by or from any of
the sources enumerated in division (I)(3)(a) of this section shall
be ascertained without regard to the domicile of the trust's
beneficiaries.
(e) For the purposes of division (I)(3)(a)(i) of this
section:
(i) A trust is described in division (I)(3)(e)(i) of this
section if the trust is a testamentary trust and the testator of
that testamentary trust was domiciled in this state at the time of
the testator's death for purposes of the taxes levied under
Chapter 5731. of the Revised Code.
(ii) A trust is described in division (I)(3)(e)(ii) of this
section if the transfer is a qualifying transfer described in any
of divisions (I)(3)(f)(i) to (vi) of this section, the trust is an
irrevocable inter vivos trust, and at least one of the trust's
qualifying beneficiaries is domiciled in this state for purposes
of this chapter during all or some portion of the trust's current
taxable year.
(f) For the purposes of division (I)(3)(e)(ii) of this
section, a "qualifying transfer" is a transfer of assets, net of
any related liabilities, directly or indirectly to a trust, if the
transfer is described in any of the following:
(i) The transfer is made to a trust, created by the
decedent
before the decedent's death and while the decedent was
domiciled
in this state for the purposes of this chapter, and,
prior to the
death of the decedent, the trust became irrevocable
while the
decedent was domiciled in this state for the purposes of
this
chapter.
(ii) The transfer is made to a trust to which the decedent,
prior to the decedent's death, had directly or indirectly
transferred assets, net of any related liabilities, while the
decedent was domiciled in this state for the purposes of this
chapter, and prior to the death of the decedent the trust became
irrevocable while the decedent was domiciled in this state for the
purposes of this chapter.
(iii) The transfer is made on account of a contractual
relationship existing directly or indirectly between the
transferor and either the decedent or the estate of the decedent
at any time prior to the date of the decedent's death, and the
decedent was domiciled in this state at the time of death for
purposes of the taxes levied under Chapter 5731. of the Revised
Code.
(iv) The transfer is made to a trust on account of a
contractual relationship existing directly or indirectly between
the transferor and another person who at the time of the
decedent's death was domiciled in this state for purposes of this
chapter.
(v) The transfer is made to a trust on account of the will
of
a testator who was domiciled in this state at the time of the
testator's death for purposes of the taxes levied under Chapter
5731. of the Revised Code.
(vi) The transfer is made to a trust created by or caused
to
be created by a court, and the trust was directly or indirectly
created in connection with or as a result of the death of an
individual who, for purposes of the taxes levied under Chapter
5731. of the Revised Code, was domiciled in this state at the time
of the individual's death.
(g) The tax commissioner may adopt rules to ascertain the
part
of
a trust residing in this state.
(J) "Nonresident" means an individual or estate that is
not
a
resident. An individual who is a resident for only part of
a
taxable year is a nonresident for the remainder of that taxable
year.
(K) "Pass-through entity" has the same meaning as in section
5733.04 of the
Revised Code.
(L) "Return" means the notifications and reports required
to
be filed pursuant to this chapter for the purpose of reporting
the
tax due and includes declarations of estimated tax when so
required.
(M) "Taxable year" means the calendar year or the
taxpayer's
fiscal year ending during the calendar year, or
fractional part
thereof, upon which the adjusted gross income is
calculated
pursuant to this chapter.
(N) "Taxpayer" means any person subject to the tax imposed
by
section 5747.02 of the Revised Code or any pass-through entity
that
makes the election under division (D) of section 5747.08 of
the Revised Code.
(O) "Dependents" means dependents as defined in the
Internal
Revenue Code and as claimed in the taxpayer's federal
income tax
return for the taxable year or which the taxpayer
would have been
permitted to claim had the taxpayer filed a
federal income
tax
return.
(P) "Principal county of employment" means, in the case of
a
nonresident, the county within the state in which a taxpayer
performs services for an employer or, if those services are
performed in more than one county, the county in which the major
portion of the services are performed.
(Q) As used in sections 5747.50 to 5747.55 of the Revised
Code:
(1) "Subdivision" means any county, municipal corporation,
park district, or township.
(2) "Essential local government purposes" includes all
functions that any subdivision is required by general law to
exercise, including like functions that are exercised under a
charter adopted pursuant to the Ohio Constitution.
(R) "Overpayment" means any amount already paid that
exceeds
the figure determined to be the correct amount of the
tax.
(S) "Taxable income"
or "Ohio taxable income" applies
only
to
estates
and
trusts,
and means
federal
taxable income, as
defined
and used in the
Internal
Revenue Code,
adjusted as
follows:
(1) Add interest or dividends, net of ordinary, necessary,
and reasonable expenses not deducted in computing federal taxable
income, on obligations or securities
of any state or of any
political subdivision or authority of any
state, other than this
state and its subdivisions and
authorities, but only to the
extent
that such net amount is not otherwise includible in Ohio
taxable
income and is described in either division (S)(1)(a) or
(b) of
this section:
(a) The net amount is not attributable to the S portion of
an
electing small business trust and has not been distributed to
beneficiaries for the taxable year;
(b) The net amount is attributable to the S portion of an
electing small business trust for the taxable year.
(2) Add interest or dividends, net of ordinary, necessary,
and reasonable expenses not deducted in computing federal taxable
income, on obligations of any
authority, commission,
instrumentality, territory, or possession
of the United States
to
the extent that
the interest or dividends are exempt from federal
income taxes
but
not from state income taxes, but only to the
extent that such net amount is not otherwise includible in Ohio
taxable income and is described in either division (S)(1)(a) or
(b) of this section;
(3) Add the amount of personal exemption allowed to the
estate pursuant to section 642(b) of the Internal Revenue Code;
(4) Deduct interest or dividends, net of related expenses
deducted in computing federal taxable income, on obligations of
the
United States and its territories and possessions or of any
authority, commission, or instrumentality of the United States
to
the extent
that
the interest or dividends are exempt from state
taxes under the laws of the United
States, but only to the extent
that such amount is included in federal taxable income and is
described in either division (S)(1)(a) or (b) of this section;
(5) Deduct the amount of wages and salaries, if any, not
otherwise allowable as a deduction but that would have been
allowable as a deduction in computing federal taxable income for
the taxable year, had the targeted jobs credit allowed under
sections 38, 51, and 52 of the Internal Revenue Code not been in
effect, but only to the extent such amount relates either to
income included in federal taxable income for the taxable year or
to income of the S portion of an electing small business trust for
the taxable year;
(6) Deduct any interest or interest equivalent, net of
related expenses deducted in computing federal taxable income, on
public
obligations and purchase obligations, but only to the
extent
that such net amount relates either to income included in
federal taxable income
for the taxable year or to income of the S
portion of an electing small business trust for the taxable year;
(7) Add any loss or deduct any gain resulting from sale,
exchange, or other disposition of public obligations to the
extent
that such loss has been deducted or such gain has been
included in
computing either federal taxable income
or income of the S portion
of an electing small business trust for the taxable year;
(8) Except in the case of the final return of an estate,
add
any amount deducted by the taxpayer on both its Ohio estate
tax
return pursuant to section 5731.14 of the Revised Code, and
on its
federal income tax return in determining
federal taxable income;
(9)(a) Deduct any amount included in federal taxable income
solely because the amount represents a reimbursement or refund of
expenses that in a previous year the decedent had deducted as an
itemized deduction pursuant to section 63 of the Internal Revenue
Code and applicable treasury regulations.
The deduction otherwise
allowed under division (S)(9)(a) of this section shall be reduced
to the extent the reimbursement is attributable to an amount the
taxpayer or decedent deducted under this section in any taxable
year.
(b) Add any amount not otherwise included in Ohio taxable
income
for any taxable year to the extent that the amount is
attributable
to the recovery during the taxable year of any amount
deducted or
excluded in computing federal or Ohio taxable income
in any
taxable year, but only to the extent such amount has not
been distributed
to beneficiaries for the taxable year.
(10) Deduct any portion of the deduction described in
section
1341(a)(2) of the Internal Revenue Code, for repaying
previously
reported income received under a claim of right, that
meets both
of the following requirements:
(a) It is allowable for repayment of an item that was
included in the taxpayer's taxable income or the decedent's
adjusted gross income for a prior taxable year and did not
qualify
for a credit under division (A) or (B) of section 5747.05
of the
Revised Code for that year.
(b) It does not otherwise reduce the taxpayer's taxable
income or the decedent's adjusted gross income for the current or
any other taxable year.
(11) Add any amount claimed as a credit under section
5747.059
of the Revised Code to the extent that the amount
satisfies
either of the following:
(a) The amount was deducted or excluded from the computation
of the
taxpayer's federal taxable income as required to be
reported for the
taxpayer's taxable year under the Internal
Revenue Code;
(b) The amount resulted in a reduction in the taxpayer's
federal taxable
income as required to be reported for any of the
taxpayer's taxable years
under the Internal Revenue Code.
(12) Deduct any amount, net of related expenses deducted in
computing federal taxable income, that a trust is required to
report
as
farm income on its federal income tax return, but only
if the
assets of the trust include at least ten acres of land
satisfying
the definition of "land devoted exclusively to
agricultural use"
under section 5713.30 of the Revised Code,
regardless of whether
the land is valued for tax purposes as such
land under sections
5713.30 to 5713.38 of the Revised Code.
If the
trust is a
pass-through entity investor, section 5747.231 of the
Revised Code
applies in ascertaining if the trust is eligible to
claim the
deduction provided by division (S)(12) of this section
in
connection with the pass-through entity's farm income.
Except for farm income attributable to the S portion of an
electing small business trust, the deduction provided by division
(S)(12) of this section is allowed only to the extent that the
trust has not distributed such farm income.
Division (S)(12) of
this
section applies only to taxable years of a trust beginning
in
2002 or thereafter.
(13) Add the net amount of income described in section 641(c)
of the Internal Revenue Code to the extent that amount is not
included in federal taxable income.
(14) Add or deduct the amount the taxpayer would be
required
to add or deduct under division (A)(20) or (21) of this
section if
the taxpayer's
Ohio taxable income were computed in the same
manner as
an individual's
Ohio adjusted gross income is computed
under
this
section. In the case of a trust, division (S)(14) of
this
section
applies only to any of the trust's taxable years
beginning
in
2002 or thereafter.
(T) "School district income" and "school district income
tax"
have the same meanings as in section 5748.01 of the Revised
Code.
(U) As used in divisions (A)(8), (A)(9), (S)(6), and
(S)(7)
of this section, "public obligations," "purchase
obligations," and
"interest or interest equivalent" have the same
meanings as in
section 5709.76 of the Revised Code.
(V) "Limited liability company" means any limited
liability
company formed under Chapter 1705. of the Revised Code
or under
the laws of any other state.
(W) "Pass-through entity investor" means any person who,
during any portion
of a taxable year of a pass-through entity, is
a partner, member, shareholder,
or
equity investor in that
pass-through
entity.
(X) "Banking day" has the same meaning as in section 1304.01
of the Revised
Code.
(Y) "Month" means a calendar month.
(Z) "Quarter" means the first three months, the second three
months, the
third three months, or the last three months of the
taxpayer's taxable year.
(AA)(1) "Eligible institution" means a state university or
state
institution of higher education as defined in section
3345.011 of the Revised Code, or a
private, nonprofit college,
university, or other post-secondary institution
located in this
state that possesses a certificate of authorization issued by
the
Ohio board of regents pursuant to Chapter 1713. of the Revised
Code or a
certificate of registration issued by the state board of
career colleges and schools under Chapter 3332. of the Revised
Code.
(2) "Qualified tuition and fees" means tuition and fees
imposed by an
eligible institution as a condition of enrollment or
attendance, not exceeding
two thousand five hundred dollars in
each of the individual's first two years
of post-secondary
education. If the individual is a part-time student,
"qualified
tuition and fees" includes tuition and fees paid for the academic
equivalent of the first two years of post-secondary education
during a maximum
of five taxable years, not exceeding a total of
five thousand dollars.
"Qualified tuition and fees" does not
include:
(a) Expenses for any course or activity involving sports,
games,
or hobbies unless the course or activity is part of the
individual's degree or
diploma program;
(b) The cost of books, room and board, student activity
fees,
athletic fees, insurance expenses, or other expenses
unrelated to
the
individual's academic course of instruction;
(c) Tuition, fees, or other expenses paid or reimbursed
through
an employer, scholarship, grant in aid, or other
educational benefit program.
(BB)(1) "Modified business
income" means the business income
included in a trust's
Ohio taxable
income after such taxable
income is
first reduced by the
qualifying
trust amount, if any.
(2) "Qualifying
trust amount" of a trust means capital gains
and
losses from the sale, exchange, or other disposition of equity
or
ownership
interests in, or debt obligations of, a
qualifying
investee to the extent included in the trust's
Ohio
taxable
income, but
only if the
following requirements are satisfied:
(a) The book value of the qualifying
investee's
physical
assets in this state and everywhere, as of the last day
of the
qualifying investee's fiscal or calendar year ending
immediately
prior to the date on which the trust recognizes the
gain or loss,
is available to the trust.
(b) The requirements of section 5747.011 of the Revised Code
are satisfied for the trust's taxable year in which the trust
recognizes the gain or loss.
Any gain or loss that is not a qualifying trust amount is
modified business income, qualifying investment income, or
modified nonbusiness income, as the
case may be.
(3) "Modified nonbusiness income" means a trust's
Ohio
taxable
income other than modified business income, other than
the
qualifying
trust amount, and other than qualifying investment
income, as defined in section 5747.012 of the Revised Code, to the
extent such qualifying investment income is not otherwise part of
modified business income.
(4) "Modified
Ohio taxable income" applies only to trusts,
and
means the sum of the
amounts described in divisions
(BB)(4)(a)
to (c) of this section:
(a)
The fraction,
calculated under section 5747.013, and
applying
section 5747.231 of the Revised Code, multiplied by the
sum of the following amounts:
(i) The trust's modified business income;
(ii) The trust's qualifying investment income, as defined
in
section 5747.012 of the Revised Code, but only to the extent
the
qualifying investment income does not otherwise constitute
modified business income and does not otherwise constitute a
qualifying trust amount.
(b) The qualifying
trust amount multiplied by
a
fraction, the
numerator of which is the sum of the
book value of
the
qualifying
investee's physical assets in this state
on the last day of the
qualifying
investee's fiscal or calendar year ending immediately
prior to the
day on which the trust recognizes the qualifying
trust amount, and
the denominator of which is the sum of the book
value of the
qualifying investee's total physical assets
everywhere
on the last day of the qualifying investee's
fiscal or
calendar year ending immediately prior to the day on
which the
trust recognizes the qualifying trust amount.
If, for a
taxable
year, the trust
recognizes a qualifying
trust amount
with
respect
to more than one
qualifying investee, the amount
described
in
division (BB)(4)(b)
of this section shall equal the
sum of the
products so computed
for each such qualifying
investee.
(c)(i) With respect to a trust or
portion of a trust that is
a resident as ascertained in accordance
with division (I)(3)(d) of
this section, its modified nonbusiness
income.
(ii) With respect to a trust or portion of a trust that is
not a resident as ascertained in accordance with division
(I)(3)(d) of this section, the amount of its modified nonbusiness
income satisfying the descriptions in divisions (B)(2) to (5) of
section 5747.20 of the Revised Code, except as otherwise provided
in division (BB)(4)(c)(ii) of this section. With respect to a
trust or portion of a trust that is not a resident as ascertained
in accordance with division (I)(3)(d) of this section, the trust's
portion of modified nonbusiness income recognized from the sale,
exchange, or other disposition of a debt interest in or equity
interest in a section 5747.212 entity, as defined in section
5747.212 of the Revised Code, without regard to division (A) of
that section, shall not be allocated to this state in accordance
with section 5747.20 of the Revised Code but shall be apportioned
to this state in accordance with division (B) of section 5747.212
of the Revised Code without regard to division (A) of that
section.
If the allocation and apportionment of a trust's income
under
divisions (BB)(4)(a) and (c) of this section do not fairly
represent the modified
Ohio taxable income of the trust in this
state,
the alternative methods described in division (C) of
section
5747.21 of the Revised Code may be applied in the manner
and to
the same extent provided in that section.
(5)(a) Except as set forth in division
(BB)(5)(b) of this
section, "qualifying investee" means a person
in which a trust
has
an equity or ownership interest, or a person
or unit of
government
the debt obligations of either of which are
owned by a
trust.
For
the purposes of division (BB)(2)(a) of this
section and for the
purpose of computing the fraction described in
division (BB)(4)(b)
of this section, all of the following apply:
(i) If the qualifying investee is a member of a qualifying
controlled group on the last day of the qualifying investee's
fiscal or calendar year ending immediately prior to the date on
which the trust recognizes the gain or loss, then "qualifying
investee" includes all persons in the qualifying controlled group
on such last day.
(ii) If the qualifying investee, or if the qualifying
investee and any members of the
qualifying controlled group of
which the qualifying investee is a
member on the last day of the
qualifying investee's fiscal or
calendar year ending immediately
prior to the date on which the
trust recognizes the gain or loss,
separately or cumulatively own,
directly or indirectly, on the
last day of the qualifying
investee's fiscal or calendar year
ending immediately prior to the
date on which the trust recognizes
the qualifying trust amount, more
than fifty per cent of the
equity of a pass-through entity, then
the qualifying investee and
the other members are deemed to own
the proportionate share of the
pass-through entity's physical
assets which the pass-through
entity directly or indirectly owns
on the last day of the
pass-through entity's calendar or fiscal
year ending within or
with the last day of the qualifying
investee's fiscal or calendar
year ending immediately prior to the
date on which the trust
recognizes the qualifying trust amount.
(iii) For the purposes of division (BB)(5)(a)(iii) of this
section, "upper level
pass-through entity" means a pass-through
entity directly or
indirectly owning any equity of another
pass-through entity, and
"lower level pass-through
entity" means
that other pass-through entity.
An upper level pass-through entity, whether or not it is
also
a qualifying investee, is deemed to own, on the last day of
the
upper level pass-through entity's calendar or fiscal year, the
proportionate share of the lower level pass-through entity's
physical assets that the lower level pass-through entity directly
or indirectly owns on the last day of the lower level pass-through
entity's calendar or fiscal year ending within or with the last
day of the upper level pass-through entity's fiscal or calendar
year. If the upper level pass-through entity directly and
indirectly owns less than fifty per cent of the equity of the
lower level pass-through entity on each day of the upper level
pass-through entity's calendar or fiscal year in which or with
which ends the calendar or fiscal year of the lower level
pass-through entity and if, based upon clear and convincing
evidence, complete information about the location and cost of the
physical assets of the lower pass-through entity is not available
to the upper level pass-through entity, then solely for purposes
of ascertaining if a gain or loss constitutes a qualifying trust
amount, the upper level pass-through entity shall be deemed as
owning no equity of the lower level pass-through entity for each
day during the upper level pass-through entity's calendar or
fiscal year in which or with which ends the lower level
pass-through entity's calendar or fiscal year. Nothing in
division
(BB)(5)(a)(iii) of this section shall be construed to
provide for
any deduction or
exclusion in computing any trust's
Ohio taxable
income.
(b) With respect to a trust that is not a resident for the
taxable year and with respect to a part of a trust that is not a
resident for the taxable year, "qualifying investee" for that
taxable year does not include a C corporation if both of the
following apply:
(i) During the taxable year the trust or part of the trust
recognizes a gain or loss from the sale, exchange, or other
disposition of equity or ownership interests in, or debt
obligations of, the C corporation.
(ii) Such gain or loss constitutes nonbusiness income.
(6) "Available" means information is such that a person
is
able to learn of the information by the due date plus
extensions,
if any, for filing the return for the taxable year in
which the
trust recognizes the gain or loss.
(CC) "Qualifying controlled group" has the same meaning as
in
section 5733.04 of the Revised Code.
(DD) "Related member" has the same meaning as in section
5733.042 of the Revised Code.
(EE)(1) For the purposes of division (EE) of this section:
(a) "Qualifying person" means any person other than a
qualifying corporation.
(b) "Qualifying corporation" means any person classified for
federal income tax purposes as an association taxable as a
corporation, except either of the following:
(i) A corporation that has made an election under subchapter
S, chapter one, subtitle A, of the Internal Revenue Code for its
taxable year ending within, or on the last day of, the investor's
taxable year;
(ii) A subsidiary that is wholly owned by any corporation
that has made an election under subchapter S, chapter one,
subtitle A of the Internal Revenue Code for its taxable year
ending within, or on the last day of, the investor's taxable year.
(2) For the purposes of this chapter, unless expressly stated
otherwise, no qualifying person indirectly owns any asset directly
or indirectly owned by any qualifying corporation.
(FF) For purposes of this chapter and Chapter 5751. of the
Revised Code:
(1) "Trust" does not include a qualified pre-income tax
trust.
(2) A "qualified pre-income tax trust" is any pre-income tax
trust that makes a qualifying pre-income tax trust election as
described in division (FF)(3) of this section.
(3) A "qualifying pre-income tax trust election" is an
election by a pre-income tax trust to subject to the tax imposed
by section 5751.02 of the Revised Code the pre-income tax trust
and all pass-through entities of which the trust owns or
controls,
directly, indirectly, or constructively through related
interests,
five per cent or more of the ownership or equity
interests. The
trustee shall notify the tax commissioner in
writing of the
election on or before April 15, 2006. The
election, if timely
made, shall be effective on and after January
1, 2006, and shall
apply for all tax periods and tax years until
revoked by the
trustee of the trust.
(4) A "pre-income tax trust" is a trust that satisfies all of
the following requirements:
(a) The document or instrument creating the trust was
executed by the grantor before January 1, 1972;
(b) The trust became irrevocable upon the creation of the
trust; and
(c) The grantor was domiciled in this state at the time the
trust was created.
Sec. 5815.31. Unless the trust or separation agreement
provides otherwise, if, after executing a trust in which the
grantor
reserves to self a power to alter, amend, revoke, or
terminate
the provisions of the trust, a grantor is divorced,
obtains a
dissolution of marriage, has the grantor's marriage
annulled, or, upon
actual separation from the grantor's spouse,
enters into a
separation
agreement pursuant to which the parties
intend to fully and
finally settle their prospective property
rights in the property
of the other, whether by expected
inheritance or otherwise, the
spouse or former spouse of the
grantor shall be deemed to have
predeceased the grantor, and any
provision in the trust conferring
any beneficial interest or a
general or special power of appointment on the spouse or former
spouse or nominating the spouse or former spouse as trustee or
trust advisor shall be revoked. If the grantor remarries the
grantor's
former spouse or if the separation agreement is
terminated, the
spouse shall not be deemed to have predeceased the
grantor, and
any provision in the trust conferring any beneficial
interest or a general or special power
of appointment on the
spouse or former spouse or nominating the
spouse or former spouse
as trustee or trust advisor shall not be
revoked.
SECTION 2. That existing sections 2101.16, 2107.76, 2109.21,
2111.05,
2111.18, 2125.04, 2305.19, 5747.01, and 5815.31 of the
Revised Code are
hereby
repealed.
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