Chapter 5703-1 General Provisions
Under authority of Revised Code 5703.40, it is hereby ordered that all divisions of this Department may exchange any or all data or other information which this Department may have before it, other than that secured from the Federal government or from some other state, with state departments of any other state of the United States which administer the tax laws of such state under the following circumstances and conditions:
A reciprocal agreement with the tax administering authority of each other state shall be authorized by journal entry of the Tax Commissioner, providing for the mutual exchange of information with such other state;
A record of such information so exchanged shall be maintained by the division of this Department concerned with such exchange, either sending or receiving such information;
Such information received from another state shall be treated as confidential pursuant to the reciprocal agreement that exists between such other state and the State of Ohio.
(former TX-5-01); Eff
Rule promulgated under: RC 5703.14
This day the Tax Commissioner came on to consider the interchange of information relative to taxation with the State of Kentucky.
Being fully advised in the premises and of the authority vested in him under the provisions of Revised Code 5703.40, and in accordance with Rule 5703-1-01, the Tax Commissioner hereby authorizes the various divisions in the Department of Taxation to interchange information with the Department of Revenue of the State of Kentucky in accordance with such Rule, and to the end that all taxes properly assessable by the Department of Taxation of Ohio and the Department of Revenue of Kentucky be duly assessed.
(former TX-5-02); Eff
Rule promulgated under: RC 5703.14
Pursuant to the provisions of Revised Code 5703.40, the Department of Taxation under the jurisdiction of the Tax Commissioner may exchange, as authorized by law, information with the Federal Government and its instrumentalities.
(former TX-5-03); Eff
Rule promulgated under: RC 5703.14
All existing rules, regulations, information releases, bulletins, directives and orders of the tax commissioner, with respect to all taxes and assessments administered and supervised by such tax commissioner, shall remain in full force and effect until modified, amended or rescinded in accordance with the law .
(A) Domestic corporations, foreign corporations, and those nonprofit corporations organized pursuant to Chapter 1729. of the Revised Code, or organized or operating in a manner similar to that authorized by Chapter 1729. of the Revised Code pursuant to the law of another state or country, which desire to dissolve their charter or surrender their license to transact business in this state must furnish the secretary of state with the receipts, certificates, or other evidence enumerated in division (H) of section 1701.86 or division (C) of section 1703.17 of the Revised Code. Such enumeration includes a receipt, certificate or other evidence showing that:
(1) all franchise taxes have been paid or adequately guaranteed through the year in which the request is made, and
(2) all sales, use and highway use taxes have been paid or adequately guaranteed, and
(3) all personal property taxes accruing up to the date of request for dissolution have been paid.
(B) Under the provisions of division (G) of section 1702.47 of the Revised Code, nonprofit corporations desiring to dissolve their charter must furnish the secretary of state with the receipts, certificates or other evidence enumerated therein. Such enumeration includes a receipt, certificate or other evidence showing that:
(1) all sales, use and highway use taxes have been paid or adequately guaranteed, and
(2) all personal property taxes accruing up to the date of request for dissolution have been paid. If the corporation has no personal property in this state subject to taxation, an affidavit to that effect may be filed in lieu of the receipts or other evidence of tax payment.
Form No. D-5, Application for Certificate of Payment of Ohio Taxes, is prescribed by the Tax Commissioner for the purpose of obtaining a combined certification for sales, use, highway use and franchise taxes. Corporations desiring to dissolve their charter or surrender their license must make application on this form and furnish all of the required information. Forms may be obtained from and should be filed with the department of taxation, with allowance for at least thirty days for processing.
To avoid delay, any delinquent sales, use, highway use and franchise tax returns or reports should accompany the application together with separate certified checks or money orders in payment for each of the taxes due thereon. Failure to initially submit all necessary information, tax returns, and/or payments may result in tax audits and will delay issuance of the desired certificate.
Corporations having a license or charter to conduct business in Ohio, or owning or using all or part of their capital or property in Ohio, on the first day of January of any calendar year are subject to the Ohio corporation franchise tax for such calendar year.
However, in the event a corporation undergoing dissolution has ceased all business activities in Ohio, completed the retirement of all outstanding shares of stock, the liquidation and distribution of assets, the filing of application Form D-5 with the department of taxation, and all other steps toward dissolution, except those steps precluded by the fact that the certificates herein provided for have not been issued, so that it remains licensed or chartered with the secretary of state on the following first day of January solely because the certificates applied for prior to that date have not been issued, the basic franchise tax liability of such corporation for the subsequent year shall be the minimum fee prescribed by section 5733.06 of the Revised Code. As used in this paragraph, a corporation undergoing dissolution does not include a transferor that makes a transfer to a taxpayer meeting the requirements of division (B)(3) of section 5733.053 of the Revised Code.
For the purpose of guaranteeing the payment of any franchise, sales, use and highway use taxes which may be due from a pending audit or assessment, either a cash bond or surety bond issued by a bonding agency licensed to do business in Ohio may be posted with the tax commissioner by the applicant. The amount shall be determined by the tax commissioner. Such bond shall remain in force until all taxes have been paid, whereupon a written notice to that effect shall be provided by the tax commissioner.
Upon determining that all sales, use, highway use and franchise taxes have been paid or adequately guaranteed, the tax commissioner will issue a combined certificate (Form No. D-2) to the applicant. Failure to pay or adequately guarantee any of these taxes will prevent issuance of this certificate.
It is the responsibility of the applicant to obtain a personal property tax release certificate from the treasurer of each county in which the applicant had taxable personal property. It is the responsibility of the county officials to determine that all personal property taxes have been paid.
Pursuant to division (B) of section 5709.21 of the Revised Code, the tax commissioner hereby prescribes the manner and form of applying for the certification of exempt facilities under sections 5709.20 to 5709.27 of the Revised Code.
(A) Application for certification of an exempt facility as defined in division (E) of section 5709.20 of the Revised Code shall be made by the person owning the facility at the time of application. The application shall contain plans and specifications of the property, including all materials incorporated or to be incorporated into the property and the associated costs of the materials, and a descriptive list of all equipment acquired or to be acquired by the applicant for the exempt facility and the associated costs of the equipment. The application shall include details of how the applicant determined the cost of any auxiliary property under section 5709.21 of the Revised Code.
The application shall be accompanied by the nonrefundable fee required by section 5709.212 of the Revised Code. Section 5709.212 of the Revised Code provides that until such fee is paid, the application is not complete, and the applicant is not entitled to any tax exemption under section 5709.25 of the Revised Code.
An exemption will be allowed only for those exempt facility costs covered by the fee paid. If the exempt facility costs exceed those covered by the fee paid, a certificate will not be issued for the excess amount until the additional fee is paid.
An application is filed when a properly completed application is received by the commissioner. An application not accompanied by the fee, documents, and information required is not properly completed until the fee, documents, and information are received. The commissioner will provide the applicant at least thirty days after a request is sent to complete the application. Thereafter, the commissioner may deny issuing a certificate because the application is not properly completed. A final determination reflecting such denial may be issued without obtaining the opinion of the director of environmental protection or the director of development. The final determination is subject to appeal under section 5717.02 of the Revised Code. Once the denial becomes final, the applicant must file a new application if the applicant still wants a certificate to be issued.
An applicant generally must file a separate application for each location where the owner has facilities for which certification is sought and for every county where a facility is located. However, under authority of division (D) of section 5709.21 of the Revised Code, the commissioner may allow an applicant to file one application that applies to multiple facilities in the same county if the facilities are the same or substantially similar. In addition, a single application, listing each owner and its percentage of ownership, shall be filed for a jointly owned facility; if at any time before or after issuance of an exempt facility certificate the percentages of ownership change, the joint owners subsequent to the change shall forthwith notify the commissioner in writing of the change.
(B) As soon as is practicable after receipt of a properly completed application, the tax commissioner will provide a copy of the application and any accompanying documentation to the county auditor of the county in which the facility is located. The commissioner will include a statement showing an estimate of what the taxable value of, and taxes on, the facility would be if the facility were taxable so that the auditor may proceed in accordance with division (A) of section 5709.23 of the Revised Code. For purposes of the estimate of taxable value, the commissioner will use the cost shown on the application times the appropriate listing percentage.
(C) The tax commissioner will provide a copy of a properly completed application to either the director of environmental protection or the director of development, as appropriate, to obtain the director's opinion concerning the facility. After obtaining the director's opinion and considering any additional information requested, the commissioner will ascertain if a certificate should be issued in whole or in part or denied.
The commissioner will give written notice of the proposed finding to the applicant and the appropriate county auditor. If the applicant or the county auditor desires a reconsideration of the proposed finding, either person may file a written request for reconsideration with the commissioner within sixty days after the notice was sent.
Either person may include a request that the commissioner conduct a hearing on the application.
If a hearing has been requested, the commissioner will schedule a hearing and give notice thereof to the applicant, the county auditor, and the appropriate director.
After the hearing, the commissioner will issue a final determination on the application and serve copies of the final determination on the applicant and the appropriate county auditor. The final determination is subject to appeal under section 5717.02 of the Revised Code.
After conclusion of the above proceedings, including exhaustion of any appeal, the commissioner will issue, if applicable, an exempt facility certificate, which will include an exempt facility certificate number. The number shall be used on all tax returns, all sales tax exemption certificates, and all other forms and correspondence pertaining to the facility.
(D) For purposes of audit and examination by employees of the tax commissioner, the taxpayer shall identify separately the exempted portion of a facility on the taxpayer's books and records.
(E) Upon the tax commissioner's own motion or upon receiving a complaint, the commissioner may, at the commissioner's discretion, after giving notice and the opportunity for a hearing to a certificate holder, revoke or modify such certificate in accordance with division (C) of section 5709.22 of the Revised Code.
(F) The requirement under division (E) of section 5709.25 of the Revised Code to file a new application for the addition, enlargement, expansion, or replacement of property at a previously certified exempt facility shall be separately ascertained for each such facility. If the exempt facility is a jointly owned facility, that requirement shall be based on the aggregate costs of all the joint owners of the facility.
The new application shall be accompanied by the nonrefundable fee required for applications filed under division (E) of section 5709.25 of the Revised Code.
Section 5709.212 of the Revised Code provides that until the fee is paid, the application is not complete, and the applicant is not entitled to any tax exemption under section 5709.25 of the Revised Code. A certificate will not be issued for the addition, enlargement, expansion, or replacement until the fee is paid.
(G) In the event of the transfer of an exempt facility certificate as provided by section 5709.27 of the Revised Code, the transferee shall promptly give written notice of the transfer to the commissioner and to the county auditor of the county in which the facility is located. Such written notice shall specify the effective date of the transfer and shall have attached thereto a copy of the instrument of transfer and a copy of the certificate transferred.
(H) As used in section 5709.21 of the Revised Code, "the date of the construction of the facility" means the date on which actual installation or construction of the facility, as set forth by the plans and specifications, is begun, which will result in the completed and operational facility.
(A) As used in this rule:
(1) "Excise tax" means any excise tax, fee, or charge administered by the tax commissioner, including any applicable interest, penalty, or additional charge for failure to timely report or pay such tax, fee, or charge .
(2) "Final tax liability" means the liability for a tax that is no longer on appeal or subject to appeal to the board of tax appeals or a subsequent court.
(B) Pursuant to section 4301.25 of the Revised Code, the tax commissioner may request the liquor control commission to suspend or revoke a permit issued under Chapter 4301. or 4303. of the Revised Code if the holder of the permit has a final tax liability for unpaid excise tax.
(C) This rule is not intended, in any manner, to limit the authority of the tax commissioner in performing the functions conferred upon the commissioner by division (B) of section 4303.26 and division (D) of section 4303.271 of the Revised Code.
Rescinded eff 12-11-03
Five Year Review (FYR) Dates: 11/17/2016
Promulgated Under: 119.03
Statutory Authority: 5703.05
Rule Amplifies: 3734.904, 4303.33, 5728.09, 5735.12, 5743.03, 5743.52, 5753.05
Prior Effective Dates: 7-2-81; 2-1-86; 5-15-89; 2-28-94
As used in this rule, "opinion" means an opinion of the tax commissioner as provided for in section 5703.53 of the Revised Code.
(A) A taxpayer requesting an opinion must:
(1) Submit the request in writing;
(2) Request an "opinion of the tax commissioner;"
(3) State all facts of the activity or transaction for which the opinion is requested;
(4) Identify the parties involved in the activity or transaction about which the opinion is requested;
(5) Set out the specific legal question or questions for which the opinion is requested; and
(a) Be signed by the taxpayer or, if the taxpayer is a corporation, by an officer or employee of the corporation authorized to act on its behalf; or
(b) Be signed by the taxpayer's tax representative if the taxpayer has filed in writing, signed by the taxpayer or, if the taxpayer is a corporation, by an officer or employee of the corporation authorized to act on its behalf, authorization for the tax representative to request such an opinion on behalf of the taxpayer and to answer questions on behalf of the taxpayer for purposes of the request.
(7) If a request is made for an opinion to be confidential, support any request for the opinion to be confidential with a valid reason therefore (e.g. publication of a redacted opinion would still identify the taxpayer or a trade secret of the taxpayer).
(B) Any correspondence that does not meet all of the criteria in paragraph (A) of this rule is general correspondence. A response to general correspondence is not an opinion.
(C) The commissioner may require additional documentation or memoranda in support of a request for an opinion.
(D) The commissioner has the discretion to decline to issue a requested opinion.
(E) An opinion will bear an opinion number and be headed "Opinion of the Tax Commissioner." Any document that does not bear an opinion number and heading is not an opinion.
(F) Any taxpayer who receives an opinion may rely on that opinion and the commissioner must follow that opinion in determining the tax liability of that taxpayer from the date of the issuance of the opinion until any of the following events occurs:
(1) The opinion is specifically revoked in writing and sent to the taxpayer. The effective date of a revocation will be the date it is received by the taxpayer or one year after the issuance of the opinion, whichever is later;
(2) The effective date of any rule of the tax commissioner inconsistent with the opinion;
(3) The effective date of any state or federal statutory amendment or federal rule change that renders the opinion inconsistent with the laws of the state of Ohio or the United States;
(4) The date of any decision concerning the laws of the state of Ohio or the United States by a state or federal court or by the Ohio board of tax appeals decision that renders the opinion inconsistent with the decision;
(5) Any change in the taxpayer's material facts on which the opinion was based; or
(6) The expiration date of the opinion, if specified in the opinion.
(G) An opinion does not bind the commissioner as to the treatment of any transaction or tax liability arising prior to the issuance of the opinion.
(H) An opinion binds the commissioner only with respect to the taxpayer for whom the opinion was issued.
(A) Pursuant to section 5703.056 of the Revised Code, a delivery service company can request to have a delivery service authorized for use to deliver tax payments or tax documents to the tax commissioner, treasurer of state, or the board of tax appeals. "Delivery service" means a specific delivery product offered by a delivery service company and does not constitute all of the delivery products offered by that delivery service company. A delivery service must meet all of the following criteria:
(1) The delivery service is available to the general public;
(2) The delivery service is at least as timely and reliable on a regular basis as the United States postal service;
(3) The delivery service company records electronically to a database kept in the regular course of its business, and marks on the cover in which the payment or document is enclosed, the date on which the payment or document was given to the delivery service company for delivery; and
(4) The delivery service company records electronically to a database kept in the regular course of its business the date on which the payment or document was given by the delivery service company to the person who signed the receipt of delivery and the name of the person who signed the receipt.
(B) If the delivery service meets the above criteria, the delivery service company seeking to have a delivery service approved by the tax commissioner must fill out an application and return it to the department of taxation. Upon verifying the information on the application, the tax commissioner will journalize the decision to deny or accept the delivery service. Such journal entry will be kept in the administrative journal entry volume. A copy of the journal entry shall be mailed to the delivery service company, the treasurer of state, and the board of tax appeals. The denial of a delivery service is subject to the same procedures as set forth in paragraph (C) of this rule.
(C) If the delivery service no longer meets the above criteria, the delivery service company shall notify the tax commissioner that the delivery service no longer meets the criteria listed in paragraph (A) of this rule. The tax commissioner may also revoke the use of the delivery service if the tax commissioner finds that the delivery service no longer meets the above criteria. The tax commissioner shall send by certified mail a notice to the delivery service company whose delivery service the tax commissioner intends to revoke. That person shall have ten days from the receipt of the tax commissioner's notice to contest the revocation by requesting a hearing. The hearing shall be held within ten days of the tax commissioner's receipt of the request. The tax commissioner's determination on the revocation is final and is not subject to further administrative review or appeal. The removal of the product from the list of authorized delivery services will be reflected in a journal entry kept in the administrative journal entry volume. A copy of the journal entry shall be mailed to the delivery service company, the treasurer of state, and the board of tax appeals.
(D) If a delivery service is revoked from the list of authorized delivery service products by the tax commissioner; such person providing the delivery service shall not be allowed to reapply for authorization of that delivery service for a period of one year.
(E) The effective date of the revocation of a delivery service is sixty days from the date of the journal entry issued pursuant to paragraph (C) of this rule.
(F) A list of authorized delivery service products and any delivery service products that have been revoked shall be published on the Ohio department of taxation's web page. A list of authorized delivery service products and any that have been revoked shall also be available from the Ohio department of taxation's office of chief counsel.
(1) "Absence" means a period of time declared in writing as such by the commissioner during which the commissioner is away from the office of commissioner and the commissioner ascertains the duties and functions of the commissioner cannot be adequately performed by the commissioner. "Absence" does not include a "vacancy in the office of commissioner."
(2) "Disability" means a medically determinable physical or mental impairment which can reasonably be expected to result in death or to be of long-continued and indefinite duration and which has been declared as such by a licensed medical professional.
(3) "Recusal" means the act of disqualifying oneself or withdrawing oneself from performing a duty or function as commissioner.
(4) "Vacancy in the office of commissioner" means that the commissioner has died, has formally resigned, or has been formally terminated from the position of commissioner and that a new commissioner has not been appointed by the governor on either an interim or permanent basis. "Vacancy in the office of commissioner" does not include an "absence."
(5) "Act as commissioner" means performing the powers, duties and functions of the commissioner and exercising the privileges and immunities of the commissioner including, but not limited to, the powers, duties, functions, privileges, and immunities of the commissioner described in Chapter 5703. of the Revised Code.
(6) "Familial relationship" means a relationship in which the commissioner is a spouse, sibling, natural or adoptive parent, or natural or adoptive child of a taxpayer or of a taxpayer's representative.
(7) "Designated deputy" means the deputy commissioner or deputy commissioners designated to act as commissioner by the commissioner pursuant to section 5703.05(I) of the Revised Code and pursuant to paragraph (B) of this rule.
(B) If the commissioner designates not more than two deputy commissioners to act as commissioner pursuant to section 5703.05(I) of the Revised Code, such designation shall be accomplished by journal entry. In the event that more than one deputy commissioner is designated, the journal entry shall prescribe the order of precedence between the two deputy commissioners. The commissioner may vacate such journal entry at any time. In the event that the commissioner vacates such journal entry, the commissioner may, by journal entry, designate a different deputy commissioner or deputy commissioners to act as commissioner pursuant to section 5703.05(I) of the Revised Code.
(C) In the event of disability of the commissioner or vacancy in the office of commissioner, it shall be the duty of the designated deputy to act as commissioner and to assume the administration of such office. The designated deputy shall act as commissioner only until, in the event of disability, the disability no longer exists, or, in the event of a vacany in the office of commissioner, a new commissioner is appointed by the governor. Such actions shall be performed in the name of the designated deputy.
(D) In the event of a recusal of the commissioner, it shall be the duty of the designated deputy to act as commissioner and to assume the administration of such office only to the extent as is necessary for such designated deputy to resolve any matter over which the commissioner is or was not able to act as commissioner due to the recusal of the commissioner. Such actions shall be performed in the name of the designated deputy.
(E) In the event of absence of the commissioner, it shall be the duty of the designated deputy to act as commissioner and to assume the administration of such office only to the extent as is necessary for such designated deputy to resolve any matter over which the commissioner is or was not able to act as commissioner due to the absence of the commissioner. Such actions shall be made under the name of the tax commissioner and not the designated deputy.
(F) If the commissioner has a familial relationship with a taxpayer or a representative of a taxpayer such that acting as commissioner on a matter involving that taxpayer or representative would create a conflict of interest in violation of section 102.03 the Revised Code, the commissioner shall recuse himself or herself from acting as commissioner with respect to that matter.
(G) When there has been a recusal by the tax commissioner on a matter, the actions of an employee with respect to that matter shall be performed under the authority of the designated deputy. In such cases, where it would normally be necessary for that employee to communicate with the commissioner, it shall be the duty of that employee to communicate with the designated deputy, and it shall be the duty of the designated deputy to act as commissioner with respect to that matter.
(H) This rule shall not be construed to supercede the governor's authority to appoint a commissioner or to remove a commissioner as otherwise provided by law. Any designation made by the commissioner under paragraph (B) of this rule terminates when a new commissioner or a new governor is placed into office.