Chapter 324: UTILITIES SERVICES TAX

324.01 Utilities services tax definitions.

As used in sections 324.01 to 324.12 of the Revised Code:

(A) "Utility" means:

(1) An electric company, gas company, heating company, cooling company, telephone company, or communications company supplying a utility service;

(2) Any municipal corporation, county, or other political subdivision, instrumentality, or agency of the state supplying a utility service;

(3) Any individual, firm, partnership, association, trust, joint-stock company, joint venture, corporation, nonprofit corporation, cooperative, receiver, assignee, trustee in bankruptcy, estate, trustee, or organization of any kind which owns or operates any office building, storeroom building, shopping center, apartment building, apartment hotel, condominium, or other multiple business or dwelling unit, and which sells, furnishes, or delivers a utility service to the tenants or occupants thereof, provided the charge for such utility service is separately stated.

(B) Any individual, firm, partnership, association, trust, joint-stock company, joint venture, corporation, municipal corporation, county, or other political subdivision, instrumentality, or agency of the state, nonprofit corporation, cooperative, receiver, assignee, trustee in bankruptcy, estate, trustee, or organization of any kind:

(1) Is an electric company when supplying electricity for light, heat, cooling, or power purposes to customers within a county levying a utilities service tax;

(2) Is a gas company when supplying artificial gas or natural gas for light, heat, cooling, or power purposes to customers within a county levying a utilities service tax;

(3) Is a heating company when supplying water, steam, or air through pipes or tubing for heating purposes to customers within a county levying a utilities service tax;

(4) Is a cooling company when supplying water, steam, or air through pipes or tubing for cooling purposes to customers within a county levying a utilities service tax;

(5) Is a telephone company when transmitting telephonic messages to, from, or within a county levying a utilities service tax;

(6)

Is a communications company when supplying the services described in section 4931.05 of the Revised Code, other than transmitting telephonic messages, to, from, or within a county levying a utilities service tax.

(C) "Utility service" means the supplying of water, steam, or air through pipes or tubing for heating or cooling purposes to customers within the county, the supplying of electricity, artificial gas, or natural gas to customers within the county, and the transmission of telephonic messages or the supplying of any of the services described in section 4931.05 of the Revised Code when the transmission or supplying originates from and is charged to or is received by and charged to a customer within the county.

(D) "Charge for utility service" means the amount charged to the customer for a utility service without deduction for any discount for early payment but after deducting the amount of any federal excise tax on such utility service, and excluding the amount paid for the purchase of appliances or other merchandise, and the amount paid for the installation of pipes, meters, poles, apparatus, instruments, switchboards, and other facilities by the utility for the purpose of rendering utility service to the customer if the charge therefor is separately stated by the utility in its bill to the customer and is not included in the basic rates charged to customers of the utility.

(E) "Customer" means any individual, firm, partnership, association, trust, joint-stock company, joint venture, corporation, nonprofit corporation, cooperative, receiver, assignee, trustee in bankruptcy, estate, trustee, or organization of any kind receiving utility service from a utility, but does not include the United States, the state, any political subdivision of the state, or any agency or instrumentality of any of them.

(F) "Business" has the same meaning as in division (E) of section 5701.08 of the Revised Code.

Amended by 128th General AssemblyFile No.43, SB 162, §1, eff. 9/13/2010.

Effective Date: 07-26-1991

324.02 Utilities service tax.

For the purpose of providing additional general revenues for the county and paying the expense of administering such levy, any county may levy a county excise tax to be known as the utilities service tax on the charge for every utility service to customers within the county at a rate not to exceed two per cent of such charge. On utility service to customers engaged in business, the tax shall be imposed at a rate of one hundred fifty per cent of the rate imposed upon all other consumers within the county. The tax shall be levied pursuant to a resolution adopted by the board of county commissioners of the county and shall be levied at uniform rates required by this section upon all charges for utility service except as provided in section 324.03 of the Revised Code. The tax shall be levied upon the customer and shall be paid by the customer to the utility supplying the service at the time the customer pays the utility for the service. If the charge for utility service is billed to a person other than the customer at the request of such person, the tax commissioner of the state may, in accordance with section 324.04 of the Revised Code, provide for the levy of the tax against and the payment of the tax by such other person. Each utility furnishing a utility service the charge for which is subject to the tax shall set forth the tax as a separate item on each bill or statement rendered to the customer.

Prior to the adoption of any resolution levying a utilities service tax the board of county commissioners shall conduct two public hearings thereon, the second hearing to be not less than three nor more than ten days after the first. Notice of the date, time, and place of such hearings shall be given by publication in a newspaper of general circulation in the county once a week on the same day of the week for two consecutive weeks or as provided in section 7.16 of the Revised Code. The second publication shall be not less than ten nor more than thirty days prior to the first hearing. No resolution levying a utilities service tax pursuant to this section of the Revised Code shall be effective sooner than thirty days following its adoption and such resolution is subject to a referendum as provided in sections 305.31 to 305.41 of the Revised Code, unless such resolution is adopted as an emergency measure necessary for the immediate preservation of the public peace, health, or safety, in which case it shall go into immediate effect. Such emergency measure must receive an affirmative vote of all of the members of the board of commissioners, and shall state the reasons for such necessity. A resolution may direct the board of elections to submit the question of levying the tax to the electors of the county at the next primary or general election in the county occurring not less than ninety days after such resolution is certified to the board. No such resolution shall go into effect unless approved by a majority of those voting upon it. The tax levied by such resolution shall apply to all bills rendered subsequent to the sixtieth day after the effective date of the resolution. No bills shall be rendered out of the ordinary course of business to avoid payment of the tax.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.29, HB 48, §1, eff. 7/2/2010.

Effective Date: 03-23-1981

324.021 Repealing county permissive tax adopted as emergency.

The question of repeal of a county permissive tax adopted as an emergency measure pursuant to section 324.02 of the Revised Code may be initiated by filing with the board of elections of the county not less than ninety days before the general election in any year a petition requesting that an election be held on such question. Such petition shall be signed by qualified electors residing in the county equal in number to ten per cent of those voting for governor at the most recent gubernatorial election.

After determination by it that such petition is valid, the board of elections shall submit the question to the electors of the county at the next general election. The election shall be conducted, canvassed, and certified in the same manner as regular elections for county offices in the county. Notice of the election shall be published in a newspaper of general circulation in the district once a week for two consecutive weeks prior to the election or as provided in section 7.16 of the Revised Code. If the board of elections operates and maintains a web site, notice of the election also shall be posted on that web site for thirty days prior to the election. The notice shall state the purpose, time, and place of the election. The form of the ballot cast at such election shall be prescribed by the secretary of state. The question covered by such petition shall be submitted as a separate proposition, but it may be printed on the same ballot with any other proposition submitted at the same election other than the election of officers. If a majority of the qualified electors voting on the question of repeal approve the repeal, the result of the election shall be certified immediately after the canvass by the board of elections to the board of county commissioners, who shall thereupon, after the current year, cease to levy the tax.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.29, HB 48, §1, eff. 7/2/2010.

Effective Date: 03-23-1981; 06-01-2006

324.03 Tax exemption.

The utilities service tax shall not apply to the following:

(A) The first five dollars per month of any charge for utility service for each utility service rendered by a utility to a customer;

(B) The supplying of a utility service to a customer for resale; provided, that this division shall not include the supplying of a utility service to a utility as defined in division (A)(3) of section 324.01 of the Revised Code if the utility receiving the service when supplying the service to its customers does not separately state the charge therefor;

(C) The supplying of a utility service through a coin-operated device;

(D) Telephone service, and services described in section 4931.05 of the Revised Code, to or from a point outside the state for which a separate charge is made;

(E) The supplying of a utility service not within the taxing power of the county under the constitution of the United States or the constitution of this state;

(F) The supplying of a utility service to a person engaged in business, for use or consumption in the production of tangible personal property.

For the purpose of the proper administration of the utilities service tax and to prevent the evasion of the tax, it is presumed that any supplying of utility service is subject to the tax until the contrary is shown.

Amended by 128th General AssemblyFile No.43, SB 162, §1, eff. 9/13/2010.

Effective Date: 12-12-1967

324.04 Rules for uniform administration of the utilities service tax.

In order to promote uniform administration of the utilities service tax by counties levying such tax, the tax commissioner of the state shall adopt and promulgate regulations not inconsistent with sections 324.01 to 324.12 , inclusive, of the Revised Code for the administration and enforcement of the levy and collection of the tax, including provisions for refunds of the tax, and shall prescribe the form of returns to be made by utilities pursuant to section 324.05 of the Revised Code.

Effective Date: 12-12-1967

324.05 Quarterly return showing aggregate amount of charges for utility service made by it to customers.

Each utility supplying a utility service subject to the utilities service tax shall on or before the twentieth day of the month following the close of each calendar quarter make a return to the auditor of the county showing the aggregate amount of charges for utility service made by it to customers in the county during the preceding calendar quarter, the aggregate amount of utilities service tax due thereon, less the tax included in the accounts charged off as uncollectible by the utility on its own books, and such other information as may be prescribed by the tax commissioner for the proper administration of sections 324.01 to 324.12 , inclusive, of the Revised Code. Each utility shall at the time of making such return pay to the county the amount of utilities service tax shown on such return to be due less an amount equal to one-half of one mill times the taxable charges for utility services which amount shall be retained by the utility as reimbursement for its expenses of billing and collecting the tax.

The auditor of any county levying a utilities service tax, for good cause shown and in accordance with rules and regulations adopted by the tax commissioner, may extend the time for filing a return and may permit a utility to file returns and pay the tax on an annual basis.

Each utility shall keep complete and accurate books and records of charges made for utility services, together with a record of the tax collected thereon. Such books and records shall be open during business hours to the inspection of the tax commissioner and the auditor of the county levying a utilities service tax, or their duly authorized agents or employees, and shall be preserved for a period of four years, unless the tax commissioner, in writing, consents to their destruction within that period, or by order requires that they be kept longer.

Effective Date: 12-12-1967

324.06 Utility liable for taxes collected.

Any utility which collects a tax imposed pursuant to section 324.02 of the Revised Code and fails to remit the same to the county as prescribed is personally liable for any amount collected which it failed to remit. The county auditor may make an assessment against such utility based upon any information in his possession.

If any utility fails to bill the tax to any customer or any customer fails to pay the tax imposed pursuant to section 324.02 of the Revised Code, on any charge for utility service subject to the tax, such utility or customer is personally liable for the amount of the tax applicable to the charge for utility service. The county auditor may make an assessment against either the utility or the customer, as the facts may require, based upon any information in his possession.

An assessment against a utility in cases where the tax imposed pursuant to section 324.02 of the Revised Code has not been billed to a customer does not discharge the customer's liability to reimburse the utility for the tax applicable to the charge for utility service.

In each case the county auditor shall give to the utility or customer assessed written notice of such assessment. Such notice may be served upon the utility or customer assessed personally or by registered or certified mail. An assessment issued against either, pursuant to the provisions of this section, shall not be considered an election of remedies, nor a bar to an assessment against the other for the tax applicable to the same charge for utility service, provided that no assessment shall be issued against any utility or customer for the tax due on a particular charge for utility service if said tax has actually been paid by another.

The county auditor may make an assessment against any utility or customer which fails to file a return required by section 324.05 or 324.08 of the Revised Code or fails to remit the proper amount of tax due. Notice of such assessment shall be given in the manner prescribed in this section.

Unless the utility or customer to whom said notice of assessment is directed files with the county auditor within thirty days after service thereof, either personally or by registered or certified mail, a petition in writing, verified under oath by said utility, customer, or his authorized agent, having knowledge of the facts, setting forth with particularity the items of said assessment objected to, together with the reasons for such objections, said assessment shall become conclusive and the amount thereof shall be due and payable, from the utility or customer so assessed, to the county treasurer. When a petition for reassessment is filed, the county auditor shall assign a time and place for the hearing of same and shall notify the petitioner thereof by registered or certified mail, but the county auditor may continue the hearings from time to time if necessary.

A penalty of fifteen per cent shall be added to the amount of every assessment made under this section. The rules and regulations adopted pursuant to section 324.04 of the Revised Code may provide for the remission of penalties added to assessments made under this section.

When any utility or customer files a petition for reassessment as provided in this section, the assessment made by the county auditor, together with penalties thereon, shall become due and payable within three days after notice of the finding made at the hearing has been served, either personally or by registered or certified mail, upon the party assessed.

The utility or customer may appeal from an assessment, after it is due and payable, to the board of tax appeals in the same time and manner as that provided in section 5717.02 of the Revised Code for appeals from final determinations of the tax commissioner except that written notice of the appeal shall be filed with the county auditor rather than the tax commissioner and the auditor shall certify to the board of tax appeals a transcript of the record of the proceedings before him.

After the expiration of the period within which the utility or customer assessed may appeal to the board of tax appeals, a certified copy of the entry of the county auditor making the assessment final may be filed in the office of the clerk of the court of common pleas in the county where the assessment was made.

The clerk, immediately upon the filing of such entry, shall enter a judgment for the county against the utility or customer in the amount shown on the entry. The judgment may be filed by the clerk in a loose-leaf book entitled "special judgments for utilities service tax."

From the date of the filing of the entry in the clerk's office, the assessment, which includes taxes and penalty, shall bear the same rate of interest and has the same effect as other judgments. Execution shall issue upon such judgment upon request of the county auditor and all laws applicable to sales on execution shall be applicable to sales made under such judgments.

All money collected by the county auditor under this section shall be paid to the county treasurer, and when paid shall be considered as revenue arising from the tax imposed pursuant to section 324.02 of the Revised Code.

Effective Date: 12-12-1967

324.07 Period of assessment against utility or customer.

(A) No assessment shall be made or issued against a utility or customer for any tax imposed pursuant to section 324.02 of the Revised Code more than four years after the return date for the period in which the sale or purchase was made, or more than four years after the return for such period is filed, whichever is later. This division does not bar an assessment:

(1) When the county auditor has substantial evidence of amounts of taxes collected by a utility from customers on charges for utility services which were not returned to the county;

(2) When the utility assessed failed to file a return as required by section 324.05 of the Revised Code.

(B) No assessments shall be made or issued against a utility or customer for any tax imposed pursuant to section 324.02 of the Revised Code for any period during which there was in full force and effect a rule or regulation of the tax commissioner under or by virtue of which the collection or payment of any such tax was not required. This division does not bar an assessment when the county auditor has substantial evidence of amounts of taxes collected by a utility from customers on charges for utility services which were not returned to the county.

Effective Date: 12-12-1967

324.08 Change of ownership.

If any utility or customer liable for any tax levied pursuant to sections 324.01 to 324.12 , inclusive, of the Revised Code, sells his business or stock of merchandise, or quits his business, the taxes, interest, and penalties imposed pursuant to such sections on the supplying of a utility service prior to that time shall become due and payable immediately, and the utility or customer shall make a final return to the auditor of each county with respect to which any tax, interest, or penalty is due within fifteen days after the date of selling or quitting business. The utility or customer shall give to his successor and file with the tax commissioner an affidavit containing a statement of all such taxes, interest, and penalties which are due, and his successor shall withhold a sufficient amount of the purchase money to cover the amount of such taxes, interest, and penalties due and unpaid as shown on the affidavit until the former owner produces a receipt from the auditor of each county to which such taxes, interest, and penalty were due showing that the same have been paid, or a certificate indicating that no taxes are due. If the purchaser of the business or stock of goods fails to withhold the purchase money as required by this section, he is personally liable for the taxes, interest, and penalties accrued and unpaid during the operation of the business by the former owner.

Effective Date: 12-12-1967

324.09 Prohibiting failure to bill full and exact tax.

No utility shall fail to bill the full and exact tax as required by sections 324.01 to 324.12 , inclusive, of the Revised Code, or fail to comply with such sections and the rules and regulations of the tax commissioner, or, except as expressly authorized by such sections, rules, and regulations, refund, remit, or rebate, to a customer, either directly or indirectly and, by whatsoever means, any of the tax levied pursuant to section 324.02 of the Revised Code, or make in any form of advertising, verbal or otherwise, any statements which might imply that it is absorbing the tax for the customer by an adjustment of charges or furnishing utility service for a charge including the tax, or rebating the tax in any other manner.

Effective Date: 12-12-1967

324.10 Refund of illegal or erroneous payments.

The county treasurer of a county levying a utilities service tax shall refund any amount of such tax paid illegally or erroneously or paid on any illegal or erroneous assessment where the utility or customer claiming such refund has not otherwise been reimbursed. Applications for refund shall be filed with the county auditor, on a form prescribed by the tax commissioner, within ninety days from the date it is ascertained that the assessment or payment was illegal or erroneous; provided, that in any event such application for refund must be filed with the county auditor within four years from the date of the illegal or erroneous payment of the tax. Upon receipt of such application the county auditor shall determine the amount of refund due and shall draw a warrant for such amount on the county treasurer to the utility or customer claiming such refund.

Effective Date: 12-12-1967

324.11 Allocating and disbursing tax proceeds.

The funds collected by a county levying a utilities service tax pursuant to sections 324.01 to 324.12 , inclusive, of the Revised Code shall be allocated and disbursed as follows:

(A) First, for payment of the costs incurred by the county in the administration and enforcement of the tax;

(B) The balance remaining after payment of the expenses referred to in division (A) of this section shall be deposited in the county general fund to be expended for any purpose for which general fund moneys of the county may be used, including the acquisition or construction of permanent improvements, or in the bond retirement fund for the payment of debt service charges on notes or bonds of the county issued for the acquisition or construction of permanent improvements. The amounts to be deposited in each of such funds shall be determined by the board of county commissioners.

Effective Date: 12-12-1967

324.12 No preemption of county power to tax.

The levy of any excise, income, or property tax by the state or by any political subdivision thereof shall not be construed as preempting the power of a county to levy a utilities service tax pursuant to sections 324.01 to 324.12, inclusive, of the Revised Code.

Effective Date: 12-12-1967

324.99 Penalty.

(A) Whoever violates section 324.02 of the Revised Code shall be fined not less than fifty nor more than one hundred dollars for a first offense; for each subsequent offense, such fine shall be not less than one hundred nor more than two hundred dollars.

(B) Whoever violates section 324.05 or section 324.09 of the Revised Code, or who files a false affidavit or fails to file an affidavit required by section 324.08 of the Revised Code, shall be fined not less than two hundred fifty nor more than five hundred dollars for each offense.

Effective Date: 12-12-1967