5739.035 Situs of sales.

This version is in effect until 01-01-2010

This section only applies to sales that may be sitused under this section pursuant to division (B) of section 5739.033 of the Revised Code.

(A) Except as otherwise provided in this section, the situs of all sales is the vendor’s place of business.

(1) If the consumer or the consumer’s agent takes possession of the tangible personal property at a place of business of the vendor where the purchase contract or agreement was made, the situs of the sale is that place of business.

(2) If the consumer or the consumer’s agent takes possession of the tangible personal property other than at a place of business of the vendor, or takes possession at a warehouse or similar facility of the vendor, the situs of the sale is the vendor’s place of business where the purchase contract or agreement was made or the purchase order was received.

(3) If the vendor provides a service specified in division (B)(3)(a), (b), (c), (d), (n), (o), (q), (r), or (s) of section 5739.01 or makes a sale specified in division (B)(8) of section 5739.01 of the Revised Code, the situs of the sale is the vendor’s place of business where the service is performed or the contract or agreement for the service was made or the purchase order was received.

(B) If the vendor is a transient vendor as specified in division (B) of section 5739.17 of the Revised Code, the situs of the sale is the vendor’s temporary place of business or, if the transient vendor is the lessor of titled motor vehicles, titled watercraft, or titled outboard motors, at the location where the lessee keeps the leased property.

(C) If the vendor makes sales of tangible personal property from a stock of goods carried in a motor vehicle, from which the purchaser makes selection and takes possession, or from which the vendor sells tangible personal property the quantity of which has not been determined prior to the time the purchaser takes possession, the situs of the sale is the location of the motor vehicle when the sale is made.

(D) If the vendor is a delivery vendor as specified in division (D) of section 5739.17 of the Revised Code, the situs of the sale is the place where the tangible personal property is delivered, where the leased property is used, or where the service is performed or received.

(E) If the vendor provides a service specified in division (B)(3)(e), (g), (h), (j), (k), (l), (m), (p), (t), or (u) of section 5739.01 of the Revised Code, the situs of the sale is the location of the consumer where the service is performed or received.

(F) If the vendor provides lodging to transient guests as specified in division (B)(2) of section 5739.01 of the Revised Code, the situs of the sale is the location where the lodging is located.

(G) If the vendor sells a warranty, maintenance or service contract, or similar agreement as specified in division (B)(7) of section 5739.01 of the Revised Code and the vendor is a delivery vendor, the situs of the sale is the location of the consumer. If the vendor is not a delivery vendor, the situs of the sale is the vendor’s place of business where the contract or agreement was made, unless the warranty or contract is a component of the sale of a titled motor vehicle, titled watercraft, or titled outboard motor, in which case the situs of the sale is the county of titling.

(H) Except as otherwise provided in this division, if the vendor sells a prepaid authorization number or a prepaid telephone calling card, the situs of the sale is the vendor’s place of business and shall be taxed at the time of sale. If the vendor sells a prepaid authorization number or prepaid telephone calling card through a telephone call, electronic commerce, or any other form of remote commerce, the situs of the sale is the consumer’s shipping address, or, if there is no item shipped, at the consumer’s billing address.

(I) Division (I) of this section applies only if the tax commissioner makes the certification provided under section 5740.10 of the Revised Code.

(1) In each delivery sale by a vendor permitted to situs its sales under this section, the vendor shall clearly indicate on the invoice or other similar document provided to the purchaser at the time of the sale that the vendor is a vendor permitted to situs its sales under this section.

(2) A purchaser that receives tangible personal property or services in a delivery sale from a vendor permitted to situs its sales under this section may claim a refund of the tax the vendor collected and remitted on the sale in an amount equal to the excess of the tax collected and remitted over the tax that would have been due if the sale had been sitused to the tax jurisdiction in which the purchaser received the property or service.

A refund is authorized under this division only if the invoice or other similar document provided to the purchaser at the time of the sale includes the notice required under division (I)(1) of this section.

Refunds shall be filed directly with the tax commissioner and claimed in the manner prescribed by section 5739.07 of the Revised Code.

(3) A purchaser of tangible personal property from a vendor permitted to situs its sales under this section that removes the property from the tax jurisdiction in which the resident received the property is liable for additional tax in an amount equal to the excess of the tax that would have been due on the sale if the sale had been sitused to the tax jurisdiction to which the purchaser removed the property over the tax that the vendor collected and remitted on the sale.

(4) Nothing in this section relieves a person claiming to be authorized to situs sales under this section, but not so authorized, from liability for tax, penalty, interest, or additional charges imposed under this chapter for failure to collect the amount of tax lawfully due applying the situsing provisions of divisions (C) to (I) of section 5739.033 of the Revised Code.

(5) For the purposes of division (I) of this section, “delivery sale” has the same meaning as in section 5739.033 of the Revised Code, and “tax jurisdiction” has the same meaning as in section 5739.24 of the Revised Code.

Effective Date: 04-29-2005; 06-02-2005; 2007 HB119 06-30-2007; 2007 HB157 12-21-2007

This version is effective 01-01-2010

5739.035 Repealed.

Effective Date: 2008 HB429 01-01-2010