Ohio § 5739.03

§ 5739.03.

(A) Except as provided in section 5739.05 or section 5739.051 of the Revised Code , the tax imposed by or pursuant to section 5739.02 , 5739.021 , 5739.023 , or 5739.026 of the Revised Code shall be paid by the consumer to the vendor, and each vendor shall collect from the

consumer, as a trustee for the state of Ohio, the full and exact amount of the tax

payable on each taxable sale, in the manner and at the times provided as follows: (1) If the price is, at or prior to the provision of the service or the delivery of possession

of the thing sold to the consumer, paid in currency passed from hand to hand by the

consumer or the consumer's agent to the vendor or the vendor's agent, the vendor or

the vendor's agent shall collect the tax with and at the same time as the price; (2) If the price is otherwise paid or to be paid, the vendor or the vendor's agent shall,

at or prior to the provision of the service or the delivery of possession of the thing

sold to the consumer, charge the tax imposed by or pursuant to section 5739.02 , 5739.021 , 5739.023 , or 5739.026 of the Revised Code to the account of the consumer, which amount shall be collected by the vendor from

the consumer in addition to the price.  Such sale shall be reported on and the amount of the tax applicable thereto shall

be remitted with the return for the period in which the sale is made, and the amount

of the tax shall become a legal charge in favor of the vendor and against the consumer. (B)(1)(a) If any sale is claimed to be exempt under division (E) of section 5739.01 of the Revised Code or under section 5739.02 of the Revised Code , with the exception of divisions (B)(1) to (11), (28), (48), (55), (59), or (62)

of section 5739.02 of the Revised Code, the consumer must provide to the vendor, and

the vendor must obtain from the consumer, a certificate specifying the reason that

the sale is not legally subject to the tax.  The certificate shall be in such form, and shall be provided either in a hard copy

form or electronic form, as the tax commissioner prescribes. (b) A vendor that obtains a fully completed exemption certificate from a consumer is

relieved of liability for collecting and remitting tax on any sale covered by that

certificate.  If it is determined the exemption was improperly claimed, the consumer shall be

liable for any tax due on that sale under section 5739.02, 5739.021, 5739.023, or

5739.026 or Chapter 5741. of the Revised Code.  Relief under this division from liability does not apply to any of the following: (i) A vendor that fraudulently fails to collect tax; (ii) A vendor that solicits consumers to participate in the unlawful claim of an exemption; (iii) A vendor that accepts an exemption certificate from a consumer that claims an exemption

based on who purchases or who sells property or a service, when the subject of the

transaction sought to be covered by the exemption certificate is actually received

by the consumer at a location operated by the vendor in this state, and this state

has posted to its web site an exemption certificate form that clearly and affirmatively

indicates that the claimed exemption is not available in this state; (iv) A vendor that accepts an exemption certificate from a consumer who claims a multiple

points of use exemption under division (D) of section 5739.033 of the Revised Code , if the item purchased is tangible personal property, other than prewritten computer

software. (2) The vendor shall maintain records, including exemption certificates, of all sales

on which a consumer has claimed an exemption, and provide them to the tax commissioner

on request. (3) The tax commissioner may establish an identification system whereby the commissioner

issues an identification number to a consumer that is exempt from payment of the tax.  The consumer must present the number to the vendor, if any sale is claimed to be

exempt as provided in this section. (4) If no certificate is provided or obtained within ninety days after the date on which

such sale is consummated, it shall be presumed that the tax applies.  Failure to have so provided or obtained a certificate shall not preclude a vendor,

within one hundred twenty days after the tax commissioner gives written notice of

intent to levy an assessment, from either establishing that the sale is not subject

to the tax, or obtaining, in good faith, a fully completed exemption certificate. (5) Certificates need not be obtained nor provided where the identity of the consumer

is such that the transaction is never subject to the tax imposed or where the item

of tangible personal property sold or the service provided is never subject to the

tax imposed, regardless of use, or when the sale is in interstate commerce. (6) If a transaction is claimed to be exempt under division (B)(13) of section 5739.02 of the Revised Code , the contractor shall obtain certification of the claimed exemption from the contractee.  This certification shall be in addition to an exemption certificate provided by

the contractor to the vendor.  A contractee that provides a certification under this division shall be deemed to

be the consumer of all items purchased by the contractor under the claim of exemption,

if it is subsequently determined that the exemption is not properly claimed.  The certification shall be in such form as the tax commissioner prescribes. (7) If a transaction is claimed to be exempt under division (B)(13) of section 5739.02 of the Revised Code , the person that leases a sports facility, as defined in section 307.696 of the Revised Code , wholly owned by a county may provide and sign, on behalf of the county, an exemption

certificate required under this section for that exemption. (C) As used in this division, “ contractee ” means a person who seeks to enter or enters into a contract or agreement with a

contractor or vendor for the construction of real property or for the sale and installation

onto real property of tangible personal property. Any contractor or vendor may request from any contractee a certification of what portion

of the property to be transferred under such contract or agreement is to be incorporated

into the realty and what portion will retain its status as tangible personal property

after installation is completed.  The contractor or vendor shall request the certification by certified mail delivered

to the contractee, return receipt requested.  Upon receipt of such request and prior to entering into the contract or agreement,

the contractee shall provide to the contractor or vendor a certification sufficiently

detailed to enable the contractor or vendor to ascertain the resulting classification

of all materials purchased or fabricated by the contractor or vendor and transferred

to the contractee.  This requirement applies to a contractee regardless of whether the contractee holds

a direct payment permit under section 5739.031 of the Revised Code or provides to the contractor or vendor an exemption certificate as provided under

this section. For the purposes of the taxes levied by this chapter and Chapter 5741. of the Revised

Code, the contractor or vendor may in good faith rely on the contractee's certification.  Notwithstanding division (B) of section 5739.01 of the Revised Code , if the tax commissioner determines that certain property certified by the contractee

as tangible personal property pursuant to this division is, in fact, real property,

the contractee shall be considered to be the consumer of all materials so incorporated

into that real property and shall be liable for the applicable tax, and the contractor

or vendor shall be excused from any liability on those materials. If a contractee fails to provide such certification upon the request of the contractor

or vendor, the contractor or vendor shall comply with the provisions of this chapter

and Chapter 5741. of the Revised Code without the certification.  If the tax commissioner determines that such compliance has been performed in good

faith and that certain property treated as tangible personal property by the contractor

or vendor is, in fact, real property, the contractee shall be considered to be the

consumer of all materials so incorporated into that real property and shall be liable

for the applicable tax, and the construction contractor or vendor shall be excused

from any liability on those materials. This division does not apply to any contract or agreement where the tax commissioner

determines as a fact that a certification under this division was made solely on the

decision or advice of the contractor or vendor. (D) Notwithstanding division (B) of section 5739.01 of the Revised Code , whenever the total rate of tax imposed under this chapter is increased after the

date after a construction contract is entered into, the contractee shall reimburse

the construction contractor for any additional tax paid on tangible property consumed

or services received pursuant to the contract. (E) A vendor who files a petition for reassessment contesting the assessment of tax on

sales for which the vendor obtained no valid exemption certificates and for which

the vendor failed to establish that the sales were properly not subject to the tax

during the one-hundred-twenty-day period allowed under division (B) of this section,

may present to the tax commissioner additional evidence to prove that the sales were

properly subject to a claim of exception or exemption.  The vendor shall file such evidence within ninety days of the receipt by the vendor

of the notice of assessment, except that, upon application and for reasonable cause,

the period for submitting such evidence shall be extended thirty days. The commissioner shall consider such additional evidence in reaching the final determination

on the assessment and petition for reassessment. (F) Whenever a vendor refunds the price, minus any separately stated delivery charge,

of an item of tangible personal property on which the tax imposed under this chapter

has been paid, the vendor shall also refund the amount of tax paid, minus the amount

of tax attributable to the delivery charge.