Ohio § 5741.01

§ 5741.01.

As used in this chapter: (A) “ Person ” includes individuals, receivers, assignees, trustees in bankruptcy, estates, firms,

partnerships, associations, joint-stock companies, joint ventures, clubs, societies,

corporations, business trusts, governments, and combinations of individuals of any

form. (B) “ Storage ” means and includes any keeping or retention in this state for use or other consumption

in this state. (C) “ Use ” means and includes the exercise of any right or power incidental to the ownership

of the thing used.  A thing is also “ used ” in this state if its consumer gives or otherwise distributes it, without charge,

to recipients in this state. (D) “ Purchase ” means acquired or received for a consideration, whether such acquisition or receipt

was effected by a transfer of title, or of possession, or of both, or a license to

use or consume;  whether such transfer was absolute or conditional, and by whatever

means the transfer was effected;  and whether the consideration was money, credit,

barter, or exchange.  Purchase includes production, even though the article produced was used, stored,

or consumed by the producer.  The transfer of copyrighted motion picture films for exhibition purposes is not

a purchase, except such films as are used solely for advertising purposes. (E) “ Seller ” means the person from whom a purchase is made, and includes every person engaged

in this state or elsewhere in the business of selling tangible personal property or

providing a service for storage, use, or other consumption or benefit in this state;

 and when, in the opinion of the tax commissioner, it is necessary for the efficient

administration of this chapter, to regard any salesperson, representative, peddler,

or canvasser as the agent of a dealer, distributor, supervisor, or employer under

whom the person operates, or from whom the person obtains tangible personal property,

sold by the person for storage, use, or other consumption in this state, irrespective

of whether or not the person is making such sales on the person's own behalf, or on

behalf of such dealer, distributor, supervisor, or employer, the commissioner may

regard the person as such agent, and may regard such dealer, distributor, supervisor,

or employer as the seller. Except as provided in sections 5741.071 and 5747.072 of the Revised Code , a marketplace facilitator shall be treated as the “seller” with respect to all sales

facilitated by the marketplace facilitator on behalf of one or more marketplace sellers

on and after the first day of the first month that begins at least thirty days after

the marketplace facilitator first has substantial nexus with this state.  Otherwise, “ seller ” does not include any person to the extent the person provides a communications medium,

such as, but not limited to, newspapers, magazines, radio, television, or cable television,

by means of which sellers solicit purchases of their goods or services. (F) “ Consumer ” means any person who has purchased tangible personal property or has been provided

a service for storage, use, or other consumption or benefit in this state.  “Consumer” does not include a person who receives, without charge, tangible personal

property or a service. A person who performs a facility management or similar service contract for a contractee

is a consumer of all tangible personal property and services purchased for use in

connection with the performance of such contract, regardless of whether title to any

such property vests in the contractee.  The purchase of such property and services is not subject to the exception for resale

under division (E) of section 5739.01 of the Revised Code . (G)(1) “Price,” except as provided in divisions (G)(2) to (6) of this section, has the same

meaning as in division (H)(1) of section 5739.01 of the Revised Code . (2) In the case of watercraft, outboard motors, or new motor vehicles, “price” has the

same meaning as in divisions (H)(2) and (3) of section 5739.01 of the Revised Code. (3) In the case of a nonresident business consumer that purchases and uses tangible personal

property outside this state and subsequently temporarily stores, uses, or otherwise

consumes such tangible personal property in the conduct of business in this state,

the consumer or the tax commissioner may determine the price based on the value of

the temporary storage, use, or other consumption, in lieu of determining the price

pursuant to division (G)(1) of this section.  A price determination made by the consumer is subject to review and redetermination

by the commissioner. (4) In the case of tangible personal property held in this state as inventory for sale

or lease, and that is temporarily stored, used, or otherwise consumed in a taxable

manner, the price is the value of the temporary use.  A price determination made by the consumer is subject to review and redetermination

by the commissioner. (5) In the case of tangible personal property originally purchased and used by the consumer

outside this state, and that becomes permanently stored, used, or otherwise consumed

in this state more than six months after its acquisition by the consumer, the consumer

or the commissioner may determine the price based on the current value of such tangible

personal property, in lieu of determining the price pursuant to division (G)(1) of

this section.  A price determination made by the consumer is subject to review and redetermination

by the commissioner. (6) If a consumer produces tangible personal property for sale and removes that property

from inventory for the consumer's own use, the price is the produced cost of that

tangible personal property. (H) “ Nexus with this state ” means that the seller engages in continuous and widespread solicitation of purchases

from residents of this state or otherwise purposefully directs its business activities

at residents of this state. (I)(1) “ Substantial nexus with this state ” means that the seller has sufficient contact with this state, in accordance with

Section 8 of Article I of the Constitution of the United States , to allow the state to require the seller to collect and remit use tax on sales of

tangible personal property or services made to consumers in this state. (2) “ Substantial nexus with this state ” is presumed to exist when the seller does any of the following: (a) Uses an office, distribution facility, warehouse, storage facility, or similar place

of business within this state, whether operated by the seller or any other person,

other than a common carrier acting in its capacity as a common carrier. (b) Regularly uses employees, agents, representatives, solicitors, installers, repairers,

salespersons, or other persons in this state for the purpose of conducting the business

of the seller or either to engage in a business with the same or a similar industry

classification as the seller selling a similar product or line of products as the

seller, or to use trademarks, service marks, or trade names in this state that are

the same or substantially similar to those used by the seller. (c) Uses any person, other than a common carrier acting in its capacity as a common carrier,

in this state for any of the following purposes: (i) Receiving or processing orders of the seller's goods or services; (ii) Using that person's employees or facilities in this state to advertise, promote,

or facilitate sales by the seller to customers; (iii) Delivering, installing, assembling, or performing maintenance services for the seller's

customers; (iv) Facilitating the seller's delivery of tangible personal property to customers in

this state by allowing the seller's customers to pick up property sold by the seller

at an office, distribution facility, warehouse, storage facility, or similar place

of business. (d) Makes regular deliveries of tangible personal property into this state by means other

than common carrier. (e) Has an affiliated person that has substantial nexus with this state. (f) Owns tangible personal property that is rented or leased to a consumer in this state,

or offers tangible personal property, on approval, to consumers in this state. (g) Has gross receipts in excess of one hundred thousand dollars in the current or preceding

calendar year from the sale of tangible personal property for storage, use, or consumption

in this state or from providing services the benefit of which is realized in this

state. (h) Engages, in the current or preceding calendar year, in two hundred or more separate

transactions selling tangible personal property for storage, use, or consumption in

this state or providing services the benefit of which is realized in this state. (3) A seller presumed to have substantial nexus with this state under divisions (I)(2)(a)

to (f), (g), and (h) of this section may rebut that presumption by demonstrating that

activities described in any of those divisions that are conducted by a person in this

state on the seller's behalf are not significantly associated with the seller's ability

to establish or maintain a market in this state for the seller's sales. (4) A marketplace facilitator is presumed to have substantial nexus with this state if

either of the following apply in the current or preceding calendar year: (a) The aggregate gross receipts derived from sales of tangible personal property for

storage, use, or consumption in this state or services the benefit of which is realized

in this state, including sales made by the marketplace facilitator on its own behalf

and sales facilitated by the marketplace facilitator on behalf of one or more marketplace

sellers, exceed one hundred thousand dollars; (b) The marketplace facilitator engages in on its own behalf, or facilitates on behalf

of one or more marketplace sellers, two hundred or more separate transactions selling

tangible personal property for storage, use, or consumption in this state or services

the benefit of which is realized in this state. (5) A seller that does not have substantial nexus with this state, and any affiliated

person of the seller, before selling or leasing tangible personal property or services

to a state agency, shall register with the tax commissioner in the same manner as

a seller described in division (A)(1) of section 5741.17 of the Revised Code . (6) As used in division (I) of this section: (a) “ Affiliated person ” means any person that is a member of the same controlled group of corporations as

the seller or any other person that, notwithstanding the form of organization, bears

the same ownership relationship to the seller as a corporation that is a member of

the same controlled group of corporations. (b) “Controlled group of corporations” has the same meaning as in section 1563(a) of the Internal Revenue Code . (c) “State agency” has the same meaning as in section 1.60 of the Revised Code . (J) “ Fiscal officer ” means, with respect to a regional transit authority, the secretary-treasurer thereof,

and with respect to a county which is a transit authority, the fiscal officer of the

county transit board appointed pursuant to section 306.03 of the Revised Code or, if the board of county commissioners operates the county transit system, the

county auditor. (K) “ Territory of the transit authority ” means all of the area included within the territorial boundaries of a transit authority

as they from time to time exist.  Such territorial boundaries must at all times include all the area of a single county

or all the area of the most populous county which is a part of such transit authority.  County population shall be measured by the most recent census taken by the United

States census bureau. (L) “ Transit authority ” means a regional transit authority created pursuant to section 306.31 of the Revised Code or a county in which a county transit system is created pursuant to section 306.01 of the Revised Code .  For the purposes of this chapter, a transit authority must extend to at least the

entire area of a single county.  A transit authority which includes territory in more than one county must include

all the area of the most populous county which is a part of such transit authority.  County population shall be measured by the most recent census taken by the United

States census bureau. (M) “Providing a service” has the same meaning as in section 5739.01 of the Revised Code . (N) “ Other consumption ” includes receiving the benefits of a service. (O) “Lease” or “rental” has the same meaning as in section 5739.01 of the Revised Code . (P) “Certified service provider” has the same meaning as in section 5740.01 of the Revised Code . (Q) “ Marketplace facilitator ” means a person that owns, operates, or controls a physical or electronic marketplace

through which retail sales or delivery network services, or both, are facilitated

on behalf of one or more marketplace sellers, or an affiliate of such a person.  “Marketplace facilitator” does not include a person that provides advertising services,

including tangible personal property or services listed for sale, if the advertising

service platform or forum does not engage directly or indirectly through one or more

affiliated persons in the activities described in division (T)(2) of this section. (R) “ Marketplace seller ” means a person on behalf of which a marketplace facilitator facilitates the sale

of tangible personal property for storage, use, or consumption in this state or services

the benefit of which are realized in this state, regardless of whether or not the

person has a substantial nexus with this state. (S) “ Electronic marketplace ” includes digital distribution services, digital distribution platforms, online portals,

application stores, computer software applications, in-app purchase mechanisms, or

other digital products. (T) A sale is “ facilitated ” by a marketplace facilitator on behalf of a marketplace seller if it satisfies divisions

(T)(1), (2), and (3) of this section: (1) The marketplace facilitator, directly or indirectly, does any of the following: (a) Lists, makes available, or advertises the tangible personal property or services

that are the subject of the sale in a physical or electronic marketplace owned, operated,

or controlled by the marketplace facilitator; (b) Transmits or otherwise communicates an offer or acceptance of the sale between the

marketplace seller and the purchaser in a shop, store, booth, catalog, internet site,

or other similar forum; (c) Owns, rents, licenses, makes available, or operates any electronic or physical infrastructure

or any property, process, method, copyright, trademark, or patent that connects the

marketplace seller to the purchaser for the purpose of making sales; (d) Provides the marketplace in which the sale was made or otherwise facilitates the

sale regardless of ownership or control of the tangible personal property or services

that are the subject of the sale; (e) Provides software development or research and development services directly related

to a physical or electronic marketplace that is involved in one or more of the activities

described in division (T)(1) of this section; (f) Provides fulfillment or storage services for the marketplace seller that are related

to the tangible personal property or services that are the subject of the sale; (g) Sets the price of the sale on behalf of the marketplace seller; (h) Provides or offers customer service to the marketplace seller or the marketplace

seller's customers, or accepts or assists with taking orders, returns, or exchanges

of the tangible personal property or services that are the subject of the sale; (i) Brands or otherwise identifies the sale as a sale of the marketplace facilitator. (2) The marketplace facilitator, directly or indirectly, does any of the following: (a) Collects the price of the tangible personal property or services sold to the consumer; (b) Provides payment processing services for the sale; (c) Collects payment in connection with the sale from the consumer through terms and

conditions, agreements, or arrangements with a third party, and transmits that payment

to the marketplace seller, regardless of whether the person collecting and transmitting

such payment receives compensation or other consideration in exchange for the service; (d) Provides virtual currency that consumers are allowed or required to use to purchase

the tangible personal property or services that are the subject of the sale. (3) The subject of the sale is tangible personal property or services other than lodging

by a hotel that is or is to be furnished to transient guests. (U) “Delivery network company,” “delivery network services,” and “local merchant” have

the same meanings as in section 5739.01 of the Revised Code .