Section 5741.01 | Definitions.

• Effective: September 30, 2021
• Latest Legislation: House Bill 110 - 134th General Assembly

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. 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 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.

Last updated July 23, 2021 at 8:14 AM

Available Versions of this Section

• September 29, 2013 – House Bill 59 - 130th General Assembly
• July 1, 2015 – House Bill 64 - 131st General Assembly
• September 29, 2017 – Amended by House Bill 49 - 132nd General Assembly
• July 18, 2019 – Amended by House Bill 166 - 133rd General Assembly
• September 30, 2021 – Amended by House Bill 110 - 134th General Assembly