(A) In addition to the tax levied by section 5739.02 of the Revised Code and any tax levied pursuant to section 5739.021, 5739.023, or 5739.026 of the Revised Code, and to secure the same objectives specified in those sections, there is hereby levied upon the privilege of engaging in the business of making retail sales, an excise tax equal to the tax levied by section 5739.02 of the Revised Code, or, in the case of retail sales subject to a tax levied pursuant to section 5739.021, 5739.023, or 5739.026 of the Revised Code, a percentage equal to the aggregate rate of such taxes and the tax levied by section 5739.02 of the Revised Code of the receipts derived from all retail sales, except those to which the excise tax imposed by section 5739.02 of the Revised Code is made inapplicable by division (B) of that section.
(B) For the purpose of this section, no vendor shall be required to maintain records of sales of food for human consumption off the premises where sold, and no assessment shall be made against any vendor for sales of food for human consumption off the premises where sold, solely because the vendor has no records of, or has inadequate records of, such sales; provided that where a vendor does not have adequate records of receipts from the vendor's sales of food for human consumption on the premises where sold, the tax commissioner may refuse to accept the vendor's return and, upon the basis of test checks of the vendor's business for a representative period, and other information relating to the sales made by such vendor, determine the proportion that taxable retail sales bear to all of the vendor's retail sales. The tax imposed by this section shall be determined by deducting from the sum representing five and three-fourths per cent, as applicable under division (A) of this section, or, in the case of retail sales subject to a tax levied pursuant to section 5739.021, 5739.023, or 5739.026 of the Revised Code, a percentage equal to the aggregate rate of such taxes and the tax levied by section 5739.02 of the Revised Code of the receipts from such retail sales, the amount of tax paid to the state or to a clerk of a court of common pleas. The section does not affect any duty of the vendor under sections 5739.01 to 5739.19 and 5739.26 to 5739.31 of the Revised Code, nor the liability of any consumer to pay any tax imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026 of the Revised Code.
Notes of Decisions
Cited in 15
cases, 1953–2009 · leading case: Russo v. Donahue, 226 N.E.2d 747 (Ohio 1967).
Russo v. Donahue, 226 N.E.2d 747 (Ohio 1967). · cites it 28דIf we examine the Sales Tax Act as originally drawn, and note the amendments which the General Assembly adopted in reaction to judicial construction, we are assisted in understanding the limited usefulness of Section 5739.10, Revised Code, as it now stands.”
Chrysler Fin. Co. v. Wilkins, 812 N.E.2d 948 (Ohio 2004). · cites it 2דA deduction may be claimed only with respect to bad debts on which the taxes *446 pursuant to sections 5739.10 and 5739.12 of the Revised Code were paid in a preceding tax period.”
Federated Dep't Stores, Inc. v. Lindley, 450 N.E.2d 687 (Ohio 1983). “Assuming, arguendo, that Rike’s failed to maintain complete and accurate records, R.C. 5739.10 authorizes the commissioner to conduct test checks designed to establish the proportion that taxable retail sales bear to all retail sales for a representative period which…”
Midwest Transfer Co. v. Porterfield, 13 Ohio St. 2d 138 (Ohio 1968). · cites it 2דAlthough there is no specific authorization in the highway use tax law as there is in the sales tax law (Section 5739.10, Revised Code) for the Tax Commissioner to conduct a test check where a taxpayer’s records are insufficient and to apply the results of such test check to the…”
Home Depot USA, Inc. v. Levin, 2009 Ohio 1431 (Ohio 2009). “The amount deducted must be *485 charged off as uncollectible on the books of the vendor.”
Cheery Street Corp. v. Porterfield, 272 N.E.2d 124 (Ohio 1971). · cites it 2דIn respect to the differences between the test-check methods employed by the Tax Commissioner and appellees, the Board of Tax Appeals stated: “It appears clear to this board that the Tax Commissioner has fully complied with the requirements of Revised Code Section 5739.10 with…”
S. S. Kresge Co. v. Bowers, 206 N.E.2d 905 (Ohio 1965). · cites it 10ד, sales over 40 cents; (2) a vendor in his taxable sales must keep complete and accurate records of all taxable sales and the taxes collected thereon; and (3) when the Tax Commissioner is not satisfied with the tax returns as computed by the vendor, he may by virtue of Section…”
Dixon v. Bowers, 200 N.E.2d 646 (Ohio Ct. App. 1963). · cites it 6דAccordingly, an assessment against her is controlled by the provisions of Section 5739.10, Revised Code. The amount of gross receipts being known, the burden was upon the vendor-appellant to prove what part, if any, of such receipts were nontaxable or tax-exempt.”
May Co. v. Lindley, 437 N.E.2d 295 (Ohio 1982). “” The commissioner’s determination was based upon a “test check” made pursuant to R.C. 5739.10 and 5739.13.”
King Drug Co. v. Bowers, 171 Ohio St. (N.S.) 461 (Ohio 1961). · cites it 24דAppellants contend that Section 5739.10, Bevised Code, so far as it permits the use of test checks outside *462 the actual audit period to determine tax liability for sales made during the audit period is unconstitutional; that appellants’ records of retail sales in excess of 41…”
Pato Foods, Inc. v. Lindley, 453 N.E.2d 1274 (Ohio Ct. App. 1982). · cites it 3דTest checks are discussed in R.C. 5739.10: “* * * [Wjhere a vendor does not have adequate records of receipts from his retail sales in excess of fifteen cents or sales of food for human consumption on the premises where sold, the tax commissioner may refuse to accept the…”
S. S. Kresge Co. v. Bowers, 170 Ohio St. (N.S.) 405 (Ohio 1960). · cites it 10דAmended Section 5739.10, Revised Code, reads in part as follows: “For the purpose of this section no vendor shall be required to maintain records of individual retail sales of tangible personal property under 41 cents, and no assessment shall be made against any vendor for…”
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