2006 Ohio Revised Code - 5747.25. Election to be treated as nonresident taxpayer.

§ 5747.25. Election to be treated as nonresident taxpayer.
 

(A)  An individual may elect to be treated as a nonresident taxpayer under this section for any taxable year. An individual who makes an election in accordance with this section shall be considered a nonresident for the entire taxable year with respect to the tax imposed by section 5747.02 of the Revised Code and the credits allowed against that tax. Except as provided in division (B) of this section, for an individual who makes and does not revoke an election under this section, the portion of Ohio adjusted gross income allocated or apportioned to this state for purposes of computing the nonresident taxpayer credit under division (A) of section 5747.05 of the Revised Code shall be the sum of the following: 

(1) The individual's Ohio adjusted gross income allocated or apportioned to this state under sections 5747.20 to 5747.23 of the Revised Code for purposes of computing the nonresident taxpayer credit under division (A) of section 5747.05 of the Revised Code; 

(2) The remaining amount of the individual's Ohio adjusted gross income, if any, multiplied by a fraction, the numerator of which is the number of contact periods in excess of one hundred twenty that the individual has in this state during the taxable year and the denominator of which is sixty-three. The numerator may be zero, but shall not exceed sixty-three. 

(B) (1)  This division applies to an individual who makes and does not revoke an election under this section and who meets both of the following conditions: 

(a) The individual agrees that at least one other state that imposes an income tax has jurisdiction to impose that income tax on the individual for the taxable year. "Income tax" includes both a tax on net income and a tax measured by net income. 

(b) No later than ninety days after the individual files the return required under section 5747.08 of the Revised Code for the taxable year, he also files with such other state or states the income tax returns or reports required for the same taxable year. For good cause shown, the tax commissioner may extend the ninety-day deadline. 

(2) For an individual to whom this division applies, the portion of Ohio adjusted gross income allocated or apportioned to this state for purposes of computing the nonresident taxpayer credit under division (A) of section 5747.05 of the Revised Code shall be the sum of the following: 

(a) The individual's Ohio adjusted gross income allocated or apportioned to this state under sections 5747.20 to 5747.23 of the Revised Code for purposes of computing the nonresident taxpayer credit under division (A) of section 5747.05 of the Revised Code; 

(b) The included remaining amount of the individual's Ohio adjusted gross income, if any, multiplied by a fraction, the numerator of which is the number of contact periods in excess of one hundred twenty that the individual has in this state during the taxable year and the denominator of which is sixty-three. The numerator may be zero, but shall not exceed sixty-three. 

As used in this division, "the included remaining amount of the individual's Ohio adjusted gross income" means the portion of the individual's Ohio adjusted gross income that is not allocated or apportioned to this state under sections 5747.20 to 5747.23 of the Revised Code for purposes of computing the nonresident taxpayer credit under division (A) of section 5747.05 of the Revised Code, minus the portion, if any, that would be allocated or apportioned to the other state or states that impose an income tax on the individual for the taxable year assuming, solely for the purposes of this division, that the other state or states have nonresident taxpayer credit apportionment and allocation provisions identical to sections 5747.20 to 5747.23 of the Revised Code. 

(C) (1)  An individual may make an election under this section by filing a written statement with the tax commissioner during the taxable year immediately preceding the taxable year to which the election applies. Except as provided in division (D) of this section, the tax commissioner has no authority to challenge or deny the nonresident status of the individual for the taxable year to which the election applies. 

(2) An individual may revoke an election under this section by filing a written revocation with the tax commissioner before the first day of the taxable year to which the election would otherwise apply. Thereafter, the individual may revoke the election only by applying to the commissioner and presenting clear and convincing evidence showing good cause that the election should be revoked. The commissioner shall determine whether the individual shows such good cause and whether to permit the election to be revoked, and his decision shall be final subject to appeal under section 5717.02 of the Revised Code. The commissioner shall transmit a copy of his certificate of final determination to the individual, by personal service or certified mail. 

(3) If an individual makes an election for a taxable year and dies during or after that year, the death does not affect the election, unless the personal representative of the estate of the deceased individual applies under division (C)(2) of this section to permit the election to be revoked and the commissioner determines to permit the revocation. 

(D) (1)  After the end of a taxable year to which an election applies, the tax commissioner, in writing and by personal service or certified mail, return receipt requested, may request an affidavit from the individual verifying the individual's election under this section. Within sixty days after receiving the commissioner's request, the individual shall submit a written affidavit to the commissioner stating both of the following: 

(a) During the entire taxable year to which the election applies, the individual was not domiciled in this state; 

(b) During the entire taxable year to which the election applies, the individual had at least one abode outside this state. 

In the case of an individual who has died, the personal representative of the estate of the deceased individual may respond to the commissioner's request on behalf of the individual by making to the best of the representative's knowledge and belief the statement under this division with respect to the deceased individual and submitting the affidavit to the commissioner within sixty days after receiving the commissioner's request for it. 

An individual or personal representative of an estate who knowingly makes a false statement under this division is guilty of perjury under section 2921.11 of the Revised Code. 

(2) Except as provided in division (D)(3) of this section, if an individual or the personal representative of the estate of an individual does not submit within sixty days after receiving the commissioner's request the affidavit under division (D)(1) of this section, the individual shall be considered to be a resident taxpayer for the entire taxable year to which the election applies with respect to the taxes imposed by Chapters 5747. and 5748. of the Revised Code and the credits allowed against those taxes. The individual, or the personal representative of the estate of the individual, shall have no authority to challenge such resident status. 

(3) If an individual or a personal representative of an estate does not submit within sixty days after receiving the commissioner's request the affidavit under division (D)(1) of this section, he still may apply to the commissioner under division (C)(2) of this section to permit the election to be revoked. 

(E)  With respect to a school district income tax imposed under Chapter 5748. of the Revised Code and any credit allowed against that tax, and to the extent the individual lives in and maintains a permanent place of abode in the school district as described in division (F)(1) of section 5748.01 of the Revised Code, an individual who makes an election under this section shall be considered to be a resident of this state and of the school district. However, for purposes of that tax and credit, the individual shall be considered to have earned and received only the amount of income arrived at by multiplying the amount of income allocated or apportioned to this state under division (A) or (B) of this section for the purpose of computing the nonresident taxpayer credit by a fraction, the numerator of which is the number of contact periods the individual has in the school district during the taxable year and the denominator of which is the number of contact periods the individual has in this state during the taxable year. The individual shall not challenge or deny his status as a resident for the purposes of this division or the taxation of the amount of income required under this division. 

(F)  An individual or personal representative of an estate shall not apply under division (C)(2) of this section to revoke an election under this section and the tax commissioner shall not request an affidavit under division (D) of this section after the expiration of the period, if any, within which the commissioner may make an assessment under section 5747.13 of the Revised Code against the individual for the taxable year in question. 
 

HISTORY: 145 v S 123. Eff 10-29-93.