This archived information release has been superseded
by a later release. It is archived here for
historical/reference purposes ONLY. For the most current
information releases, please refer to the main "Information
Releases - Current Releases" index.
CAT 2008-02 - Commercial Activity Tax: Business as usual
after the Court of Appeals decision in Ohio Grocers
Association v. Wilkins, Franklin App. No. 07AP-813,
2008-Ohio-4420 – Issued September 2008; Revised February 2009
This information release is provided to assist taxpayers in
understanding their commercial activity tax (“CAT”)
responsibilities after the Court of Appeals decision in
Ohio Grocers Association v. Wilkins,
Franklin App. No. 07AP-813, 2008-Ohio-4420. This release is
updated to reflect an update to the status of the case in the
Ohio court system.
On September 2, 2008, the 10th District Court of Appeals
issued a decision that the CAT may not be imposed on gross
receipts derived from the sale of food for consumption off
The Tax Commissioner, through the Attorney General’s Office,
filed a motion for a stay of the judgment so the State could
appeal the decision to the Ohio Supreme Court. The Court of
Appeals granted that motion on September 9, 2008. The
State filed a Notice of Appeal on October 17, 2008, and two
amici briefs were filed simultaneously in support of
jurisdiction. The Grocers waived their opportunity to respond
to the appeal notice on October 31, 2008.
The Ohio Supreme Court accepted certiorari in the case and
agreed to take the case pursuant to the discretionary appeal
on February 4, 2009. (1) As such, the motion to stay the
judgment remains in effect until the Ohio Supreme Court
issues its final decision on the case.
Therefore, taxpayers should continue to file all applicable
returns and make all applicable payments for the CAT.
Pursuant to R.C. 5751.08(A), taxpayers may file protective
refund claims for taxes paid. Please be mindful of the CAT’s
four-year statute of limitations; all refund claims must be
received within four years of the payment of the tax.
Taxpayers that wish to file protective refund claims pending
the outcome of the department’s appeal to the Ohio Supreme
Court should use form CAT-REF, which may be obtained
from the department’s Web site
(tax.ohio.gov). Please send all protective
refund claims to: Ohio Department of Taxation, CAT
Division-CAT REF, P.O. Box 16158, Columbus, OH 43216-6158.
Please direct any questions to the CAT Division of this
department at 1-888-722-8829.
(1) Feb. 4, 2009 Case Announcements, 2009-Ohio-361