Information Release

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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 premises. 

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