IT 2008-02 - Military Taxpayer Guide to Taxable Income and
Deductions – Issued Oct. 17, 2008; Revised November 2009
The purpose of this information release is to discuss the
various Ohio income tax benefits available for (i)
servicemembers and spouses (and retired servicemembers)
domiciled in Ohio and (ii) servicemembers and spouses
(and retired servicemembers) not domiciled in Ohio.
1
This revision addresses the impact on military spouses of the
Nov. 12, 2009 amendment to the Servicemembers Civil
Relief Act. It also clarifies the required days of training
outside Ohio in order for servicemembers to qualify for a tax
deduction for military pay.
Ohio-domiciled servicemembers who are stationed inside this
state are liable for state income tax, as well as for school
district income tax at their place of domicile if their
domicile is within a taxing school district. Ohio-domiciled
spouses of servicemembers who reside in Ohio are also liable
for state income tax and school district income tax, if their
domicile is within a taxing school district.
This information release addresses the following topics:
- An overview of "domicile" and "residency" for Ohio income
tax purposes,
- Extended due dates and payment dates available to certain
servicemembers,
- Special deductions available to certain servicemembers,
and
- Full exemption from Ohio income tax and from school
district income tax for certain servicemembers (and for
certain civilians).
"Domicile" and
"Residency" 2
A military servicemember, or spouse, who is a legal resident
3 of Ohio is presumed to be domiciled in Ohio and
is thus a “resident taxpayer.” As explained in the succeeding
paragraphs, the legal residence of a military servicemember
is the place where the servicemember was residing at
the time the servicemember entered the military, unless the
servicemember (i) takes action to change in the
servicemember’s military records her/his residence
and (ii)
manifests an intent to change her/his residence.
Under Ohio's income tax law, a taxpayer is a "resident
taxpayer" if the taxpayer is "domiciled" in Ohio. See
division (I)(1) of Ohio
Revised Code section 5747.01. 4 An
individual who is not a "resident" of Ohio for any portion of
the year is a "nonresident," but an individual who is a
resident of Ohio for only a portion of the taxable year is a
nonresident for the other portion that taxable year. See
division (J) of Ohio Revised Code section
5747.01. For ease of reading, the department uses
the term "part-year resident" to describe a taxpayer who
meets “(I),” below, and either “(II)(a)”
or
“(II)(b),” below:
( I) The taxpayer is a resident for only a portion of
the current taxable year and
(II)(a) For the taxable year immediately
preceding the current taxable year the taxpayer was a
full-year nonresident, and for the taxable year immediately
following the current taxable year the taxpayer will be a
full-year resident,
or
(II)(b) For the taxable year immediately preceding the
current taxable year the taxpayer was a full-year resident
and for the taxable year immediately following the current
taxable year will be a full-year nonresident.
Except in rare circumstances no individual can be a part-year
resident for more than one consecutive taxable
year.5 For example, assume an individual
resides in Florida from January 1 until March 21 each
calendar year. The individual then resides in Ohio from
March 21 of each year until immediately before Thanksgiving
of each year. From Thanksgiving of each year through the
remainder of the year and until March 21 of the immediately
succeeding year the individual again resides in
Florida. The taxpayer repeats this cycle each
year. For Ohio income tax purposes the individual is a
full-year “resident” of, and a full-year domiciliary of, Ohio
each year; for Ohio income tax purposes this individual is
not a “part-year resident” of Ohio for any year.
An individual can be domiciled in Ohio (and in a school
district within Ohio) even if the individual spends no time
in Ohio during any portion of the year. For example,
assume an individual who was "born and raised" in
Pickerington, Ohio enlists in the U.S. Armed Forces
immediately after graduating from Pickerington High School in
June of the taxable year, and her/his duty station(s) is
(are) outside Ohio. From the day the individual enlists
and continuing for several years, this individual does not
return to Ohio.
In this example, as of the date of enlistment the taxpayer no
longer resides (lives in) Ohio (because s/he left Ohio), but
s/he continues to be domiciled each year in Ohio because the
taxpayer's state of legal residence continues to be Ohio. As
such, for Ohio and school district income tax purposes this
individual continues to be a full-year "resident," and s/he
is subject to Ohio income tax and Pickerington school
district tax as a full-year Ohio “resident” – even though
this individual no longer physically resides in Ohio.
However, the taxpayer can exclude from Ohio adjusted gross
income (line 3 on Ohio Tax Department form IT 1040 ) military
pay which s/he receives as an active servicemember while s/he
is stationed outside this state. As such, s/he will not pay
Ohio and school district income tax on military pay which
s/he receives as an active servicemember while s/he is
stationed outside this state.
Likewise, the spouse of an Ohio-domiciled servicemember who
is also domiciled in Ohio, but who moves outside the state
with his/her spouse solely due to military orders, is
presumed to retain their domicile in Ohio. The same rule
applies to an Ohio-domiciled military spouse who moves
outside the state with a non-Ohio domiciled servicemember.
These spouses continue to be subject to Ohio state income tax
and school district income tax, if their domicile is within a
taxing school district.
Ohio Revised Code section 5747.24 provides that
an individual can be "irrebuttably presumed" to be a
full-year "nonresident" under the following five
circumstances:
- The individual did not change domicile from or to Ohio
during the taxable year,
- During the taxable year the individual has no more than
182 contact periods in this state, which need not be
consecutive, 6
- During the entire taxable year the individual has at
least one abode outside the state,
- On or before the sixtieth day after the end of the third
month 7 following the close of the taxable year
the individual files with the Ohio tax commissioner form
IT 10 for servicemembers, the notice
which verifies that the individual was not domiciled in this
state during the taxable year, and
- The notice is not false.
Servicemembers, like civilians, who meet the five
requirements set forth above are irrebuttably presumed to be
full-year non residents for Ohio income tax
purposes. However, if a servicemember's state of legal
residence on U.S. Department of Defense Form DD 2058,
"state of legal residence certificate," or equivalent in the
servicemember's military personnel record shows that Ohio is
the servicemember's state of legal residence, then the notice
(Ohio tax department form IT-10) contains a false statement,
and that servicemember is presumed to be domiciled in this
state for the entire taxable year and thus is presumed to be
a full-year "resident" for Ohio and school district income
tax purposes. 8 Note: generally,
military finance officers withhold state and local income
taxes only for the state listed on Department of Defense form
DD 2058 as the servicemember’s home of record.
The amendment states that the spouse of a servicemember who
is residing in a jurisdiction solely due to the military
orders of his/her spouse is excluded from income taxation by
that jurisdiction on income earned for services performed or
from sources within the jurisdiction. In order to qualify for
this exclusion, both the servicemember and spouse must be
residents of the same state and nonresidents of the state
where they are residing due to military orders.
For additional information regarding "domicile" and
"residency," see information release IT 2007-08, Personal
Income Tax: Residency Guidelines – Tax Imposed on Resident
and Nonresident Individuals for Post-2006 Taxable Years,
issued December, 2007 and revised July, 2008.
Extended Due Dates
and Extended Payment Dates
General rule – Tax Return Filing Due
Date: Unless any of the exceptions discussed below,
applies, Ohio and school district income tax returns are due
on the same date on which the U.S. individual income tax
return is due. So, (i) if the taxpayer has secured from
the IRS an extension of time to file her/his U.S. individual
income tax return or (ii) if the IRS has announced an
extension of time to file the U.S. individual income tax
return and if that announcement applies to the taxpayer or
(iii) if federal law (generally the Internal Revenue Code)
provides for an extension of time to file the U.S. individual
income tax return and if that law applies to the taxpayer,
then, unless any of the exceptions, discussed below, applies,
the due date for filing the Ohio and school district income
tax returns, is extended to the same extended due date for
filing the U.S. individual income tax return.
9
General rule – Tax Payment Due Date: An
extension of time to file the Ohio income tax
return is not an “automatic” extension of time to
pay the
balance of any Ohio and school district income tax
due. As such, unless any of the exceptions, discussed
below, applies, each taxpayer to whom a filing extension applies
must pay by the unextended due date at least 90% of the total
tax (net of credits) imposed for the year and must pay by the
extended due date the balance of the tax due. Unless any
of the exceptions, discussed below, applies,
failure-to-pay-timely penalties will apply to each taxpayer
(i) who does not pay by the unextended due date at least 90%
of the total tax (net of credits) imposed for the year and
(ii) who does not pay by the extended due date the balance of
the tax due. Regardless of the percentage to tax (net of
credits) the taxpayer pays by the unextended due date,
interest will apply to all amounts remaining unpaid as of the
unextended due date – unless any of the exceptions, discussed
below, applies. 10
Exception for Military Personnel Serving in a Combat
Zone: The Ohio Department of Taxation announced in
Information Release IT
2002-01, dated Feb. 1, 2002, the following provisions
apply (unless more liberal provisions, discussed later in
this information release, apply):
- The due date for making Ohio and school district
estimated income tax payments, Ohio and school district
income tax return payments, and Ohio and school district
income tax return filings is extended for 180 days beyond the
period of service in the combat zone, plus time in
missing-in-action status and time in continuous
hospitalization outside the U.S. and up to five years of
hospitalization within the U.S. resulting from injuries
received in the combat zone.
- The Tax Commissioner has waived all related interest
penalties, failure-to-pay penalties, and failure-to-file
penalties otherwise due during the suspension period.
- The taxpayer must pay interest with respect to Ohio and
school district income tax return payments made after the
fifteenth day of April of each year following the last day of
the taxable year.
- The Department will not pay interest on
refunds issued within ninety days after the taxpayer files
the return.
Filing and payment exception for certain members of the
National
Guard and for certain members of a reserve component of the
armed forces.
Ohio Revised Code section 5747.026 provides that
for taxable years beginning on or after Jan. 1, 2002 each
member of the national guard in any state and each member of
a reserve component of the armed forces of the United States
called to active duty pursuant to an executive order issued
by the president of the United States or an act of the
congress of the United States may apply to the tax
commissioner for both an extension of time for filing of Ohio
income tax and school district income tax return and an
extension of time for payment of the related taxes.
This extension period includes the period of the member’s
duty service and for sixty days thereafter.
Taxpayers who qualify for this extension provision must file
the application on or before the sixtieth day after the
taxpayer’s duty terminates. The tax commissioner may ask for
documentation showing that the applicant qualifies for the
extension provided by Ohio
Revised Code section 5747.026.
If the tax commissioner ascertains that an applicant is
qualified for an extension under this law, the tax
commissioner will enter into a contract with the applicant
for the payment of the tax in installments that begin on the
sixty-first day after the applicant’s active duty
terminates. The law provides that the tax commissioner
may prescribe such contract terms as the tax commissioner
considers appropriate. If the amount owed is two thousand
four hundred dollars or less, the contract shall be for not
longer than twelve months, and if the amount owed is more
than two thousand four hundred dollars, the contract shall be
for not longer than twenty-four months.
Qualifying taxpayers need not file their Ohio and school
district income tax returns until the sixty-first day after
the applicant’s active duty terminates. In addition,
these taxpayers who timely make payments as set forth in the
contract will not owe penalties, interest penalties, or
interest in connection with those taxes for the extension
period.
This law further provides that each qualifying taxpayer who
is eligible for an extension of time to file her/his U. S.
income tax return, IRS form 1040, under the Internal Revenue
Code has both the same extension of time in which to file
her/his Ohio income tax and school district income tax
returns and the same an extension of time to pay the related
taxes without incurring any penalties, interest penalties, or
interest in connection with those taxes for the extension
period.
All the extension provisions discussed immediately above
apply to the spouse of the qualifying taxpayer if the filing
status is married filing jointly for that year.
Special Deductions
Available to Certain Servicemembers
Combat Zone Pay
Division (A) of Ohio Revised Code section 5747.01 defines
"Ohio adjusted gross income," which is the tax base for Ohio
and school district income tax. In deriving Ohio
adjusted gross income, the "starting point” is adjusted gross
income as defined in the Internal Revenue Code (we often
refer to this starting point as "federal adjusted gross
income”). Division (A) sets forth various adjustments
to federal adjusted gross income. These adjustments do
not include
adding to federal adjusted gross income any portion of combat
zone pay (income) which is excluded from federal adjusted
gross income. As such, combat zone pay is not included
in Ohio adjusted gross income and is not subject to Ohio or
school district income tax.
Military Service Compensation Received in Ohio by
Servicemembers Not Domiciled in Ohio
Sections 511(b) and 511(d) of the federal Servicemembers Civil Relief Act require
each state and local tax agency to exclude from taxable
income military service compensation of each servicemember if
the servicemember is not domiciled in the taxing jurisdiction
in which the servicemember is serving. 11 To
comply with this law, we provide a line item adjustment
deduction on the Ohio income tax return, form IT 1040: see page 3, Schedule A,
line 36.
An amendment to the Servicemembers Civil
Relief Act, effective Nov. 11, 2009 for tax years beginning
Jan. 1, 2009 and later, extends the principle of domicile
applied to servicemembers to the spouses of servicemembers.
The amendment states that the spouse of a servicemember, who
is domiciled in a different taxing jurisdiction and is
residing in a taxing jurisdiction solely due to the military
orders of his/her spouse, is excluded from taxation by that
jurisdiction on income earned for services performed or from
sources within the jurisdiction.
Post-2006 Military Service Compensation Received
Outside Ohio by Servicemembers Domiciled in
Ohio
Division (A)(24) of Ohio
Revised Code section 5747.01 provides that for taxable
years beginning after December 31, 2006 each Ohio domiciled
military servicemember, while stationed outside Ohio can
exclude from Ohio adjusted gross income (and thus pay no Ohio
or school district income tax on) "military
pay and allowances received by the taxpayer during the
taxable year for active duty service in the United States
army, air force, navy, marine corps, or coast guard or
reserve components thereof or the national guard” if the pay
and allowances are included in federal adjusted gross
income. This
exclusion in not available for pre-2007 taxable years.
For taxable years prior to 2007 the income is not
excludable and must be included in Ohio adjusted gross
income. Furthermore, – for any and all years – pay for
service in a combat zone is not eligible for this exclusion
if that pay is already excluded from federal adjusted gross
income.
Please note that the Nov. 11, 2009, amendment to the Servicemembers Civil
Relief Act for tax years beginning Jan. 1, 2009 does not
apply to Ohio-domiciled spouses of servicemembers who reside
with their spouses outside the state. The act excludes this
spouse’s income if he/she is domiciled in a different taxing
jurisdiction – e.g., Ohio – and is residing in a taxing
jurisdiction solely due to the military orders of his/her
spouse. However, this spouse is presumed to retain his/her
original, or Ohio, domicile and remains subject to Ohio
individual income and school district income tax, if his/her
domicile is located within a taxing school district.
The term "stationed" refers to an Ohio resident
servicemember's permanent duty station. For purposes of this
exemption, "permanent duty station" has the same meaning as
specified in Ohio Revised Code 5103.20, Article II,
Subparagraph (U), that is, it means the military installation
where an active duty servicemember - or, concerning this
exemption, an Ohio resident servicemember in the National
Guard or military Reserve forces - is currently assigned and
is physically located under competent orders that do not
specify the duty as temporary. Periods of training in which a
servicemember, either individually or as part of a unit,
departs from his/her permanent place of duty and then returns
following the completion of the training, is not included in
the definition of "stationed." However, periods of active
duty outside Ohio for purposes other than training, or
periods of training greater than 30 days outside Ohio, as
described below, qualify a servicemember for this exemption.
Military pay and allowances for Ohio resident servicemembers
who are stationed inside Ohio, and their spouses, will
continue to be subject to Ohio individual income tax. These
amounts will also be subject to school district income tax if
the servicemember was domiciled in a taxing school district -
even if the servicemember did not reside in the school
district at any time during the taxable year.
Examples of military pay and allowances that
do qualify for this deduction include the
following amounts, but only if the taxpayer receives the
amounts while he/she is stationed outside Ohio:
- Military pay and allowances received while a member of
the active component of the U.S. armed forces and assigned to
a permanent duty station outside Ohio.
- Military pay and allowances received while a member of
the active component of the U.S. Armed Forces, who is
assigned to a permanent duty station inside Ohio,
only for periods of duty outside Ohio for
purposes other than training, or periods of training greater
than 30 days outside Ohio.
- Military pay and allowances received while a member of
the National Guard or the Reserve components of the U.S.
Armed Forces in an active duty status outside Ohio, or for
periods of training greater than 30 days, outside Ohio.
- Military pay and allowances received while a member of a
unit of the National Guard or the Reserve components of the
U.S. Armed Forces under federal mobilization orders under
which the unit mobilizes for training at a non-Ohio location
followed by an operational deployment to any non-Ohio
location.
- Military pay and allowances received by cadets at the
U.S. service academies, specifically the Military Academy,
the Air Force Academy, the Coast Guard Academy and by
midshipmen at the Naval Academy. Cadets and midshipmen are
serving on active duty under the provisions of 38 United
States Code section 101(21) and are eligible for this
deduction for the pay they receive while stationed at these
facilities to the extent that this pay is included in federal
adjusted gross income (line 1 on Ohio form IT 1040). However,
this deduction is not available for pay received for service
in the Reserve Officer Training Corps.
Examples of military pay and allowances that do
not qualify for this deduction include the
following:
- Military pay and allowances received while a member of
the active component of the U.S. Armed Forces who is assigned
to a permanent duty station inside Ohio and who departs Ohio
for a period of temporary duty for unit or individual
training of 30 days or less (e.g., training exercises, basic
and advanced training courses, and additional skill training
courses).
- Military pay and allowances received while a member of
the National Guard or the Reserve components of the U.S.
Armed Forces in an active duty for training status who
departs Ohio for a period of temporary duty for unit or
individual training of 30 days or less (e.g ., unit annual
training, training exercises, basic and advanced training
courses, and additional skill training courses).
- Military pay and allowances received for service in a
combat zone because that pay is not included in federal
adjusted gross income (line 1 on Ohio form IT 1040).
Servicemembers eligible for the deduction described above may
request that the military exempt them from Ohio withholding
only during
the period of their service outside the state by submitting
Ohio form IT 4 MIL to their
military finance
office. Military pay and allowances for
servicemembers of all military components who are Ohio
residents and who are stationed inside Ohio will continue to
be subject to Ohio individual income tax and also subject to
school district income tax if the servicemember is domiciled
in a taxing school district.
This
deduction/exclusion is not available for pre-2007 taxable
years. Income in those years must be included in Ohio
adjusted gross income. Furthermore, – for any and all years –
pay for service in a combat zone is not eligible for this
exclusion if that pay is already excluded from federal
adjusted gross income.
Post-2007 Deduction for Military Retirement
Pay
Division (A)(26) of Ohio
Revised Code section 5747.01 provides that for taxable
years beginning after 2007 taxpayers who retired from service
in the active or reserve components of the U.S. Army, Navy,
Air Force, Marine Corps, Coast Guard or national guard (any
state) can deduct the pay the taxpayers receive for their
military retirement to the extent that pay is not otherwise
deducted or excluded in computing Ohio adjusted gross
income. Taxpayers who served in the military and receive
a federal civil service retirement pension are also eligible
for a limited deduction if any portion of their federal
retirement pay is based on credit for their military
service. These retirees can deduct only the amount of
their federal retirement pay that is attributable to their
military service.
Each taxpayer eligible for this limited deduction should
refer to her/his federal civil service retirement benefit
handbook to determine the number of years of military
service. Divide the number of years of military service
by the total number of years of combined military service and
civilian employment with the U.S. government (once the
taxpayer has calculated the fraction, s/he does not have to
recompute it from year to year to claim the tax credit, since
the service years and the total years used in the calculation
will not change). Take this fraction and multiply it by
the amount of your federal civil service pension you have
included in federal adjusted gross income (line 1 on the Ohio
income tax return, form IT
1040. The resulting number is the amount of your
federal civil service pension that you can deduct (see line
45g on page 3 of the Ohio income tax return, form IT 1040.
Example: The taxpayer has included in federal adjusted
gross income (line 1 of the Ohio income tax return, form IT
1040) $60,000 which the taxpayer received as a federal civil
service pension. The taxpayer has 15 years of military
service and 45 years of combined military service and
civilian employment with the U.S. government. The
fraction is 15/45 = 1/3. The taxpayer can deduct $20,000
on line 45g on the year 2008 form IT 1040: 1/3 X
$60,000.
This deduction also applies to such amounts received by the
surviving spouse or the former spouse of each military
retiree who is receiving payments under the survivor benefit
plan. Please note that child support receipts,
regardless of the source, are not included in federal
adjusted gross income; so these amounts are not deductible.
Each taxpayer not having her/his federal civil service
retirement handbook may contact the U.S. Office of Personnel
Management (OPM) at 1-888-767-6738 or TDD
1-800-878-5707. Taxpayers may also e-mail OPM at
retire@opm.gov or use its web site at
www.opm.gov/retire to request the
booklet. The taxpayer should be sure to specify that
s/he wants a REPLACEMENT booklet (there are other
types). An OPM customer service representative will tell
the taxpayer how much military and total service time the
taxpayer has and can land mail to the taxpayer a screen print
or short form letter with the information.
Post-2007 Deduction for Certain Military Injury
Relief Fund Receipts
Division (A)(27) of Ohio
Revised Code section 5747.01 provides that for taxable
years beginning after 2007 each taxpayer can deduct (see line
45g on the year 2008 Ohio income tax return, form IT 1040) military injury relief amounts
which the taxpayer has included in federal adjusted gross
income (line 1 on the Ohio income tax return, form IT
1040). Note: the taxpayer does not have to include
in federal adjusted gross income, and the taxpayer cannot
deduct on the Ohio income tax return, military injury relief
fund amounts that the taxpayer received on account of
physical injuries or psychological injuries, such as
post-traumatic stress disorder, if such psychological
injuries are a direct result of military action.
Deduction for Reimbursement of Certain National
Guard Group Life Insurance Premiums
Division (A)(22) of Ohio
Revised Code section 5747.01 provides that each taxpayer
who has received from the Ohio Adjutant-General any
reimbursement for payment of group life insurance can deduct
these amounts (see line 42 on the year 2008 Ohio income tax
return, form IT 1040 under the
following circumstances:
- Such amounts are included in federal adjusted gross
income (line 1 of the Ohio income tax return, form IT 1040),
- The Ohio National Guard member had purchased group life
insurance pursuant to the "Servicemembers' Group Life
Insurance Act," 38 U.S.C. 1965, and
- The Ohio National Guard active duty member paid the
premium(s) for each month or part of a month that the member
was an active duty member of the Ohio National Guard.
See, also, Ohio Revised Code section 5919.31.
Deduction for Certain National Guard Death
Benefits
Division (A)(23) of Ohio
Revised Code section 5747.01 provides that each taxpayer
who has received from the Ohio Adjutant-General death
benefits with respect to any active duty member of the Ohio
National Guard who died while performing active duty. "Active
duty member" means a member of the Ohio National Guard on
active duty pursuant to an executive order of the president
of the United States pursuant to the "Active October 28,
2004," 32 U.S.C. 901, another act of the Congress of
the United States, or a proclamation of the
governor. However, "active duty member" does not include
a member performing full-time Ohio National Guard duty or
performing special work active duty under the "Act of October
3, 1964," 32 U.S.C. 502(f). See Ohio
Revised Code 5919.33.
Note: the recipient of such death benefits can claim
this deduction only if the death benefit proceeds have been
included in federal adjusted gross income (line 1 on the Ohio
income tax return, form IT 1040).
Exemption for
Servicemembers Who Die as a Result of Combat Zone Service and
for Certain Civilian Employees of the U. S. Government Who
Die as a Result of Terroristic or Military
Action
Ohio Revised Code section 5747.023 provides for
a full payment exemption from Ohio individual income tax and
from school district income tax for servicemembers who die as
a result of combat zone service. On the next two pages
is a flow chart that the reader can use to ascertain if this
law applies to a taxpayer.
* *
* * *
If you have any questions regarding this information release,
please contact us by sending us an e-mail via our home page
at
tax.ohio.gov.
Endnotes
_________________________________________________
1 Several provisions of the federal Servicemembers Civil Relief Act also
provide state and local tax benefits and protections for all
servicemembers -- regardless of the servicemember's post of
duty. Other provisions of that act contain provisions
that apply only to each servicemember stationed outside the
state in which is located as the servicemember's home of
record. For example, section 511 of that act provides
that each state and local government authority which imposes
an income tax must exclude from the state's and from the
local government's definition of state or local taxable
income the compensation of each servicemember who "is not a
resident or domiciliary of the jurisdiction in which the
servicemember is serving in compliance with military orders."
The Internal Revenue Code also provides significant federal
income tax benefits to servicemembers serving in combat
zones. For more information see the Internal Revenue
Service news article “Tax Information for Members of the U.S.
Armed Forces”.
2 This portion of this information release
addresses only Ohio income tax law with respect to domicile
and residency. For the federal law treatment of
domicile and residency with respect to a servicemember’s
stationed outside her/his home of record, the reader may also
want to refer to section 511 of the federal Servicemembers Civil Relief Act.
3 See U.S. Department of Defense form
DD 2058 which uses the term “legal
residence.”
4 Please note that all internet links set forth in
this information release are accurate as of the date of
issuance of this information release.
5 An example of such a “rare circumstance”
where an individual can be a part-year Ohio resident for two
consecutive years is the following: For many years an
individual was domiciled in, and resided in, State
“A.” From January 1 of the current taxable year (“20X1”)
through March 31, 20X1 the individual continued to be
domiciled in, and continued to reside in, State “A.” On
April 1, 20X1 the individual’s employer (which is neither
owned nor controlled by the individual or by any member of
the individual’s family) permanently transfers the individual
to Ohio. On April 1, 20X1 the individual sells her or his
home in State “A” and moves with her/his family to Ohio where
the individual purchases a home in Ohio. The individual
immediately registers to vote in Ohio. From April 1,
20X1 through and including February 28, 20X2 the individual
continues to reside in, and be domiciled in, Ohio. On
March 1, 20X2, as a result of the individual’s employer’s
merging with another company (which is neither owned nor
controlled by the individual or by any member of the
individual’s family), the individual is transferred back to
State “A.” The individual immediately sells her/his Ohio
home and moves with her/has family back to State “A.” In
this unusual situation the individual is a part-year Ohio
resident for Ohio income tax purposes for two consecutive
taxable years: 20X1 and 20X2: s/he resided in, and
was domiciled in, Ohio from April 1, 20X1 through December
31, 20X1 and from January 1, 20X2 through February 28, 20X2.
6 Division (A)(1) of Ohio
Revised Code section 5747.24 states that an individual
“has one contact period in this state” if the individual is
away overnight from the individual’s abode located outside
this state and while away overnight from that abode spends at
least some portion, however minimal, of each of two
consecutive days in this state.
Division (A)(2) of Ohio
Revised Code section 5747.24 states that an individual is
considered to be “away overnight from the individual’s abode
located outside this state” if the individual is away from
the individual’s abode located outside this state for a
continuous period of time, however minimal, beginning at any
time on one day and ending at any time on the next day.
7 Division (B)(1) of section 5747.24 states that
the individual must file the affidavit "on or before the
fifteenth day of the fourth month following the close of the
taxable year . . .". However, Ohio
Revised Code section 5703.35 provides that the tax
commissioner may extend for a period, not to exceed
forty-five days, the time in which to file any report
required by law to be filed. Hence, the affidavit is due
sixty-days after the last day of the third month following
the close of the individual's taxable year. Note, also,
that Ohio Revised Code section 1.14 provides, in
part, the following: “The time within which an act is
required by law to be done shall be computed by excluding the
first and including the last day; except that, when the last
day falls on Sunday or a legal holiday, the act may be done
on the next succeeding day that is not Sunday or a legal
holiday.”
8 See the last sentence in the paragraph
immediately following division (B)(1)(b) of Ohio
Revised Code section 5747.24: “The presumption that
the individual was not domiciled in this state is
irrebuttable unless the individual fails to timely file the
statement as required or makes a false statement. If the
individual fails to file the statement as required or makes a
false statement, the individual is presumed under division
(C) of this section to have been domiciled in this state the
entire taxable year.”
9 The first paragraph of division (G) of Ohio
Revised Code section 5747.08 states that both the Ohio
income tax return and the Ohio school district income tax
return are due by April 15 of each year. However, the
second paragraph of that division authorizes the tax
commissioner, “upon good cause shown,” to extend the due date
for these two tax returns. Based upon this authority the
tax commissioner announced years ago, via the instruction
booklet for the Ohio income tax return, the “extended due
date” return filing policy discussed above.
10 See the last sentence in the second paragraph
of division (G) of Ohio
Revised Code section 5747.08: “Except as provided in
section section 5747.132 of the Revised Code, in
addition to all other interest charges and penalties, all
taxes imposed under this chapter or Chapter 5748 of the
Revised Code and remaining unpaid after they become due,
except combined amounts due of one dollar or less, bear
interest at the rate per annum prescribed by section 5703.47
of the Revised Code until paid or until the day an assessment
is issued under section 5747.13 of the Revised Code,
whichever occurs first.”
11 This section provides, in part, as
follows: “A servicemember shall neither lose nor
acquire a residence or domicile for purposes of taxation with
respect to the person, personal property, or income of the
servicemember by reason of being absent or present in any tax
jurisdiction of the United States solely in compliance with
military orders.”