Ohio Code § 1333.11

§ 1333.11.

As used in sections 1333.11 to 1333.21 of the Revised Code : (A) “ Cost to the retailer ” means the invoice cost of cigarettes to the retailer, or the replacement cost of

cigarettes to the retailer within thirty days prior to the date of sale, in the quantity

last purchased, whichever is lower, less all trade discounts except customary discounts

for cash, to which shall be added the cost of doing business by the retailer as evidenced

by the standards and the methods of accounting regularly employed by the retailer

in the retailer's allocation of overhead costs and expenses, paid or incurred.  “Cost to the retailer” must include, without limitation, labor, including salaries

of executives and officers, rent, depreciation, selling costs, maintenance of equipment,

delivery costs, all types of licenses, insurance, advertising, and taxes, exclusive

of county cigarette taxes paid or payable on the cigarettes.  Where the sale to the retailer is on a cash and carry basis, the cartage to the

retail outlet, if performed or paid for by the retailer, shall be added to the invoice

cost of the cigarettes to the retailer.  In the absence of proof of a lesser or higher cost by the retailer, the cartage

cost shall be three-fourths of one per cent of the invoice cost of the cigarettes

to the retailer, not including the amount added thereto by the wholesaler for the

face value of state and county cigarette tax stamps affixed to each package of cigarettes. (B) In the absence of proof of a lesser or higher cost of doing business by the retailer

making the sale, the cost of doing business to the retailer shall be eight per cent

of the invoice cost of the cigarettes to the retailer exclusive of the face value

of county cigarette taxes paid on the cigarettes or of the replacement cost of the

cigarettes to the retailer within thirty days prior to the date of sale in the quantity

last purchased exclusive of the face value of county cigarette taxes paid on the cigarettes,

whichever is lower, less all trade discounts except customary discounts for cash. (C) “ Cost to the wholesaler ” means the manufacturer gross invoice cost of the cigarettes to the wholesaler, or

the replacement cost of the cigarettes to the wholesaler within thirty days prior

to the date of sale, in the quantity last purchased, whichever is lower, less all

trade discounts except customary discounts for cash, to which shall be added a wholesaler's

markup to cover in part the cost of doing business, which wholesaler's markup, in

the absence of proof filed with and approved by the tax commissioner of a lesser or

higher cost of doing business by the wholesaler as evidenced by the standards and

methods of accounting regularly employed by the wholesaler in the wholesaler's allocation

of overhead costs and expenses, paid or incurred, including without limitation, labor,

salaries of executives and officers, rent, depreciation, selling costs, maintenance

of equipment, delivery, delivery costs, all types of licenses, taxes, insurance, and

advertising, shall be three and five-tenths per cent of such invoice cost of the cigarettes

to the wholesaler, to which shall be added the full face value of state and county

cigarette tax stamps affixed by the wholesaler to each package of cigarettes, or of

the replacement cost of the cigarettes to the wholesaler within thirty days prior

to the date of sale in the quantity last purchased, whichever is lower, less all trade

discounts except customary discounts for cash. Where the sale by the wholesaler to the retailer is on a cash and carry basis, the

wholesaler may, in the absence of proof of a lesser or higher cost filed with and

approved by the tax commissioner, allow to the retailer an amount not to exceed three-fourths

of one per cent of the “cost to the wholesaler” excluding the amount added thereto

for the face value of state and county cigarette tax stamps affixed to each package

of cigarettes. The tax commissioner may require a wholesaler who is filing proof of a lesser or higher

cost of doing business under this section to have an independent certified public

accountant certify that the calculation of the wholesaler's cost of doing business

has been made in accordance with generally accepted accounting principles.  The commissioner also may request, and upon such a request the wholesaler shall

provide, any additional information the commissioner considers necessary during review

of the filing.  The commissioner shall deny the wholesaler's request for a new cost of doing business

if the wholesaler fails to provide such information.  The commissioner shall approve or deny the wholesaler's request within ninety days

after receipt of the original filing or of the filing of requested additional information,

whichever is later.  A denial is subject to appeal under section 5717.02 of the Revised Code . (D) Any person licensed to sell cigarettes as both a wholesaler and a retailer, who does

sell cigarettes at retail, shall, in determining “cost to the retailer”, first compute

“cost to the wholesaler” as provided in division (C) of this section;  that “cost

to the wholesaler” shall then be used in lieu of the lower of either invoice cost

or replacement cost less all trade discounts except customary discounts for cash in

computing “cost to the retailer” as provided in divisions (A) and (B) of this section. (E) In all advertisements, offers for sale, or sales involving two or more items at a

combined price and in all advertisements, offers for sale, or sales involving the

giving of any concession of any kind, whether it be coupons or otherwise, the retailer's

or wholesaler's selling price shall not be below the “cost to the retailer” or the

“cost to wholesaler”, respectively, of all articles, products, commodities, and concessions

included in such transactions. (F)(1) “ Sell at retail ,” “ sales at retail ,” and “ retail sales ” include any transfer of title to tangible personal property for a valuable consideration

made, in the ordinary course of trade or usual prosecution of the seller's business,

to the purchaser for consumption or use. (2) “ Sell at wholesale ,” “ sales at wholesale ,” and “ wholesale sales ” include any such transfer of title to tangible personal property for the purpose

of resale. (G) “ Retailer ” includes any person who is permitted to sell cigarettes at retail within this state

under section 5743.15 of the Revised Code . (H) “ Wholesaler ” includes any person who is permitted to sell cigarettes at wholesale within this

state under that section. (I) “ Person ” includes individuals, corporations, partnerships, associations, joint-stock companies,

business trusts, unincorporated organizations, receivers, or trustees. (J) “ County cigarette taxes ” means the taxes levied under section 5743.021 , 5743.024 , or 5743.026 of the Revised Code .