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Ohio Supreme Court takes up municipal income tax withholding/refund case

Written on Jun 9, 2022

From The Buckeye Instititute  

On Tuesday, the Ohio Supreme Court announced that it will hear Schaad v. Alder, one of The Buckeye Institute’s five municipal income tax cases challenging Ohio’s emergency-based system. The case targets municipal tax refunds that were denied to otherwise qualified remote workers during the first year of the pandemic. 

The Buckeye Institute said “For more than 70 years, the Ohio Supreme Court has recognized that the Constitution prohibits local governments from taxing the income of individuals who neither live nor perform work in the taxing city—and, yes, the Constitution applies even during a global pandemic,” said Robert Alt, president and chief executive officer of The Buckeye Institute and one of the lawyers representing Mr. Schaad. “The Ohio Supreme Court finally has the opportunity to correct this Orwellian system in which the state forced people to work from home under threat of criminal penalties, but then also absurdly deemed that same work to have been performed where it wasn’t—often in higher-taxed office locations.” 

The Ohio Supreme Court’s previous ruling in Hillenmeyer v. Cleveland clarified that local taxation of nonresidents’ compensation “must be based on the location of the taxpayer when the services were performed.” 

Even before the pandemic, Josh Schaad of Blue Ash, Ohio, worked offsite multiple days per week for his employer, and—in years past—requested and received proportional refunds for work performed outside of Cincinnati. When the Ohio General Assembly passed House Bill 197 in 2020—which deemed all work performed elsewhere because of the health emergency to have been performed at the employee’s principal place of work for income tax withholding purposes—Mr. Schaad’s Cincinnati municipal income tax bill increased even though he spent less time at his primary office location in Cincinnati than he had in the prior year. 

OSCPA worked in 2021 to secure a law change in H.B. 110 ensuring qualified remote workers would be able to receive municipal tax refunds for Tax Year 2021.  In that same bill, the Legislature left it up to the Ohio Supreme Court to address refunds for 2020. The goal is that the Ohio Supreme Court will clearly recognize the distinction between employers’ withholding and employees’ tax liability.  

The Court has yet to set a hearing schedule on this case, but it likely will not be until late 2022 or 2023. Justices Kennedy, DeWine, Fischer, and Donnelly voted to take up the case.  Justices O’Connor, Stewart, and Brunner dissented.