Ohio’s current local income tax structure allows municipalities to tax employees even if they do not physically work in the city that is taxing them.
This is a common rationale: employees can be taxed based upon where they work because they are using city resources like police, fire, and other public services while they are at work.
However, what happens when people stop actually working at that location? Ohio Governor Mike DeWine’s statewide COVID-19 Stay-at-Home order earlier this year has forced many employees to work from home. This means Ohioans are paying taxes to cities whose services they no longer use.
At the beginning of the pandemic in March, lawmakers passed HB 197 which deemed all work performed at private homes during the public health emergency to have been performed at the employees’ principal place of work for the purposes of taxation. In other words, cities were permitted to collect income tax dollars as though businesses were operating under normal circumstances.
This was originally passed under the assumption that it would be a temporary law, only to stay in place until 30 days after Gov. Mike DeWine ended his state of emergency declaration. As the pandemic has carried on far longer than initially anticipated, the temporary nature of the law has been strained.
In July, The Buckeye Institute and three of its employees filed a lawsuit against the City of Columbus and the State of Ohio. The lawsuit asserts it is unconstitutional to allow cities to tax income of workers who do not live there, and were not permitted to work there during the Stay-at-Home order.
In order to comply with Ohio’s emergency orders, which required nonessential businesses to close, The Buckeye Institute required its employees to work from home. According to The Buckeye Institute, this is unlawful taxation and “a clear violation of due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and violates Article I, Section 1 of the Ohio Constitution.”
Robert Alt, President of The Buckeye Institute, cited the Hillenmeyer v. Cleveland Board of Review Supreme Court decision from 2015. In Hillenmeyer, the Court unanimously decided that local taxation of a non-resident’s services must be based on the location of that person when the work was performed.
While the Ohio Supreme Court deliberates on the case, state legislators have said they plan to work on passing a new law before the end of the year. Two companion bills, inspired by The Buckeye Institute’s lawsuit, have been introduced in the Ohio Legislature.
Rep. Kris Jordan, R-Delaware, has sponsored HB 754 and Sen. Kristina Roegner, R-Hudson, has introduced its companion, SB 352. Both pieces of legislation would amend income tax withholding rules for work-from-home employees related to the COVID-19 pandemic. Employees in Ohio would be taxed where they live rather than where they work.
Sen. Roegner said, “I don’t believe it’s constitutional to be able to tax someone that doesn’t step foot in your city.”
However, while various lawmakers like Roegner have expressed their beliefs that the law is unfair, cities across Ohio say repealing the temporary law would hurt city budgets. Organizations, such as the Ohio Municipal League, have also come out against such legislation.
Ohio Municipal League Executive Director, Kent Scarrett, said that “any shift from how income taxes are collected with the coronavirus emergency measure needs extensive debate.” Membership to the Ohio Municipal League is given to any city or village in Ohio that pays annual dues. In other words, many people who are directly part of City Government are key members of the Ohio Municipal League.
If a new law is not passed before the end of the 133rd General Assembly, Sen. Roegner has promised to bring a new bill back to the Statehouse in January 2021.
The lawsuit and pending legislation of HB 754 and SB 352 could benefit taxpayers during the pandemic by simplifying how they pay taxes.