(A) The following terms as used in this section:
(1) "EMPLOYER" includes a person that is a related member to or of an employer.
(2) "PROFESSIONAL ATHLETE" means an athlete who performs services in a professional athletic event for wages or other remuneration.
(3) "PROFESSIONAL ENTERTAINER" means a person who performs services in the professional performing arts for wages or other remuneration on a per-event basis.
(4) "PUBLIC FIGURE" means a person of prominence who performs services at discrete events, such as speeches, public appearances, or similar events, for wages or other remuneration on a per-event basis.
(5) "FIXED LOCATION" means a permanent place of doing business in this state, such as an office, warehouse, storefront, or similar location owned or controlled by an employer.
(6) "WORKSITE LOCATION" means a construction site or other temporary worksite in this state at which the employer provides services for more than twenty days during the calendar year. "Worksite location" does not include the home of an employee.
(7) "PRINCIPAL PLACE OF WORK" means the fixed location to which an employee is required to report for employment duties on a regular and ordinary basis. If the employee is not required to report for employment duties on a regular and ordinary basis to a fixed location, "principal place of work" means the worksite location in this state to which the employee is required to report for employment duties on a regular and ordinary basis. If the employee is not required to report for employment duties on a regular and ordinary basis to a fixed location or worksite location, "principal place of work" means the location in this state at which the employee spends the greatest number of days in a calendar year performing services for or on behalf of the employee's employer.
If there is not a single municipal corporation in which the employee spent the "greatest number of days in a calendar year" performing services for or on behalf of the employer, but instead there are two or more municipal corporations in which the employee spent an identical number of days that is greater than the number of days the employee spent in any other municipal corporation, the employer shall allocate any of the employee's qualifying wages subject to division (B)(1)(a) of this section among those two or more municipal corporations. The allocation shall be made using any fair and reasonable method, including, but not limited to, an equal allocation among such municipal corporations or an allocation based upon the time spent or sales made by the employee in each such municipal corporation. A municipal corporation to which qualifying wages are allocated under this division shall be the employee's "principal place of work" with respect to those qualifying wages for the purposes of this section.
For the purposes of this division, the location at which an employee spends a particular day shall be deemed in accordance with division (B)(2) of this section, except that "location" shall be substituted for "municipal corporation" wherever "municipal corporation" appears in that division.
(B) (1) Subject to divisions (C), (E), (F), and (G) of this section, an employer is not required to withhold municipal income tax on qualifying wages paid to an employee for the performance of personal services in a municipal corporation that imposes such a tax if the employee performed such services in the municipal corporation on twenty or fewer days in a calendar year, unless one of the following conditions applies:
(a) The employee's principal place of work is located in the Municipality.
(b) The employee performed services at one or more presumed worksite locations in the Municipality. For the purposes of this division, "presumed worksite location" means a construction site or other temporary worksite in this state at which the employer provides services that can reasonably be expected by the employer to last more than twenty days in a calendar year. Services can "reasonably be expected by the employer to last more than twenty days" if either of the following applies at the time the services commence:
(i) The nature of the services are such that it will require more than twenty days of actual services to complete the services;
(ii) The agreement between the employer and its customer to perform services at a location requires the employer to perform actual services at the location for more than twenty days.
(c) The employee is a resident of the Municipality and has requested that the employer withhold tax from the employee's qualifying wages as provided in section 182.051 of this Chapter.
(d) The employee is a professional athlete, professional entertainer, or public figure, and the qualifying wages are paid for the performance of services in the employee's capacity as a professional athlete, professional entertainer, or public figure within the Municipality.
(2) For the purposes of division (B)(1) of this section, an employee shall be considered to have spent a day performing services in a municipal corporation only if the employee spent more time performing services for or on behalf of the employer in that municipal corporation than in any other municipal corporation on that day. For the purposes of determining the amount of time an employee spent in a particular location, the time spent performing one or more of the following activities shall be considered to have been spent at the employee's principal place of work:
(a) Traveling to the location at which the employee will first perform services for the employer for the day;
(b) Traveling from a location at which the employee was performing services for the employer to any other location;
(c) Traveling from any location to another location in order to pick up or load, for the purpose of transportation or delivery, property that has been purchased, sold, assembled, fabricated, repaired, refurbished, processed, remanufactured, or improved by the employee's employer;
(d) Transporting or delivering property described in division (B)(2)(c) of this section, provided that, upon delivery of the property, the employee does not temporarily or permanently affix the property to real estate owned, used, or controlled by a person other than the employee's employer;
(e) Traveling from the location at which the employee makes the employee's final delivery or pick-up for the day to either the employee's principal place of work or a location at which the employee will not perform services for the employer.
(C) If the principal place of work of an employee is located in a municipal corporation that imposes an income tax in accordance with this chapter, the exception from withholding requirements described in division (B)(1) of this section shall apply only if, with respect to the employee's qualifying wages described in that division, the employer withholds and remits tax on such qualifying wages to the municipal corporation in which the employee's principal place of work is located.
(D) (1) Except as provided in division (D)(2) of this section, if, during a calendar year, the number of days an employee spends performing personal services in a municipal corporation exceeds the twenty-day threshold described in division (B)(1) of this section, the employer shall withhold and remit tax to that municipal corporation for any subsequent days in that calendar year on which the employer pays qualifying wages to the employee for personal services performed in that municipal corporation.
(2) An employer required to begin withholding tax for a municipal corporation under division (D)(1) of this section may elect to withhold tax for that municipal corporation for the first twenty days on which the employer paid qualifying wages to the employee for personal services performed in that municipal corporation.
(3) If an employer makes the election described in division (D)(2) of this section, the taxes withheld and paid by such an employer during those first twenty days to the municipal corporation in which the employee's principal place of work is located are refundable to the employee.
(E) Without regard to the number of days in a calendar year on which an employee performs personal services in any municipal corporation, an employer shall withhold municipal income tax on all of the employee's qualifying wages for a taxable year and remit that tax only to the municipal corporation in which the employer's fixed location is located if the employer qualifies as a small employer as defined in Section 182.03 of this Chapter. To determine whether an employer qualifies as a small employer for a taxable year, an Income Tax Director may require the employer to provide the Income Tax Director with the employer's federal income tax return for the preceding taxable year.
(F) Divisions (B)(1) and (D) of this section shall not apply to the extent that the Income Tax Director and an employer enter into an agreement regarding the manner in which the employer shall comply with the requirements of section 182.051 of this Chapter.
(G) In the case of a person performing personal services at a petroleum refinery located in a municipal corporation that imposes a tax on income, an employer is not required to withhold municipal income tax on the qualifying wages of such a person if the person performs those services on twelve or fewer days in a calendar year, unless the principal place of work of the employer is located in another municipal corporation in this state that imposes a tax applying to compensation paid to the person for services performed on those days and the person is not liable to that other municipal corporation for tax on the compensation paid for such services. For the purposes of this division, a petroleum refinery is a facility with a standard industrial classification code facility classification of 2911, petroleum refining.
Notwithstanding division (D) of this section, if, during a calendar year, the number of days an individual performs personal services at a petroleum refinery exceeds twelve, the employer shall withhold tax for the municipal corporation for the first twelve days for which the employer paid qualifying wages to the individual and for all subsequent days in the calendar year on which the individual performed services at the refinery.
(H) For the purposes of division (B)(1)(d) of this section:
(1) In the case of employees of a professional athletic team who are nonresident members of the professional athletic team, the deduction and withholding of municipal income tax from personal service compensation shall attach to the entire amount of wages, salaries and other compensation received for duty days that occur in the Municipality. To determine the Municipality-source income of a nonresident member of a professional athletic team not paid specifically for duty days, the following allocation formula must be used: The qualifying incentive payments, signing bonuses, reporting bonuses, incentive bonuses, roster bonuses and other extras, multiplied by a fraction, the numerator of which is the number of duty days in the Municipality during the taxable year, and the denominator of which is the total days spent both within and without the Municipality during the taxable year.
(a) "PROFESSIONAL ATHLETIC TEAM" includes, but is not limited to, any professional baseball, basketball, football, soccer or hockey team.
(b) "MEMBER OF A PROFESSIONAL ATHLETIC TEAM" shall include those employees who are active team members, team members on the disabled list and any other persons required to travel with and perform services on behalf of a professional athletic team on a regular basis.
(c) "DUTY DAYS" shall mean all days during the taxable year from the beginning of the professional athletic team's official preseason training period through the last game in which the team competes or is scheduled to compete.
(i) Duty days shall also include days on which a member of a professional athletic team renders a service for a team on a date that does not fall within the aforementioned period, such as participating in instructional leagues, all-star exhibition games or promotional activities. In addition, duty days include days during the off-season when a team member undertakes training activities as part of a team imposed program, if conducted at facilities of or engaged by the team.
(ii) Included within duty days shall be game days, practice days, days spent at team meetings, promotional activities and preseason training camps, and days served with the team through all postseason games in which the team competes or is scheduled to compete.
(iii) Travel days that include a game, practice, meeting, promotional activity or other similar team event are considered duty days spent in the Municipality. Travel days involving no game, practice or required service will not be apportioned to the Municipality as duty days.
(iv) Duty days for any person who joins a team during the season shall begin on the day such person joins the team, and for any person who leaves the team shall end on the day such person leaves the team. Where a person switches teams during a taxable year, a separate duty day calculation shall be made for the period such person was with each team.
(v) Days for which a member of a professional athletic team is not compensated and is not rendering services for the team in any manner, including days when such member has been suspended without pay and prohibited from performing services for the team shall not be treated as duty days.
(vi) Days for which a member of a professional athletic team is on the disabled list and performing no services for the team shall be presumed not to be duty days spent in the Municipality. However, such days are to be included in total duty days spent both within and outside of the Municipality.
(d) The term "total compensation for services rendered as a member of a professional athletic team" means the total compensation received during the taxable year for services rendered:
(i) From the beginning of the official pre-season training period through the last game in which the team competes or is scheduled to complete during that taxable year; and
(ii) During the taxable year on a date which does not fall within the aforementioned period including but not limited to participation in instructional leagues, all-star exhibition games or promotional activities.
(iii) Such compensation shall include, but is not limited to, salaries, wages bonuses and any other type of qualifying wages paid during the taxable year to a member of a professional athletic team for services performed in that year.
(2) The income of a nonresident entertainer or public figure is the entire amount received for performances, engagements or events that occur in the Municipality. In the case of a nonresident entertainer or public figure who is not paid specifically for a performance, the following allocation formula must be used: The income earned and subject to the tax is the total annual compensation multiplied by a fraction, the numerator of which is the number of performances the entertainer performed or was available to perform in the Municipality, and the denominator of which is the total number of performances that the entertainer was obligated to perform under contract or otherwise during the taxable year.
(a) Any person who, acting as a promoter, booking agent or employer, engages the services of, or arranges the appearance of any entertainer, public figure, entertainment act, sports event, band, orchestra, rock group or theatrical appearance in the Municipality and who makes any payment arising from said appearance shall be deemed to be an employer and shall, for purposes of the collection of the income tax, be required to withhold, report and remit to the tax administrator the tax at the applicable rate, on the gross amount so paid upon the completion of the engagement.
(b) Any person who rents facilities to or for any entertainer, public figure, entertainment act, sports event, band, orchestra, rock group, or theatrical performance for use in performing services in the Municipality, and who makes any payment to those performers arising from said use of the facilities, shall be deemed to be an employer and shall, for purposes of the collection of the income tax, be required to withhold, report and remit to the tax administrator the tax at the applicable rate, on the gross amount so paid upon the completion of the engagement.
(Ord. 238-2015. Passed 11-30-15.)