I concur in the well reasoned decision of Judge Troop herein, but wish to emphasize the basis upon which I have reached my determination that R. C. Chapter 5727 is applicable to power sold to municipalities for the consumption by such municipalities. At the outset, I am compelled to comment that we are significantly aware of the financial needs of our municipalities and the importance of extending relief from their budgetary problems wherever it may lawfully be supported. However, the relief sought here is not from an imposition of a direct tax upon the city, but is relief from the effects of a direct tax upon a private public utility.
It is within the power of the legislature to exempt certain property and activities within Ohio from direct taxation. The legislature also has the power to provide relief from the indirect effects of its taxes.
In Chapter 5727, more specifically R. C. 5727.32(J)(1), the legislature has expressly provided for the avoidance of the indirect effect of this excise tax on certain entities and activities. Such section provides that the gross receipts from interstate business or business done for the federal government, or sales to another public utility which is required to file an excise tax statement are to be excluded from the return made by the utility company. I agree that the receipts from the sale of power to the city of Columbus does not qualify under any of these stated categories. *Page 200
A specific example of the expressed intent of the General Assembly to insulate governmental entities from the indirect effect of a tax may be found in another chapter of Ohio law, that dealing with the Ohio sales tax. The chapter establishing a sales tax in Ohio provides for direct exemptions from such tax, as well as providing for indirect relief from the effects of the tax for certain express entities. R. C. 5739.02(B) (1) provides that the tax does not apply to "sales to the state, or any of its political subdivisions * * *."
In the same regard, we find that the legislature has provided additional express indirect relief from the sales tax to governmental entities at R. C. 5739.02(B) (13), wherein we note that the sales tax does not apply to the following:
"Building and construction materials sold to construction contractors for incorporation into a structure of improvement to real property under a construction contract with this state or a political subdivision thereof or with the United States government or any of its agencies, building and construction materials sold to construction contractors for incorporation into a structure or improvement to real property which are accepted for ownership by this state or any of its political subdivisions or by the United States government or any of its agencies at the time of completion of such structures or improvements * * *."
It is apparent that the latter section of law was enacted to specifically pronounce the legislative intent to relieve the governmental entities from the indirect effect of the sales tax, even though the "incidence" of the tax was upon the contractor, as stated in Huntington Natl. Bank v. Porterfield (1970),23 Ohio St. 2d 131, as pointed out in this decision by Judge Troop.
We conclude then that the exemption set forth in R. C. 5727.05 exempts the municipality from the direct liability for such tax, but does not relieve it from paying the total amounts charged by the utility company for the power consumed by the municipality, even though the rate charged for such power may well reflect the incidence of the tax. If the laws are to be amended to provide for this understandably sought-for relief for the municipalities, it must be the task of the legislature to do so. *Page 201