OAG 1994-002.

• Case Date: March 07, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-002. March 7, 1994OPINION NO. 1994-002The Honorable David A. SamsMadison County Prosecuting Attorney23 West High Street London, Ohio 43140-1099 Dear Prosecutor Sams: You have requested an opinion whether a county is liable for payment of income tax due a municipal corporation in the event that, in the case of a county employee subject to the tax, payroll withholding has not occurred. If so, you also ask whether this liability extends to penalties and interest that accrue with respect to the amount of tax that should have been withheld and paid to the municipality.

R.C. 9.42 Imposes Duty on County to Withhold Municipal Income Taxes From the Wages or Salaries of County Employees

R.C. 9.42 provides as follows:

Notwithstanding section 1321.32 of the Revised Code,(fn1) the state and any of its political subdivisions or instrumentalities shall deduct from the wages or salaries of public employees, as defined in section 9.40 of the Revised Code, and employees of school districts, the amount of municipal income tax levied upon the income of the employee. The director of administrative services shall establish by rule procedures for the deduction of municipal income taxes from the wages or salaries of employees of the state or its instrumentalities.

Counties have long been recognized as political subdivisions of the state, Board of Comm'rs v. Mighels, 7 Ohio St. 109, 118 (1857), and, pursuant to R.C. 9.40, persons "employed and paid in whole or in part" by a county are public employees. Thus, R.C. 9.42 requires the county to withhold municipal income taxes from the wages and salaries of county employees who are subject to such taxes. Prior to the enactment of R.C. 9.42, payroll officers of the state and its political subdivisions could not withhold municipal income taxes, even if the relevant municipal ordinance required employers to withhold, "[s]ince there was no state law authorizing the payroll officer involved to make such a deduction ... and no law granting municipalities the power to require officials of the state or of its political subdivisions or instrumentalities to do any act for which no provision was made in law." 1981 Op. Att'y Gen. No. 81-006 at 2-20. Although a municipality has the authority to require by ordinance that employers withhold municipal income...