Provision of Personnel to Manufacturer Not Taxable as Employment Service in Ohio

A company that provided personnel to a pet food manufacturer was not subject to Ohio sales tax since it did not provide a taxable employment service. Under contract, the company would screen, hire, and train lower-level workers to assist in production operations at a pet food manufacturing plant. The company maintained an on-site office at the manufacturing plant, conducted interviews and tested applicants, and provided job orientation, uniforms, and safety equipment to those individuals selected for employment at the plant. The company was also required to schedule its workers, maintain an attendance policy, and process payroll for the personnel it provided. In order to qualify as a taxable employment service in Ohio, the personnel provided must perform work under the “supervision or control” of another. In this case, the personnel were under the “supervision or control” of the company providing the personnel, not the manufacturer. Additionally, per an agreement between the company and the manufacturer, the company had “the exclusive right to control” its workers. Neither the company or the manufacturer could “assign, direct, or oversee” the activities of the other party’s workforce. As a result, the provision of the personnel did not qualify as a taxable employment service. These rules will vary from state to state on what constitutes an employment service versus employing an independent contractor to perform services. (Seaton Corporation v. Testa, Ohio Supreme Court, No. 2018-Ohio-4911, December 12, 2018)

Posted on December 18, 2018