SB0317sam002 96TH GENERAL ASSEMBLY

Sen. Ira I. Silverstein

Filed: 2/24/2009

09600SB0317sam002 LRB096 09151 ASK 22100 a

AMENDMENT TO SENATE BILL 317

AMENDMENT NO. ______. Amend House Bill 734 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Cigarette Delivery Sales Reporting Act.

Section 5. Legislative findings and intent. The General Assembly finds that consumers are using the Internet to purchase cigarettes to avoid the taxes imposed by the State of Illinois on sale and use of cigarettes. The General Assembly further finds that because online sales have sharply risen over the years there is a large and increasing loss of revenue to the State caused by the evasion of sales and use taxes on cigarettes shipped in interstate commerce to Illinois customers. The General Assembly finds that to help identify purchasers of cigarettes from out-of-state sellers, the Department of Revenue uses information required to be provided by the federal Jenkins Act (15 U.S.C. §§375-377) in order to bill consumers for the taxes due. The General Assembly further finds that many cigarette sellers do not comply with the provisions of the Jenkins Act and that many other states, in order to address this problem, have enacted their own reporting laws intended to prevent further tax avoidance. Therefore, it is intent of the General Assembly in enacting this Act to facilitate the collection of all applicable State sales and use taxes on cigarettes sold to residents of this State over the Internet or by mail order by establishing a reporting requirement for out-of-state cigarette sellers and penalties for those persons who violate this Act.

Section 10. Definitions. As used in this Act, unless the context otherwise requires:

"Cigarette" means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not the tobacco is flavored, adulterated, or mixed with any other ingredient, and the wrapper or cover of which is made of paper or any other substance or material except whole tobacco leaf.

"Consumer" means an individual who is not a licensed cigarette distributor or a licensed cigarette retailer.

"Delivery sale" means a sale of cigarettes to a consumer in this State in which:

(1) the purchaser submits the order for the sale by means of a telephone or other method of voice transmission, a delivery service, or the Internet or other online service; or

(2) the cigarettes are delivered by a delivery service.

"Delivery service" means any person that is engaged in the commercial delivery of letters, packages, or other containers.

"Department" means the Department of Revenue.

"Person" means any natural individual, firm, partnership, association, joint stock company, joint adventure, public or private corporation however formed, limited liability company, or a receiver, executor, administrator, trustee, guardian, or other representative appointed by order of any court.

"Person accepting a purchase order for a delivery sale" means a person who fills a cigarette order given by a consumer and processes the order for mail, shipping or other delivery, or who contracts with another party to provide delivery service to the purchaser.

"Purchase order" means a written or electronic document authorizing a seller to provide cigarettes.

"Retail value" means the market price of the cigarettes plus all applicable taxes at the location where the cigarettes were mailed, shipped, or delivered.

Section 15. Delivery sales reporting requirements.

(a) Not later than the 15th day of each calendar month, each person that has made a delivery sale of delivered, mailed, or shipped cigarettes during the previous calendar month, or contracted with another party for delivery service in connection with a delivery sale made during the previous calendar month, shall file a report with the Department. The report shall contain the following information:

(1) the name, trade name, and address of the principal place of business of the seller and any other place of business of the seller;

(2) the name and address of the consumer to whom the delivery sale was made;

(3) the brand or brands of cigarettes that were sold in the delivery sale;

(4) the quantity of cigarettes that were sold in the delivery sale; and

(5) such other information as the Department may require by rule.

(b) A person that satisfies the requirements of 15 U.S.C. 376 is deemed to have met the requirements of this Section.

(c) The Department may adopt rules to authorize the electronic filing of the report required under this Section.

Section 20. Penalties; seizure and forfeiture; hearings.

(a) The Department shall impose the following penalties for each unreported sale of cigarettes:

(1) The first time a person violates Section 15 of this Act, the person shall be subject to a civil penalty of $1,000 or five times the retail value of the cigarettes involved in the violation, whichever is greater.

(2) In the case of a second or subsequent violation of Section 15 of this Act, the person shall be subject to a civil penalty of $5,000 or five times the retail value of the cigarettes involved in the violation, whichever is greater.

(b) The penalties prescribed under this Section are in addition to and not in lieu of any other penalty applicable under the laws of this State.

(c) Any cigarettes sold or attempted to be sold in a delivery sale that violates this Act may be seized by the Department and are subject to forfeiture.

(d) Any person aggrieved by a Department decision may, within 30 days after notice of that decision, protest in writing and request a hearing. The Department shall give notice to the person of the time and place for the hearing and shall hold a hearing before it issues a final administrative decision. In the absence of a protest and request for a hearing within 30 days, the Department's decision shall become final without any further determination being made or notice given.

Section 25. Enforcement. All enforcement proceedings under this Act shall be instituted by the Attorney General at the request of the Department to require compliance with this Act, to recover civil penalties authorized under Section 20 of this Act, and to seek any other remedy as provided by law.

Section 30. Rules. The Department may adopt rules to implement, administer and enforce this Act.

Section 905. The Department of Revenue Law of the Civil Administrative Code of Illinois is amended by changing Section 2505-380 as follows:

(20 ILCS 2505/2505-380) (was 20 ILCS 2505/39b47)

Sec. 2505-380. Revocation of or refusal to issue a certificate of registration, permit, or license. The Department has the power to refuse to issue or reissue or, after notice and an opportunity for a hearing, to revoke a certificate of registration, permit, or license issued or authorized to be issued by the Department if the applicant for or holder of the certificate of registration, permit, or license fails to file a return, or to pay the tax, fee, penalty, or interest shown in a filed return, or to pay any final assessment of tax, fee, penalty, or interest, as required by the tax or fee Act under which the certificate of registration, permit, or license is required or any other tax or fee Act administered by the Department.

The procedure for notice and hearing prior to revocation shall be as provided under the Act pursuant to which the certificate of registration, permit, or license was issued.

(Source: P.A. 91-239, eff. 1-1-00.)

Section 910. The Cigarette Tax Act is amended by changing Sections 1, 3-10, 6, 7, 8, 10, 11, 18b, 23, and 24 and by adding Sections 4d, 4e and 26a as follows:

(35 ILCS 130/1) (from Ch. 120, par. 453.1)

Sec. 1. For the purposes of this Act:

"Cigarette", when used in this Act, shall be construed to mean: Any roll for smoking made wholly or in part of tobacco irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, and the wrapper or cover of which is made of paper or any other substance or material except tobacco.

"Person" means any natural individual, firm, partnership, association, joint stock company, joint adventure, public or private corporation, however formed, limited liability company, or a receiver, executor, administrator, trustee, guardian or other representative appointed by order of any court.

"Prior Continuous Compliance Taxpayer" means any person who is licensed under this Act and who, having been a licensee for a continuous period of 5 years, is determined by the Department not to have been either delinquent or deficient in the payment of tax liability during that period or otherwise in violation of this Act. Also, any taxpayer who has, as verified by the Department, continuously complied with the condition of his bond or other security under provisions of this Act for a period of 5 consecutive years shall be considered to be a "Prior continuous compliance taxpayer". In calculating the consecutive period of time described herein for qualification as a "prior continuous compliance taxpayer", a consecutive period of time of qualifying compliance immediately prior to the effective date of this amendatory Act of 1987 shall be credited to any licensee who became licensed on or before the effective date of this amendatory Act of 1987.

"Department" means the Department of Revenue.

"Sale" means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person.

"Original Package" means the individual packet, box or other container whatsoever used to contain and to convey cigarettes to the consumer upon which a tax stamp or other indicia of tax payment is or should be affixed.

"Distributor" means any and each of the following:

(1) Any person engaged in the business of selling cigarettes in this State who brings or causes to be brought into this State from without this State any original packages of cigarettes, on which original packages there is no authorized evidence underneath a sealed transparent wrapper showing that the tax liability imposed by this Act has been paid or assumed by the out-of-State seller of such cigarettes, for sale or other disposition in the course of such business.

(2) Any person who makes, manufactures or fabricates cigarettes in this State for sale in this State, except a person who makes, manufactures or fabricates cigarettes as a part of a correctional industries program for sale to residents incarcerated in penal institutions or resident patients of a State-operated mental health facility.

(3) Any person who makes, manufactures or fabricates cigarettes outside this State, which cigarettes are placed in original packages contained in sealed transparent wrappers, for delivery or shipment into this State, and who elects to qualify and is accepted by the Department as a distributor under Section 4b of this Act.

"Distributor" does not include any person with respect to a sale of cigarettes to a purchaser for use or consumption, and not for resale.

"Place of business" shall mean and include any place where cigarettes are sold or where cigarettes are manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.

"Business" means any trade, occupation, activity or enterprise engaged in for the purpose of selling cigarettes in this State.

"Retailer" means any person who engages in the making of transfers of the ownership of, or title to, cigarettes to a purchaser for use or consumption and not for resale in any form, for a valuable consideration. "Retailer" does not include a person:

(1) who transfers to residents incarcerated in penal institutions or resident patients of a State-operated mental health facility ownership of cigarettes made, manufactured, or fabricated as part of a correctional industries program; or

(2) who transfers cigarettes to a not-for-profit research institution that conducts tests concerning the health effects of tobacco products and who does not offer the cigarettes for resale.

"Retailer" shall be construed to include any person who engages in the making of transfers of the ownership of, or title to, cigarettes to a purchaser, for use or consumption by any other person to whom such purchaser may transfer the cigarettes without a valuable consideration, except a person who transfers to residents incarcerated in penal institutions or resident patients of a State-operated mental health facility ownership of cigarettes made, manufactured or fabricated as part of a correctional industries program.

"Unstamped package of cigarettes" means a package of cigarettes that does not bear a tax stamp as required by this Act, including a package of cigarettes that bears a tax stamp of another state or taxing jurisdiction, a package of cigarettes that bears a counterfeit tax stamp, and a stamped or unstamped package of cigarettes that is marked "Not for sale in the United States".

(Source: P.A. 95-462, eff. 8-27-07.)

(35 ILCS 130/3-10)

Sec. 3-10. Cigarette enforcement.

(a) Prohibitions. It is unlawful for any person:

(1) to sell or distribute in this State; to acquire, hold, own, possess, or transport, for sale or distribution in this State; or to import, or cause to be imported into this State for sale or distribution in this State:

(A) any cigarettes the package of which:

(i) bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed, or used in the United States, including but not limited to labels stating "For Export Only", "U.S. Tax Exempt", "For Use Outside U.S.", or similar wording; or

(ii) does not comply with:

(aa) all requirements imposed by or pursuant to federal law regarding warnings and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States, including but not limited to the precise warning labels specified in the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; and

(bb) all federal trademark and copyright laws;

(B) any cigarettes imported into the United States in violation of 26 U.S.C. 5754 or any other federal law, or implementing federal regulations;

(C) any cigarettes that such person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed, or used in the United States; or

(D) any cigarettes for which there has not been submitted to the Secretary of the U.S. Department of Health and Human Services the list or lists of the ingredients added to tobacco in the manufacture of the cigarettes required by the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1335a;

(2) to alter the package of any cigarettes, prior to sale or distribution to the ultimate consumer, so as to remove, conceal, or obscure:

(A) any statement, label, stamp, sticker, or notice described in subdivision (a)(1)(A)(i) of this Section;

(B) any health warning that is not specified in, or does not conform with the requirements of, the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; or

(3) to affix any stamp required pursuant to this Act to the package of any cigarettes described in subdivision (a)(1) of this Section or altered in violation of subdivision (a)(2).

(b) Documentation. On the first business day of each month, each person licensed to affix the State tax stamp to cigarettes shall file with the Department, for all cigarettes imported into the United States to which the person has affixed the tax stamp in the preceding month:

(1) a copy of:

(A) the permit issued pursuant to the Internal Revenue Code, 26 U.S.C. 5713, to the person importing the cigarettes into the United States allowing the person to import the cigarettes; and

(B) the customs form containing, with respect to the cigarettes, the internal revenue tax information required by the U.S. Bureau of Alcohol, Tobacco and Firearms;

(2) a statement, signed by the person under penalty of perjury, which shall be treated as confidential by the Department and exempt from disclosure under the Freedom of Information Act, identifying the brand and brand styles of all such cigarettes, the quantity of each brand style of such cigarettes, the supplier of such cigarettes, and the person or persons, if any, to whom such cigarettes have been conveyed for resale; and a separate statement, signed by the individual under penalty of perjury, which shall not be treated as confidential or exempt from disclosure, separately identifying the brands and brand styles of such cigarettes; and

(3) a statement, signed by an officer of the manufacturer or importer under penalty of perjury, certifying that the manufacturer or importer has complied with:

(A) the package health warning and ingredient reporting requirements of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333 and 1335a, with respect to such cigarettes; and

(B) the provisions of Exhibit T of the Master Settlement Agreement entered in the case of People of the State of Illinois v. Philip Morris, et al. (Circuit Court of Cook County, No. 96-L13146), including a statement indicating whether the manufacturer is, or is not, a participating tobacco manufacturer within the meaning of Exhibit T.

(c) Administrative sanctions.

(1) Upon finding that a distributor or retailer has committed any of the acts prohibited by subsection (a), knowing or having reason to know that he or she has done so, or has failed to comply with any requirement of subsection (b), the Department may revoke or suspend the license or licenses of that any distributor or retailer pursuant to the procedures set forth in Section 6 and impose on the distributor or retailer a civil penalty in an amount not to exceed the greater of 500% of the retail value of the cigarettes involved or $5,000.

(2) Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this State in violation of this Section shall be deemed contraband under this Act and are subject to seizure and forfeiture as provided in this Act, and all such cigarettes seized and forfeited shall be destroyed. Such cigarettes shall be deemed contraband whether the violation of this Section is knowing or otherwise.

(d) Unfair trade practices. A violation of subsection (a) or subsection (b) of this Section shall constitute an unlawful practice as provided in the Consumer Fraud and Deceptive Business Practices Act.

(d-5) Criminal penalties. A person who violates subsection (a) or subsection (b) of this Section shall be guilty of a Class 4 felony.

(e) Unfair cigarette sales. For purposes of the Trademark Registration and Protection Act and the Counterfeit Trademark Act, cigarettes imported or reimported into the United States for sale or distribution under any trade name, trade dress, or trademark that is the same as, or is confusingly similar to, any trade name, trade dress, or trademark used for cigarettes manufactured in the United States for sale or distribution in the United States shall be presumed to have been purchased outside of the ordinary channels of trade.

(f) General provisions.

(1) This Section shall be enforced by the Department; provided that, at the request of the Director of Revenue or the Director's duly authorized agent, the State police and all local police authorities shall enforce the provisions of this Section. The Attorney General has concurrent power with the State's Attorney of any county to enforce this Section.

(2) For the purpose of enforcing this Section, the Director of Revenue and any agency to which the Director has delegated enforcement responsibility pursuant to subdivision (f)(1) may request information from any State or local agency and may share information with and request information from any federal agency and any agency of any other state or any local agency of any other state.

(3) In addition to any other remedy provided by law, including enforcement as provided in subdivision (a)(1), any person may bring an action for appropriate injunctive or other equitable relief for a violation of this Section; actual damages, if any, sustained by reason of the violation; and, as determined by the court, interest on the damages from the date of the complaint, taxable costs, and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of 3 times the actual damages sustained by reason of the violation.

(g) Definitions. As used in this Section:

"Importer" means that term as defined in 26 U.S.C. 5702(1).

"Package" means that term as defined in 15 U.S.C. 1332(4).

(h) Applicability.

(1) This Section does not apply to:

(A) cigarettes allowed to be imported or brought into the United States for personal use; and

(B) cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 U.S.C. 1555(b) and any implementing regulations; except that this Section shall apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.

(2) The penalties provided in this Section are in addition to any other penalties imposed under other provision of law.

(Source: P.A. 91-810, eff. 6-13-00.)

(35 ILCS 130/4d new)

Sec. 4d. Retailer's License.

(a) Commencing January 1, 2010, no person may engage in business as a retailer of cigarettes in this State without first having obtained a retailer's license from the Department. Application for a license shall be made to the Department in form as furnished and prescribed by the Department. Each applicant for a license under this Section shall furnish to the Department on the form signed and verified by the applicant the following information:

(1) the name and address of the applicant;

(2) the address of the location at which the applicant proposes to engage in business as a retailer of cigarettes in this State; and

(3) such other additional information as the Department may lawfully require by its rules and regulations.

(b) The annual license fee payable to the Department for each retailer's license shall be $250. The fee will be placed into the Tax Compliance and Administration Fund and used towards the cost of retail inspections. Each applicant for a license shall pay that fee to the Department at the time of submitting the application for a license to the Department.

(c) The Department may, in its discretion, require an applicant who is required to procure a retailer's license to file with the application a joint and several bond. If required, such bond shall be executed to the Department of Revenue, with good and sufficient surety or sureties residing or licensed to do business within the State of Illinois, in an amount of not less than $2,500, conditioned upon the true and faithful compliance by the licensee with all of the provisions of this Act. If required, such bond, or a reissue thereof, or a substitute therefor, shall be kept in effect during the entire period covered by the license. A separate application for license shall be made, a separate annual license fee paid, and, if required, a separate bond filed, for each place of business at which a person who is required to procure a retailer's license under this Section proposes to engage in business as a retailer in Illinois under this Act.

The following are ineligible to receive a retailer's license under this Act:

(1) a person who is not of good character and reputation in the community in which he resides;

(2) a person who has been convicted of a felony under any federal or State law, if the Department, after investigation and a hearing, if requested by the applicant, determines that the person has not been sufficiently rehabilitated to warrant the public trust;

(3) a corporation, if any officer, manager, or director thereof, or any stockholder or stockholders owning in the aggregate more than 5% of the stock of the corporation, would not be eligible to receive a license under this Act for any reason;

(4) a person who possesses a distributor's license under Section 4 of this Act or a distributor's license under Section 4b of this Act.

(d) The Department, upon receipt of an application, license fee, and bond in proper form from a person who is eligible to receive a retailer's license under this Act, shall issue to the applicant a license in form as prescribed by the Department, which license shall permit the applicant to engage in business as a retailer under this Act at the place shown in the application. All licenses issued by the Department under this Section shall be valid for not to exceed one year after issuance unless sooner revoked, canceled or suspended as provided in this Act. No license issued under this Section is transferable or assignable. The license shall be conspicuously displayed in the place of business conducted by the licensee in Illinois under the license. The Department shall not issue a license to a retailer unless the retailer is also validly registered under the Retailers' Occupation Tax Act. A person who obtains a license as a retailer and then ceases to do business as specified in the license, or who does not commence business, or who obtains a distributor's license, or whose license is suspended or revoked, shall immediately surrender the license to the Department.

(e) Any person aggrieved by any decision of the Department under this subsection may, within 20 days after notice of the decision, protest and request a hearing. Upon receiving a request for a hearing, the Department shall give notice to the person requesting the hearing of the time and place fixed for the hearing and shall hold a hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to that person. In the absence of a protest and request for a hearing within 20 days, the Department's decision shall become final without any further determination being made or notice given.

(35 ILCS 130/4e new)

Sec. 4e. Purchases of Cigarettes by Licensed Retailers. A person who possesses a retailer's license under Section 4d of this Act shall obtain cigarettes for sale only from a licensed distributor.

(35 ILCS 130/6) (from Ch. 120, par. 453.6)

Sec. 6. Revocation, cancellation, or suspension of license.

(a) The Department may, after notice and hearing as provided for by this Act, revoke, cancel or suspend the license of any distributor or retailer for the violation of any provision of this Act, or for noncompliance with any provision herein contained, or for any noncompliance with any lawful rule or regulation promulgated by the Department under Section 8 of this Act or under the Department of Revenue Law, or because the licensee is determined to be ineligible for a distributor's license for any one or more of the reasons provided for in Section 4 of this Act, or because the licensee has been determined to be ineligible for a retailer's license for any one or more of the reasons provided for in Section 4d of this Act. However, no such license shall be revoked, cancelled or suspended, except after a hearing by the Department with notice to the distributor or retailer, as aforesaid, and affording such distributor or retailer a reasonable opportunity to appear and defend, and any distributor or retailer aggrieved by any decision of the Department with respect thereto may have the determination of the Department judicially reviewed, as herein provided.

(a-5) The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 20 of that Act.

(a-10) The Department shall suspend for 7 days the license of a retailer for a first violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

The Department shall suspend for 30 days the license of a retailer for a second violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

The Department shall revoke the license of a retailer for a third or subsequent violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

(b) Any distributor or retailer aggrieved by any decision of the Department under this Section may, within 20 days after notice of the decision, protest and request a hearing. Upon receiving a request for a hearing, the Department shall give notice in writing to the distributor or retailer requesting the hearing that contains a statement of the charges preferred against the distributor or retailer and that states the time and place fixed for the hearing. The Department shall hold the hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to the distributor or retailer. In the absence of a protest and request for a hearing within 20 days, the Department's decision shall become final without any further determination being made or notice given.

(c) No license so revoked, as aforesaid, shall be reissued to any such distributor or retailer within a period of 6 months after the date of the final determination of such revocation. No such license shall be reissued at all so long as the person who would receive a distributor's the license is ineligible to receive a distributor's license under this Act for any one or more of the reasons provided for in Section 4 of this Act, or so long as the person who would receive a retailer's license is ineligible to receive a retailer's license under this Act for any one or more of the reasons provided for in Section 4d of this Act.

(d) The Department upon complaint filed in the circuit court may by injunction restrain any person who fails, or refuses, to comply with any of the provisions of this Act from acting as a distributor of cigarettes in this State.

(Source: P.A. 91-901, eff. 1-1-01; 92-737, eff. 7-25-02.)

(35 ILCS 130/7) (from Ch. 120, par. 453.7)

Sec. 7. The Department or any officer or employee of the Department designated, in writing, by the Director thereof, shall at its or his or her own instance, or on the written request of any distributor, retailer, or other interested party to the proceeding, issue subpoenas requiring the attendance of and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records or memoranda. All subpoenas and subpoenas duces tecum issued under the terms of this Act may be served by any person of full age. The fees of witnesses for attendance and travel shall be the same as the fees of witnesses before the circuit court of this State; such fees to be paid when the witness is excused from further attendance. When the witness is subpoenaed at the instance of the Department or any officer or employee thereof, such fees shall be paid in the same manner as other expenses of the Department, and when the witness is subpoenaed at the instance of any other party to any such proceeding, the cost of service of the subpoena or subpoena duces tecum and the fee of the witness shall be borne by the party at whose instance the witness is summoned. In such case the Department, in its discretion, may require a deposit to cover the cost of such service and witness fees. A subpoena or subpoena duces tecum so issued shall be served in the same manner as a subpoena or subpoena duces tecum issued out of a court.

Any circuit court of this State, upon the application of the Department or any officer or employee thereof, or upon the application of any other party to the proceeding, may, in its discretion, compel the attendance of witnesses, the production of books, papers, records or memoranda and the giving of testimony before the Department or any officer or employee thereof conducting an investigation or holding a hearing authorized by this Act, by an attachment for contempt, or otherwise, in the same manner as production of evidence may be compelled before the court.

The Department or any officer or employee thereof, or any other party in an investigation or hearing before the Department, may cause the depositions of witnesses within the State to be taken in the manner prescribed by law for like depositions, or depositions for discovery in civil actions in courts of this State, and to that end compel the attendance of witnesses and the production of books, papers, records or memoranda, in the same manner hereinbefore provided.

(Source: P.A. 83-334.)

(35 ILCS 130/8) (from Ch. 120, par. 453.8)

Sec. 8. The Department may make, promulgate and enforce such reasonable rules and regulations relating to the administration and enforcement of this Act as may be deemed expedient.

Whenever notice is required by this Act, such notice may be given by United States certified or registered mail, addressed to the person concerned at his last known address, and proof of such mailing shall be sufficient for the purposes of this Act. Notice of any hearing provided for by this Act shall be so given not less than 7 days prior to the day fixed for the hearing.

Hearings provided for in this Act shall be held:

(1) In Cook County, if the taxpayer's principal place of business is in that county;

(2) At the Department's office nearest the taxpayer's principal place of business, if the taxpayer's principal place of business is in Illinois but outside Cook County;

(3) In Sangamon County, if the taxpayer's principal place of business is outside Illinois.

The Circuit Court of the County wherein the hearing is held has power to review all final administrative decisions of the Department in administering this Act. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Department under this Act. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Service upon the Director of Revenue or Assistant Director of Revenue of summons issued in any action to review a final administrative decision shall be service upon the Department. The Department shall certify the record of its proceedings if the distributor or retailer pays to it the sum of 75¢ per page of testimony taken before the Department and 25¢ per page of all other matters contained in such record, except that these charges may be waived where the Department is satisfied that the aggrieved party is a poor person who cannot afford to pay such charges. Before the delivery of such record to the person applying for it, payment of these charges must be made, and if the record is not paid for within 30 days after notice that such record is available, the complaint may be dismissed by the court upon motion of the Department.

No stay order shall be entered by the Circuit Court unless the distributor or retailer files with the court a bond in an amount fixed and approved by the court, to indemnify the State against all loss and injury which may be sustained by it on account of the review proceedings and to secure all costs which may be occasioned by such proceedings.

Whenever any proceeding provided by this Act is begun before the Department, either by the Department or by a person subject to this Act, and such person thereafter dies or becomes a person under legal disability before such proceeding is concluded, the legal representative of the deceased person or of the person under legal disability shall notify the Department of such death or legal disability. Such legal representative, as such, shall then be substituted by the Department for such person. If the legal representative fails to notify the Department of his or her appointment as such legal representative, the Department may, upon its own motion, substitute such legal representative in the proceeding pending before the Department for the person who died or became a person under legal disability.

(Source: P.A. 83-706.)

(35 ILCS 130/10) (from Ch. 120, par. 453.10)

Sec. 10. The Department, or any officer or employee designated in writing by the Director thereof, for the purpose of administering and enforcing the provisions of this Act, may hold investigations and hearings concerning any matters covered by this Act, and may examine books, papers, records or memoranda bearing upon the sale or other disposition of cigarettes by such distributor or retailer, and may issue subpoenas requiring the attendance of such distributor or retailer, or any officer or employee of such distributor or retailer, or any person having knowledge of the facts, and may take testimony and require proof, and may issue subpoenas duces tecum to compel the production of relevant books, papers, records and memoranda, for the information of the Department.

In the conduct of any investigation or hearing provided for by this Act, neither the Department, nor any officer or employee thereof, shall be bound by the technical rules of evidence, and no informality in the proceedings nor in the manner of taking testimony shall invalidate any rule, order, decision or regulation made, approved or confirmed by the Department.

The Director of Revenue, or any duly authorized officer or employee of the Department, shall have the power to administer oaths to such persons required by this Act to give testimony before the said Department.

The books, papers, records and memoranda of the Department, or parts thereof, may be proved in any hearing, investigation or legal proceeding by a reproduced copy thereof under the certificate of the Director of Revenue. Such reproduced copy shall, without further proof, be admitted into evidence before the Department or in any legal proceeding.

(Source: Laws 1965, p. 192.)

(35 ILCS 130/11) (from Ch. 120, par. 453.11)

Sec. 11. Every distributor and every retailer of cigarettes, who is required to procure a license under this Act, shall keep within Illinois, at his licensed address, complete and accurate records of cigarettes held, purchased, manufactured, brought in or caused to be brought in from without the State, and sold, or otherwise disposed of, and shall preserve and keep within Illinois at his licensed address all invoices, bills of lading, sales records, copies of bills of sale, inventory at the close of each period for which a return is required of all cigarettes on hand and of all cigarette revenue stamps, both affixed and unaffixed, and other pertinent papers and documents relating to the manufacture, purchase, sale or disposition of cigarettes. All books and records and other papers and documents that are required by this Act to be kept shall be kept in the English language, and shall, at all times during the usual business hours of the day, be subject to inspection by the Department or its duly authorized agents and employees. The Department may adopt rules that establish requirements, including record forms and formats, for records required to be kept and maintained by taxpayers. For purposes of this Section, "records" means all data maintained by the taxpayer, including data on paper, microfilm, microfiche or any type of machine-sensible data compilation. Those books, records, papers and documents shall be preserved for a period of at least 3 years after the date of the documents, or the date of the entries appearing in the records, unless the Department, in writing, authorizes their destruction or disposal at an earlier date. At all times during the usual business hours of the day any duly authorized agent or employee of the Department may enter any place of business of the distributor or retailer, without a search warrant, and inspect the premises and the stock or packages of cigarettes and the vending devices therein contained, to determine whether any of the provisions of this Act are being violated. If such agent or employee is denied free access or is hindered or interfered with in making such examination as herein provided, the license of the distributor or retailer at such premises shall be subject to revocation by the Department.

(Source: P.A. 88-480.)

(35 ILCS 130/18b) (from Ch. 120, par. 453.18b)

Sec. 18b. Any person licensed or required to be licensed as a retailer under this Act possessing original packages of unstamped packages of cigarettes is liable to pay to the Department, for deposit into the Tax Compliance and Administration Fund, a penalty for each such package of cigarettes, unless reasonable cause for possessing said unstamped packages of cigarettes can be established by the person upon whom the penalty is imposed. The penalty shall be $15 per package for possession of less than 101 packages and $25 for possession of each package in excess of 100 packages. This penalty is in addition to the taxes imposed by this Act. Such penalty may be recovered by the Department in a civil action. Reasonable cause shall be determined in each situation in accordance with rules adopted by the Department. The provisions of the Uniform Penalty and Interest Act (35 ILCS 735/) do not apply to this Section. With the exception of licensed distributors, anyone possessing cigarettes contained in original packages which are not tax stamped as required by this Act, or which are improperly tax stamped, shall be liable to pay, to the Department for deposit in the State Treasury, a penalty of $15 for each such package of cigarettes in excess of 100 packages. Such penalty may be recovered by the Department in a civil action.

(Source: P.A. 83-1428.)

(35 ILCS 130/23) (from Ch. 120, par. 453.23)

Sec. 23. Every distributor, retailer, or other person who shall knowingly and wilfully sell or offer for sale any original package, as defined in this Act, having affixed thereto any fraudulent, spurious, imitation or counterfeit stamp, or stamp which has been previously affixed, or affixes a stamp which has previously been affixed to an original package, or who shall knowingly and wilfully sell or offer for sale any original package, as defined in this Act, having imprinted thereon underneath the sealed transparent wrapper thereof any fraudulent, spurious, imitation or counterfeit tax imprint, shall be deemed guilty of a Class 2 felony.

(Source: P.A. 83-1428.)

(35 ILCS 130/24) (from Ch. 120, par. 453.24)

Sec. 24. Punishment for sale or possession of unstamped packages.

(a) Any person licensed or required to be licensed as a retailer under this Act, other than a person licensed as a distributor or a transporter, as defined in Section 9c of this Act, who has in his possession, offers for sale, or sells 100 or fewer original packages of unstamped packages of cigarettes, shall be guilty of a Class A misdemeanor for a first offense and a Class 4 felony for each subsequent offense.

(b) Any person licensed or required to be licensed as a retailer under this Act, other than a person licensed as a distributor or a transporter, as defined in Section 9c of this Act, who has in his possession, offers for sale or sells more than 100 but fewer than 1001 original packages of unstamped packages of cigarettes, shall be guilty of a Class 4 felony.

(c) Any person licensed or required to be licensed as a retailer under this Act, other than a person licensed as a distributor or a transporter, as defined in Section 9c of this Act, who has in his possession, offers for sale or sells more than 1000 original packages of unstamped packages of cigarettes, shall be guilty of a Class 3 felony.

(d) If a retailer possesses more than 100 original packages of unstamped packages of cigarettes, the prima facie presumption shall arise that the retailer was offering the original packages of unstamped packages of cigarettes for sale. If more than more than 100 original packages of unstamped packages of cigarettes are found at a location, the prima facie presumption shall arise that the retailer is in possession of the original packages of unstamped packages of cigarettes.

(e) Any person licensed as a distributor or transporter, as defined in Section 9c of this Act, who sells an original package of an unstamped package of cigarettes, except when the sale is made under such circumstances that the tax imposed by this Act may not legally be levied because of the Constitution or laws of the United States, shall be guilty of a Class 3 felony.

(a) Any person other than a licensed distributor who sells, offers for sale, or has in his possession with intent to sell or offer for sale, more than 100 original packages, not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original package in accordance with this Act, shall be guilty of a Class 4 felony.

(a-5) Any person other than a licensed distributor who sells, offers for sale, or has in his possession with intent to sell or offer for sale, 100 or fewer original packages, not tax stamped or tax imprinted underneath the sealed transparent wrapper of the original package in accordance with this Act, is guilty of a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

(b) Any distributor who sells an original package of cigarettes, not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original package in accordance with this Act, except when the sale is made under such circumstances that the tax imposed by this Act may not legally be levied because of the Constitution or laws of the United States, shall be guilty of a Class 3 felony.

(Source: P.A. 92-322, eff. 1-1-02.)

(35 ILCS 130/26a new)

Sec. 26a. Operation without retail license. Any person who operates as a retailer of original packages of cigarettes as defined by this Act without having a license as required by this Act shall be guilty of a Class 4 felony.

(35 ILCS 130/18c rep.)

Section 915. The Cigarette Tax Act is amended by repealing Section 18c.

Section 920. The Cigarette Use Tax Act is amended by changing Sections 1, 3-10, 12, 25b, and 30 as follows:

(35 ILCS 135/1) (from Ch. 120, par. 453.31)

Sec. 1. For the purpose of this Act, unless otherwise required by the context:

"Use" means the exercise by any person of any right or power over cigarettes incident to the ownership or possession thereof, other than the making of a sale thereof in the course of engaging in a business of selling cigarettes and shall include the keeping or retention of cigarettes for use, except that "use" shall not include the use of cigarettes by a not-for-profit research institution conducting tests concerning the health effects of tobacco products, provided the cigarettes are not offered for resale.

"Cigarette" means any roll for smoking made wholly or in part of tobacco irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, and the wrapper or cover of which is made of paper or any other substance or material except tobacco.

"Person" means any natural individual, firm, partnership, association, joint stock company, joint adventure, public or private corporation, however formed, limited liability company, or a receiver, executor, administrator, trustee, guardian or other representative appointed by order of any court.

"Department" means the Department of Revenue.

"Sale" means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person.

"Original Package" means the individual packet, box or other container whatsoever used to contain and to convey cigarettes to the consumer upon which a tax stamp or other indicia of tax payment is or should be affixed.

"Distributor" means any and each of the following:

a. Any person engaged in the business of selling cigarettes in this State who brings or causes to be brought into this State from without this State any original packages of cigarettes, on which original packages there is no authorized evidence underneath a sealed transparent wrapper showing that the tax liability imposed by this Act has been paid or assumed by the out-of-State seller of such cigarettes, for sale in the course of such business.

b. Any person who makes, manufactures or fabricates cigarettes in this State for sale, except a person who makes, manufactures or fabricates cigarettes for sale to residents incarcerated in penal institutions or resident patients or a State-operated mental health facility.

c. Any person who makes, manufactures or fabricates cigarettes outside this State, which cigarettes are placed in original packages contained in sealed transparent wrappers, for delivery or shipment into this State, and who elects to qualify and is accepted by the Department as a distributor under Section 7 of this Act.

"Distributor" does not include any person with respect to a sale of cigarettes to a purchaser for use or consumption, and not for resale.

"Distributor" does not include any person who transfers cigarettes to a not-for-profit research institution that conducts tests concerning the health effects of tobacco products and who does not offer the cigarettes for resale.

"Distributor maintaining a place of business in this State", or any like term, means any distributor having or maintaining within this State, directly or by a subsidiary, an office, distribution house, sales house, warehouse or other place of business, or any agent operating within this State under the authority of the distributor or its subsidiary, irrespective of whether such place of business or agent is located here permanently or temporarily, or whether such distributor or subsidiary is licensed to transact business within this State.

"Business" means any trade, occupation, activity or enterprise engaged in or conducted in this State for the purpose of selling cigarettes.

"Prior Continuous Compliance Taxpayer" means any person who is licensed under this Act and who, having been a licensee for a continuous period of 5 years, is determined by the Department not to have been either delinquent or deficient in the payment of tax liability during that period or otherwise in violation of this Act. Also, any taxpayer who has, as verified by the Department, continuously complied with the condition of his bond or other security under provisions of this Act of a period of 5 consecutive years shall be considered to be a "prior continuous compliance taxpayer". In calculating the consecutive period of time described herein for qualification as a "prior continuous compliance taxpayer", a consecutive period of time of qualifying compliance immediately prior to the effective date of this amendatory Act of 1987 shall be credited to any licensee who became licensed on or before the effective date of this amendatory Act of 1987.

"Unstamped package of cigarettes" means a package of cigarettes that does not bear a tax stamp as required by this Act, including a package of cigarettes that bears a tax stamp of another state or taxing jurisdiction, a package of cigarettes that bears a counterfeit tax stamp, and a stamped or unstamped package of cigarettes that is marked "Not for sale in the United States".

(Source: P.A. 95-462, eff. 8-27-07.)

(35 ILCS 135/3-10)

Sec. 3-10. Cigarette enforcement.

(a) Prohibitions. It is unlawful for any person:

(1) to sell or distribute in this State; to acquire, hold, own, possess, or transport, for sale or distribution in this State; or to import, or cause to be imported into this State for sale or distribution in this State:

(A) any cigarettes the package of which:

(i) bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed, or used in the United States, including but not limited to labels stating "For Export Only", "U.S. Tax Exempt", "For Use Outside U.S.", or similar wording; or

(ii) does not comply with:

(aa) all requirements imposed by or pursuant to federal law regarding warnings and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States, including but not limited to the precise warning labels specified in the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; and

(bb) all federal trademark and copyright laws;

(B) any cigarettes imported into the United States in violation of 26 U.S.C. 5754 or any other federal law, or implementing federal regulations;

(C) any cigarettes that such person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed, or used in the United States; or

(D) any cigarettes for which there has not been submitted to the Secretary of the U.S. Department of Health and Human Services the list or lists of the ingredients added to tobacco in the manufacture of the cigarettes required by the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1335a;

(2) to alter the package of any cigarettes, prior to sale or distribution to the ultimate consumer, so as to remove, conceal, or obscure:

(A) any statement, label, stamp, sticker, or notice described in subdivision (a)(1)(A)(i) of this Section;

(B) any health warning that is not specified in, or does not conform with the requirements of, the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333; or

(3) to affix any stamp required pursuant to this Act to the package of any cigarettes described in subdivision (a)(1) of this Section or altered in violation of subdivision (a)(2).

(b) Documentation. On the first business day of each month, each person licensed to affix the State tax stamp to cigarettes shall file with the Department, for all cigarettes imported into the United States to which the person has affixed the tax stamp in the preceding month:

(1) a copy of:

(A) the permit issued pursuant to the Internal Revenue Code, 26 U.S.C. 5713, to the person importing the cigarettes into the United States allowing the person to import the cigarettes; and

(B) the customs form containing, with respect to the cigarettes, the internal revenue tax information required by the U.S. Bureau of Alcohol, Tobacco and Firearms;

(2) a statement, signed by the person under penalty of perjury, which shall be treated as confidential by the Department and exempt from disclosure under the Freedom of Information Act, identifying the brand and brand styles of all such cigarettes, the quantity of each brand style of such cigarettes, the supplier of such cigarettes, and the person or persons, if any, to whom such cigarettes have been conveyed for resale; and a separate statement, signed by the individual under penalty of perjury, which shall not be treated as confidential or exempt from disclosure, separately identifying the brands and brand styles of such cigarettes; and

(3) a statement, signed by an officer of the manufacturer or importer under penalty of perjury, certifying that the manufacturer or importer has complied with:

(A) the package health warning and ingredient reporting requirements of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333 and 1335a, with respect to such cigarettes; and

(B) the provisions of Exhibit T of the Master Settlement Agreement entered in the case of People of the State of Illinois v. Philip Morris, et al. (Circuit Court of Cook County, No. 96-L13146), including a statement indicating whether the manufacturer is, or is not, a participating tobacco manufacturer within the meaning of Exhibit T.

(c) Administrative sanctions.

(1) Upon finding that a distributor has committed any of the acts prohibited by subsection (a), knowing or having reason to know that he or she has done so, or has failed to comply with any requirement of subsection (b), the Department may revoke or suspend the license or licenses of any distributor pursuant to the procedures set forth in Section 6 and impose on the distributor a civil penalty in an amount not to exceed the greater of 500% of the retail value of the cigarettes involved or $5,000.

(2) Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this State in violation of this Section shall be deemed contraband under this Act and are subject to seizure and forfeiture as provided in this Act, and all such cigarettes seized and forfeited shall be destroyed. Such cigarettes shall be deemed contraband whether the violation of this Section is knowing or otherwise.

(d) Unfair trade practices. A violation of subsection (a) or subsection (b) of this Section shall constitute an unlawful practice as provided in the Consumer Fraud and Deceptive Business Practices Act.

(d-5) Criminal penalties. A person who violates subsection (a) or subsection (b) of this Section shall be guilty of a Class 4 felony.

(e) Unfair cigarette sales. For purposes of the Trademark Registration and Protection Act and the Counterfeit Trademark Act, cigarettes imported or reimported into the United States for sale or distribution under any trade name, trade dress, or trademark that is the same as, or is confusingly similar to, any trade name, trade dress, or trademark used for cigarettes manufactured in the United States for sale or distribution in the United States shall be presumed to have been purchased outside of the ordinary channels of trade.

(f) General provisions.

(1) This Section shall be enforced by the Department; provided that, at the request of the Director of Revenue or the Director's duly authorized agent, the State police and all local police authorities shall enforce the provisions of this Section. The Attorney General has concurrent power with the State's Attorney of any county to enforce this Section.

(2) For the purpose of enforcing this Section, the Director of Revenue and any agency to which the Director has delegated enforcement responsibility pursuant to subdivision (f)(1) may request information from any State or local agency and may share information with and request information from any federal agency and any agency of any other state or any local agency of any other state.

(3) In addition to any other remedy provided by law, including enforcement as provided in subdivision (a)(1), any person may bring an action for appropriate injunctive or other equitable relief for a violation of this Section; actual damages, if any, sustained by reason of the violation; and, as determined by the court, interest on the damages from the date of the complaint, taxable costs, and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of 3 times the actual damages sustained by reason of the violation.

(g) Definitions. As used in this Section:

"Importer" means that term as defined in 26 U.S.C. 5702(1).

"Package" means that term as defined in 15 U.S.C. 1332(4).

(h) Applicability.

(1) This Section does not apply to:

(A) cigarettes allowed to be imported or brought into the United States for personal use; and

(B) cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 U.S.C. 1555(b) and any implementing regulations; except that this Section shall apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.

(2) The penalties provided in this Section are in addition to any other penalties imposed under other provision of law.

(Source: P.A. 91-810, eff. 6-13-00.)

(35 ILCS 135/12) (from Ch. 120, par. 453.42)

Sec. 12. Declaration of possession of cigarettes on which tax not paid.

(a) When cigarettes are acquired for use in this State by a person (including a distributor as well as any other person), who did not pay the tax herein imposed to a distributor, the person, within 30 days after acquiring the cigarettes, shall file with the Department a return declaring the possession of the cigarettes and shall transmit with the return to the Department the tax imposed by this Act.

(b) On receipt of the return and payment of the tax as required by paragraph (a), the Department may furnish the person with a suitable tax stamp to be affixed to the package of cigarettes upon which the tax has been paid if the Department determines that the cigarettes still exist.

(c) The return referred to in paragraph (a) shall contain the name and address of the person possessing the cigarettes involved, the location of the cigarettes and the quantity, brand name, place, and date of the acquisition of the cigarettes.

(d) The provisions of the Uniform Penalty and Interest Act (35 ILCS 735/) do not apply to this Section.

(Source: P.A. 92-322, eff. 1-1-02.)

(35 ILCS 135/25b)

Sec. 25b. Possession of cigarette packages by persons not licensed as a distributor or a retailer; penalty. Any person other than a person licensed as a distributor or a retailer under the Cigarette Tax Act in possession of more than 10 but fewer than 101 original packages of unstamped packages of cigarettes and who has not paid the taxes imposed by this Act within 30 days of acquiring the cigarettes, shall be liable to pay to the Department for deposit into the Tax Compliance and Administration Fund, a penalty of $15 for possession of each package of cigarettes. Any person other than a person licensed as a distributor or a retailer under the Cigarette Tax Act in possession of more than 100 original packages of unstamped packages of cigarettes and who has not paid the taxes imposed by this Act within 30 days of acquiring the cigarettes, shall be liable to pay to the Department for deposit into the Tax Compliance and Administration Fund, a penalty of $25 for possession of each package of cigarettes. Any person who purchases and possesses a total of 10 or fewer original packages of unstamped cigarettes per month shall be exempt from the penalties of this Section. The provisions of the Uniform Penalty and Interest Act (35 ILCS 735/) do not apply to this Section. Possession of not less than 10 and not more than 100 original packages not tax stamped or improperly tax stamped; penalty. With the exception of licensed distributors, anyone possessing not less than 10 and not more than 100 packages of cigarettes contained in original packages that are not tax stamped as required by this Act, or that are improperly tax stamped, is liable to pay to the Department, for deposit into the Tax Compliance and Administration Fund, a penalty of $10 for each such package of cigarettes, unless reasonable cause can be established by the person upon whom the penalty is imposed. Reasonable cause shall be determined in each situation in accordance with rules adopted by the Department.

(Source: P.A. 92-322, eff. 1-1-02.)

(35 ILCS 135/30) (from Ch. 120, par. 453.60)

Sec. 30. Punishment for possession, offer for sale, or sale of unstamped packages of cigarettes, other than in a retail or resale business. Punishment for sale or possession of unstamped packages.

(a) Any person other than a person licensed as a distributor, a transporter as defined in Section 9c of the Cigarette Tax Act, or a retailer under the Cigarette Tax Act, who has in his possession, offers for sale or sells, fewer than 101 original packages of unstamped packages of cigarettes, shall be guilty of a Class A misdemeanor for a first offense and a Class 4 felony for each subsequent offense.

(b) Any person other than a person licensed as a distributor, a transporter as defined in Section 9c of the Cigarette Tax Act, or a retailer under the Cigarette Tax Act, who has in his possession, offers for sale or sells, more than 100 but fewer than 1001 original packages of unstamped packages of cigarettes, shall be guilty of a Class 4 felony.

(c) Any person other than a person licensed as a distributor, a transporter as defined in Section 9c of the Cigarette Tax Act, or a retailer under the Cigarette Tax Act, who has in his possession, offers for sale or sells, more than 1000 original packages of unstamped packages of cigarettes, shall be guilty of a Class 3 felony.

(d) Any person licensed as a distributor who sells an original package of an unstamped package of cigarettes, except when the sale is made under such circumstances that the tax imposed by this Act may not legally be levied because of the Constitution or laws of the United States, shall be guilty of a Class 3 felony. Any person other than a licensed distributor who sells, offers for sale, or has in his possession with intent to sell or offer for sale, more than 100 original packages, not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original package in accordance with this Act, shall be guilty of a Class 4 felony.

Any person other than a licensed distributor who sells, offers for sale, or has in his possession with intent to sell or offer for sale, 100 or fewer original packages, not tax stamped or tax imprinted underneath the sealed transparent wrapper of the original package in accordance with this Act, is guilty of a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

Any distributor who sells an original package of cigarettes, not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original package in accordance with this Act, except when the sale is made under such circumstances that the tax imposed by this Act may not legally be levied because of the Constitution or laws of the United States, shall be guilty of a Class 3 felony.

(Source: P.A. 92-322, eff. 1-1-02.)

(35 ILCS 135/25a rep.)

Section 925. The Cigarette Use Tax Act is amended by repealing Section 25a.

Section 930. The Tobacco Products Tax Act of 1995 is amended by changing Sections 10-5, 10-20, 10-25, 10-30, 10-35, and 10-50 and by adding Sections 10-21, 10-22, 10-36, and 10-53 as follows:

(35 ILCS 143/10-5)

Sec. 10-5. Definitions. For purposes of this Act:

"Business" means any trade, occupation, activity, or enterprise engaged in, at any location whatsoever, for the purpose of selling tobacco products.

"Cigarette" has the meaning ascribed to the term in Section 1 of the Cigarette Tax Act.

"Correctional Industries program" means a program run by a State penal institution in which residents of the penal institution produce tobacco products for sale to persons incarcerated in penal institutions or resident patients of a State operated mental health facility.

"Department" means the Illinois Department of Revenue.

"Distributor" means any of the following:

(1) Any manufacturer or wholesaler in this State engaged in the business of selling tobacco products who sells, exchanges, or distributes tobacco products to retailers or consumers in this State.

(2) Any manufacturer or wholesaler engaged in the business of selling tobacco products from without this State who sells, exchanges, distributes, ships, or transports tobacco products to retailers or consumers located in this State, who (i) so long as that manufacturer or wholesaler has or maintains within this State, directly or by subsidiary, an office, sales house, or other place of business, or any agent or other representative operating within this State under the authority of the person or subsidiary, irrespective of whether the place of business or agent or other representative is located here permanently or temporarily, or (ii) elects to apply for a distributor's license and is approved by the Department as a licensed distributor.

(3) Any retailer who receives tobacco products on which the tax has not been or will not be paid by another distributor.

"Distributor" does not include any person with respect to a sale of tobacco products to a purchaser for use or consumption, and not for resale.

"Distributor" does not include any person, wherever resident or located, who makes, manufactures, or fabricates tobacco products as part of a Correctional Industries program for sale to residents incarcerated in penal institutions or resident patients of a State operated mental health facility.

"Manufacturer" means any person, wherever resident or located, who manufactures and sells tobacco products, except a person who makes, manufactures, or fabricates tobacco products as a part of a Correctional Industries program for sale to persons incarcerated in penal institutions or resident patients of a State operated mental health facility.

"Person" means any natural individual, firm, partnership, association, joint stock company, joint venture, limited liability company, or public or private corporation, however formed, or a receiver, executor, administrator, trustee, conservator, or other representative appointed by order of any court.

"Place of business" means and includes any place where tobacco products are sold or where tobacco products are manufactured, stored, or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train, or vending machine.

"Retailer" means any person in this State engaged in the business of selling tobacco products to consumers in this State, regardless of quantity or number of sales.

"Sale" means any transfer, exchange, or barter in any manner or by any means whatsoever for a consideration and includes all sales made by persons.

"Tobacco products" means any cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings, and sweeping of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but does not include cigarettes or tobacco purchased for the manufacture of cigarettes by cigarette distributors and manufacturers defined in the Cigarette Tax Act and persons who make, manufacture, or fabricate cigarettes as a part of a Correctional Industries program for sale to residents incarcerated in penal institutions or resident patients of a State operated mental health facility.

"Wholesale price" means the established list price for which a manufacturer sells tobacco products to a distributor, before the allowance of any discount, trade allowance, rebate, or other reduction. In the absence of such an established list price, the manufacturer's invoice price at which the manufacturer sells the tobacco product to unaffiliated distributors, before any discounts, trade allowances, rebates, or other reductions, shall be presumed to be the wholesale price.

"Wholesaler" means any person, wherever resident or located, engaged in the business of selling tobacco products to others for the purpose of resale.

(Source: P.A. 92-231, eff. 8-2-01.)

(35 ILCS 143/10-20)

Sec. 10-20. Distributor's Licenses. It shall be unlawful for any person to engage in business as a distributor of tobacco products within the meaning of this Act without first having obtained a license to do so from the Department. Application for that license shall be made to the Department in a form prescribed and furnished by the Department. Each applicant for a license shall furnish to the Department on a form, signed and verified by the applicant, the following information:

(1) The name of the applicant.

(2) The address of the location at which the applicant proposes to engage in business as a distributor of tobacco products.

(3) Other information the Department may reasonably require.

Except as otherwise provided in this Section, every applicant who is required to procure a distributor's license shall file with his or her application a joint and several bond. The bond shall be executed to the Department of Revenue, with good and sufficient surety or sureties residing or licensed to do business within the State of Illinois, conditioned upon the true and faithful compliance by the licensee with all of the provisions of this Act. The Department shall fix the amount of the bond for each applicant, taking into consideration the amount of money expected to become due from the applicant under this Act. The amount of bond required by the Department shall be an amount that, in its opinion, will protect the State of Illinois against failure to pay the amount that may become due from the applicant under this Act, but the amount of the security required by the Department shall not exceed 3 times the amount of the applicant's average monthly tax liability, or $50,000, whichever amount is lower. The bond, a reissue, or a substitute shall be kept in full force and effect during the entire period covered by the license. A separate application for license shall be made, and bond filed, for each place of business at which a person who is required to procure a distributor's license proposes to engage in business as a distributor under this Act.

The Department, upon receipt of an application and bond in proper form, shall issue to the applicant a license, in a form prescribed by the Department, which shall permit the applicant to whom it is issued to engage in business as a distributor at the place shown on his or her application. The license shall be issued by the Department without charge or cost to the applicant. No license issued under this Act is transferable or assignable. The license shall be conspicuously displayed in the place of business conducted by the licensee under the license.

The bonding requirement in this Section does not apply to an applicant for a distributor's license who is already bonded under the Cigarette Tax Act or the Cigarette Use Tax Act. Licenses issued by the Department under this Act shall be valid for a period not to exceed one year after issuance unless sooner revoked, canceled, or suspended as provided in this Act.

No license shall be issued to any person who is in default to the State of Illinois for moneys due under this Act or any other tax Act administered by the Department.

The Department may, in its discretion, upon application, authorize the payment of the tax imposed under Section 10-10 by any distributor or manufacturer not otherwise subject to the tax imposed under this Act who, to the satisfaction of the Department, furnishes adequate security to ensure payment of the tax. The distributor or manufacturer shall be issued, without charge, a license to remit the tax. When so authorized, it shall be the duty of the distributor or manufacturer to remit the tax imposed upon the wholesale price of tobacco products sold or otherwise disposed of to retailers or consumers located in this State, in the same manner and subject to the same requirements as any other distributor or manufacturer licensed under this Act.

The Department may revoke, suspend, or cancel the license of a distributor of roll-your-own tobacco (as that term is used in Section 10 of the Tobacco Product Manufacturers' Escrow Act) under this Act if the tobacco product manufacturer, as defined in Section 10 of the Tobacco Product Manufacturers' Escrow Act, that made or sold the roll-your-own tobacco has failed to become a participating manufacturer, as defined in subdivision (a)(1) of Section 15 of the Tobacco Product Manufacturers' Escrow Act, or has failed to create a qualified escrow fund for any roll-your-own tobacco manufactured by the tobacco product manufacturer and sold in this State or otherwise failed to bring itself into compliance with subdivision (a)(2) of Section 15 of the Tobacco Product Manufacturers' Escrow Act.

Any person aggrieved by any decision of the Department under this Section may, within 20 days after notice of that decision, protest and request a hearing, whereupon the Department must give notice to that person of the time and place fixed for the hearing and must hold a hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to that person. In the absence of such a protest within 20 days, the Department's decision becomes final without any further determination being made or notice given.

(Source: P.A. 92-231, eff. 8-2-01; 92-737, eff. 7-25-02.)

(35 ILCS 143/10-21 new)

Sec. 10-21. Retailer's License.

(a) Commencing January 1, 2010, no person may engage in business as a retailer of tobacco products in this State without first having obtained a retailer's license from the Department. Application for a license shall be made to the Department in form as furnished and prescribed by the Department. Each applicant for a license under this Section shall furnish to the Department on the form signed and verified by the applicant the following information:

(1) the name and address of the applicant;

(2) the address of the location at which the applicant proposes to engage in business as a retailer of tobacco products in this State; and

(3) such other additional information as the Department may lawfully require by its rules and regulations.

(b) The annual license fee payable to the Department for each retailer's license shall be $250. The fee will be placed into the Tax Compliance and Administration Fund and used towards the cost of retail inspections. Each applicant for a license shall pay that fee to the Department at the time of submitting the application for a license to the Department.

(c) The Department may, in its discretion, require an applicant who is required to procure a retailer's license to file with the application a joint and several bond. If required, such bond shall be executed to the Department of Revenue, with good and sufficient surety or sureties residing or licensed to do business within the State of Illinois, in an amount of not less than $2,500, conditioned upon the true and faithful compliance by the licensee with all of the provisions of this Act. If required, such bond, or a reissue thereof, or a substitute therefor, shall be kept in effect during the entire period covered by the license. A separate application for license shall be made, a separate annual license fee paid, and, if required, a separate bond filed, for each place of business at which a person who is required to procure a retailer's license under this Section proposes to engage in business as a retailer in Illinois under this Act.

The following are ineligible to receive a retailer's license under this Act:

(1) a person who is not of good character and reputation in the community in which he resides;

(2) a person who has been convicted of a felony under any federal or State law, if the Department, after investigation and a hearing, if requested by the applicant, determines that the person has not been sufficiently rehabilitated to warrant the public trust;

(3) a corporation, if any officer, manager, or director thereof, or any stockholder or stockholders owning in the aggregate more than 5% of the stock of the corporation, would not be eligible to receive a license under this Act for any reason;

(4) a person who possesses a distributor's license under Section 10-20 of this Act.

(d) The Department, upon receipt of an application, license fee, and bond in proper form from a person who is eligible to receive a retailer's license under this Act, shall issue to the applicant a license in form as prescribed by the Department, which license shall permit the applicant to engage in business as a retailer under this Act at the place shown in the application. All licenses issued by the Department under this Section shall be valid for not to exceed one year after issuance unless sooner revoked, canceled or suspended as provided in this Act. No license issued under this Section is transferable or assignable. The license shall be conspicuously displayed in the place of business conducted by the licensee in Illinois under the license. The Department shall not issue a license to a retailer unless the retailer is also validly registered under the Retailers' Occupation Tax Act. A person who obtains a license as a retailer and then ceases to do business as specified in the license, or who does not commence business, or who obtains a distributor's license, or whose license is suspended or revoked, shall immediately surrender the license to the Department. A retailer as defined under the Cigarette Tax Act need not obtain an additional license under this Act, but shall be deemed to be sufficiently licensed by virtue of his being properly licensed as a retailer under Section 4d of the Cigarette Tax Act.

(e) Any person aggrieved by any decision of the Department under this subsection may, within 20 days after notice of the decision, protest and request a hearing. Upon receiving a request for a hearing, the Department shall give notice to the person requesting the hearing of the time and place fixed for the hearing and shall hold a hearing in conformity with the provisions of this Act and then issue its final administrative decision in the matter to that person. In the absence of a protest and request for a hearing within 20 days, the Department's decision shall become final without any further determination being made or notice given.

(35 ILCS 143/10-22 new)

Sec. 10-22. Purchases of tobacco products by licensed retailers. A person who possesses a retailer's license under Section 10-21 of this Act shall obtain tobacco products for sale only from a licensed distributor.

(35 ILCS 143/10-25)

Sec. 10-25. License actions.

(a) The Department may, after notice and a hearing, revoke, cancel, or suspend the license of any distributor or retailer who violates any of the provisions of this Act. The notice shall specify the alleged violation or violations upon which the revocation, cancellation, or suspension proceeding is based.

(b) The Department may revoke, cancel, or suspend the license of any distributor for a violation of the Tobacco Product Manufacturers' Escrow Enforcement Act as provided in Section 20 of that Act.

(c) The Department shall suspend for 7 days the license of a retailer for a first violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

The Department shall suspend for 30 days the license of a retailer for a second violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

The Department shall revoke the license of a retailer for a third or subsequent violation of the Sale of Tobacco to Minors Act, as provided in Section 3 of that Act.

(d) The Department may, by application to any circuit court, obtain an injunction restraining any person who engages in business as a distributor of tobacco products without a license (either because his or her license has been revoked, canceled, or suspended or because of a failure to obtain a license in the first instance) from engaging in that business until that person, as if that person were a new applicant for a license, complies with all of the conditions, restrictions, and requirements of Section 10-20 (for a distributor's license) or Section 10-21 (for a retailer's license) of this Act and qualifies for and obtains a license. Refusal or neglect to obey the order of the court may result in punishment for contempt.

(Source: P.A. 92-737, eff. 7-25-02.)

(35 ILCS 143/10-30)

Sec. 10-30. Returns. (a) Every distributor shall, on or before the 15th day of each month, file a return with the Department covering the preceding calendar month. The return shall disclose the wholesale price for tobacco products sold or otherwise disposed of and other information that the Department may reasonably require. The return shall be filed upon a form prescribed and furnished by the Department.

At the time when any return of any distributor is due to be filed with the Department, the distributor shall also remit to the Department the tax liability that the distributor has incurred for transactions occurring in the preceding calendar month.

(b) A retailer who possesses, acquires, or purchases tobacco products on which the tax imposed by this Act has not been paid shall file a return and pay the tax in a format and at a time prescribed by the Department by rule.

(Source: P.A. 89-21, eff. 6-6-95.)

(35 ILCS 143/10-35)

Sec. 10-35. Record keeping.

(a) Every distributor, as defined in Section 10-5, shall keep complete and accurate records of tobacco products held, purchased, manufactured, brought in or caused to be brought in from without the State, and tobacco products sold, or otherwise disposed of, and shall preserve and keep all invoices, bills of lading, sales records, and copies of bills of sale, the wholesale price for tobacco products sold or otherwise disposed of, an inventory of tobacco products prepared as of December 31 of each year or as of the last day of the distributor's fiscal year if he or she files federal income tax returns on the basis of a fiscal year, and other pertinent papers and documents relating to the manufacture, purchase, sale, or disposition of tobacco products. Every sales invoice issued by a licensed distributor to a retailer in this State shall contain the distributor's Tobacco Products License number.

(b) Every retailer, as defined in Section 10-5, shall keep within Illinois, at his or her licensed address, complete and accurate records of tobacco products held, purchased, sold, or otherwise disposed of, and shall preserve and keep all invoices, bills of lading, sales records, copies of bills of sale, returns, and other pertinent papers and documents relating to the purchase, sale, or disposition of tobacco products.

(c) Books, records, papers, and documents that are required by this Act to be kept shall, at all times during the usual business hours of the day, be subject to inspection by the Department or its duly authorized agents and employees. The books, records, papers, and documents for any period with respect to which the Department is authorized to issue a notice of tax liability shall be preserved until the expiration of that period.

(Source: P.A. 89-21, eff. 6-6-95.)

(35 ILCS 143/10-36 new)

Sec. 10-36. Proof of payment of tax imposed by this Act. Every licensed distributor of tobacco products in this State is required to show proof of the tax having been paid as required by this Act by displaying his or her Tobacco Products License number on every sales invoice issued to a retailer in this State. No retailer shall possess tobacco products without either (i) a proper invoice indicating that the tobacco products tax was paid by a distributor for the tobacco products in the retailer's possession or (ii) proof that the tax was paid by the retailer if it has purchased tobacco products on which tax has not been paid as required by this Act. Failure to comply with the provisions of this Section may be grounds for revocation of a distributor's or retailer's license in accordance with Section 10-25 of this Act or Section 6 of the Cigarette Tax Act. In addition, the Department may impose a civil penalty not to exceed $1000 for each violation, which shall be deposited into the Tax Compliance and Administration Fund.

(35 ILCS 143/10-50)

Sec. 10-50. Violations and penalties.

(a) When the amount due is under $300, any distributor who fails to file a return, willfully wilfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or files a fraudulent return, or any officer or agent of a corporation engaged in the business of distributing tobacco products to retailers and consumers located in this State who signs a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 4 felony.

(b) Any person who violates any provision of Section 10-20, 10-21, or 10-22 of this Act, fails to keep books and records as required under this Act, or willfully wilfully violates a rule or regulation of the Department for the administration and enforcement of this Act is guilty of a Class 4 felony. A person commits a separate offense on each day that he or she engages in business in violation of Section 10-20, 10-21 or 10-22 of this Act.

(c) When the amount due is under $300, any person who accepts money that is due to the Department under this Act from a taxpayer for the purpose of acting as the taxpayer's agent to make the payment to the Department, but who fails to remit the payment to the Department when due, is guilty of a Class 4 felony.

(d) When the amount due is $300 or more, any distributor who files, or causes to be filed, a fraudulent return, or any officer or agent of a corporation engaged in the business of distributing tobacco products to retailers and consumers located in this State who files or causes to be filed or signs or causes to be signed a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 3 felony.

(e) When the amount due is $300 or more, any person engaged in the business of distributing tobacco products to retailers and consumers located in this State who fails to file a return, willfully wilfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or accepts money that is due to the Department under this Act from a taxpayer for the purpose of acting as the taxpayer's agent to make payment to the Department but fails to remit such payment to the Department when due is guilty of a Class 3 felony.

(f) When the amount due is under $300, any retailer who fails to file a return, willfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or files a fraudulent return, or any officer or agent of a corporation engaged in the retail business of selling tobacco products to purchasers of tobacco products for use and consumption located in this State who signs a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 4 felony.

(g) When the amount due is $300 or more, any retailer who fails to file a return, willfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or files a fraudulent return, or any officer or agent of a corporation engaged in the retail business of selling tobacco products to purchasers of tobacco products for use and consumption located in this State who signs a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 3 felony.

(h) Any person whose principal place of business is in this State and who is charged with a violation under this Section shall be tried in the county where his or her principal place of business is located unless he or she asserts a right to be tried in another venue. If the taxpayer does not have his or her principal place of business in this State, however, the hearing must be held in Sangamon County unless the taxpayer asserts a right to be tried in another venue.

(i) Any taxpayer or agent of a taxpayer who with the intent to defraud purports to make a payment due to the Department by issuing or delivering a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository, is guilty of a deceptive practice in violation of Section 17-1 of the Criminal Code of 1961.

(j) A prosecution for a violation described in this Section may be commenced within 3 years after the commission of the act constituting the violation.

(Source: P.A. 92-231, eff. 8-2-01.)

(35 ILCS 143/10-53 new)

Sec. 10-53. Acting as a retailer of tobacco products without a license. Any person who knowingly acts as a retailer of tobacco products in this State without first having obtained a license to do so in compliance with Section 10-21 of this Act or a license in compliance with Section 4d of the Cigarette Tax Act shall be guilty of a Class 4 felony.

Section 940. The Sale of Tobacco to Minors Act is amended by adding Section 3 as follows:

(720 ILCS 675/3 new)

Sec. 3. Additional penalties for retailers. In addition to the penalties provided in Section 2 of this Act, if a person who is a licensed retailer under the Cigarette Tax Act or the Tobacco Products Tax Act of 1995 commits a violation of this Act, that person's retailer's license shall be:

(1) suspended for 7 days for a first violation of this Act;

(2) suspended for 30 days for a second violation of this Act; and

(3) revoked for a third or subsequent violation of this Act. ".