Rep. Barbara Flynn Currie
Filed: 5/3/2016
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1 | AMENDMENT TO SENATE BILL 2924
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2 | AMENDMENT NO. ______. Amend Senate Bill 2924 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Retailers' Occupation Tax Act is amended by | ||||||
5 | changing Section 6 as follows:
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6 | (35 ILCS 120/6) (from Ch. 120, par. 445)
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7 | Sec. 6. Credit memorandum or refund. If it appears, after | ||||||
8 | claim therefor
filed with the
the Department, that
an amount of | ||||||
9 | tax or penalty or interest has been paid which was not due | ||||||
10 | under
this Act, whether as the result of a mistake of fact or | ||||||
11 | an error of law,
except as hereinafter provided, then the | ||||||
12 | Department shall issue a credit
memorandum or refund to the | ||||||
13 | person who made the erroneous payment or, if
that person died | ||||||
14 | or became a person under legal disability, to his or her
legal | ||||||
15 | representative, as such.
For purposes of this Section, the tax | ||||||
16 | is deemed to be erroneously paid by
a retailer when the |
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1 | manufacturer of a motor vehicle sold by the retailer
accepts
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2 | the return of that automobile and refunds to the purchaser the | ||||||
3 | selling price of
that vehicle as provided in the New Vehicle | ||||||
4 | Buyer Protection Act. When a
motor vehicle is returned for a | ||||||
5 | refund of the purchase price under the New
Vehicle Buyer | ||||||
6 | Protection Act, the Department shall issue a credit memorandum
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7 | or a refund for the amount of tax paid by the retailer under | ||||||
8 | this Act
attributable to the initial sale of that vehicle. | ||||||
9 | Claims submitted by the
retailer are subject to the same | ||||||
10 | restrictions and procedures provided for in
this Act.
If it is | ||||||
11 | determined that the Department
should issue a credit memorandum | ||||||
12 | or refund, the Department may first apply
the amount thereof | ||||||
13 | against any tax or penalty or interest due or to become
due | ||||||
14 | under this Act or under the Use Tax Act, the Service Occupation | ||||||
15 | Tax
Act, the Service Use Tax Act,
any local occupation or use | ||||||
16 | tax administered by the Department,
Section 4 of the Water | ||||||
17 | Commission Act of
1985, subsections (b), (c) and (d) of Section | ||||||
18 | 5.01 of the Local Mass
Transit District Act, or subsections | ||||||
19 | (e), (f) and (g) of Section 4.03 of
the Regional Transportation | ||||||
20 | Authority Act, from the person who made the
erroneous payment. | ||||||
21 | If no tax or penalty or interest is due and no
proceeding is | ||||||
22 | pending to determine whether such person is indebted to the
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23 | Department for tax or penalty or interest, the credit | ||||||
24 | memorandum or refund
shall be issued to the claimant; or (in | ||||||
25 | the case of a credit memorandum)
the credit memorandum may be | ||||||
26 | assigned and set over by the lawful holder
thereof, subject to |
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1 | reasonable rules of the Department, to any other person
who is | ||||||
2 | subject to this Act, the Use Tax Act, the Service Occupation | ||||||
3 | Tax Act,
the Service Use Tax Act,
any local occupation or use | ||||||
4 | tax administered by the Department,
Section 4 of the Water | ||||||
5 | Commission Act of
1985, subsections (b), (c) and (d) of Section | ||||||
6 | 5.01 of the Local Mass
Transit District Act, or subsections | ||||||
7 | (e), (f) and (g) of Section 4.03 of
the Regional Transportation | ||||||
8 | Authority Act,
and the amount thereof applied by the Department | ||||||
9 | against any tax or
penalty or interest due or to become due | ||||||
10 | under this Act or under the Use
Tax Act, the Service Occupation | ||||||
11 | Tax Act, the Service
Use Tax Act,
any local occupation or use | ||||||
12 | tax administered by the Department,
Section 4 of the Water | ||||||
13 | Commission Act of
1985, subsections (b), (c) and (d) of Section | ||||||
14 | 5.01 of the Local Mass
Transit District Act, or subsections | ||||||
15 | (e), (f) and (g) of Section 4.03 of
the Regional Transportation | ||||||
16 | Authority Act, from such assignee. However, as
to any claim for | ||||||
17 | credit or refund filed with the Department on and after
each | ||||||
18 | January 1 and July 1 no amount of tax or penalty or interest
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19 | erroneously paid (either in total or partial liquidation of a | ||||||
20 | tax or
penalty or amount of interest under this Act) more than | ||||||
21 | 3 years prior to
such January 1 and July 1, respectively, shall | ||||||
22 | be credited or refunded,
except that if both the Department and | ||||||
23 | the taxpayer have agreed to an
extension of time to issue a | ||||||
24 | notice of tax liability as
provided in Section 4 of this Act, | ||||||
25 | such claim may be filed at any time
prior to the expiration of | ||||||
26 | the period agreed upon. |
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1 | No claim may be allowed for any amount paid to the | ||||||
2 | Department, whether
paid voluntarily or involuntarily, if paid | ||||||
3 | in total or partial liquidation
of an assessment which had | ||||||
4 | become final before the claim for credit or
refund to recover | ||||||
5 | the amount so paid is filed with the Department, or if
paid in | ||||||
6 | total or partial liquidation of a judgment or order of
court. | ||||||
7 | No credit may be allowed or refund made for any amount paid by | ||||||
8 | or
collected from any claimant unless it appears (a) that the | ||||||
9 | claimant bore
the burden of such amount and has not been | ||||||
10 | relieved thereof nor reimbursed
therefor and has not shifted | ||||||
11 | such burden directly or indirectly through
inclusion of such | ||||||
12 | amount in the price of the tangible personal property
sold by | ||||||
13 | him or her or in any manner whatsoever; and that no | ||||||
14 | understanding or
agreement, written or oral, exists whereby he | ||||||
15 | or she or his or her
legal representative may be relieved of | ||||||
16 | the burden of such amount, be
reimbursed therefor or may shift | ||||||
17 | the burden thereof; or (b) that he or she
or his or her legal | ||||||
18 | representative has repaid unconditionally such amount
to his or | ||||||
19 | her vendee (1) who bore the burden thereof and has not shifted
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20 | such burden directly or indirectly, in any manner whatsoever; | ||||||
21 | (2) who, if
he or she has shifted such burden, has repaid | ||||||
22 | unconditionally such amount
to his own vendee; and (3) who is | ||||||
23 | not entitled to receive any reimbursement
therefor from any | ||||||
24 | other source than from his or her vendor, nor to be
relieved of | ||||||
25 | such burden in any manner whatsoever. No credit may be allowed
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26 | or refund made for any amount paid by or collected from any |
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1 | claimant unless
it appears that the claimant has | ||||||
2 | unconditionally repaid, to the purchaser,
any amount collected | ||||||
3 | from the purchaser and retained by the claimant with
respect to | ||||||
4 | the same transaction under the Use Tax Act.
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5 | Any credit or refund that is allowed under this Section | ||||||
6 | shall bear interest
at the rate and in the manner specified in | ||||||
7 | the Uniform Penalty and Interest
Act.
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8 | In case the Department determines that the claimant is | ||||||
9 | entitled to a
refund, such refund shall be made only from such | ||||||
10 | appropriation as may be
available for that purpose. If it | ||||||
11 | appears unlikely that the amount
appropriated would permit | ||||||
12 | everyone having a claim allowed during the period
covered by | ||||||
13 | such appropriation to elect to receive a cash refund, the
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14 | Department, by rule or regulation, shall provide for the | ||||||
15 | payment of refunds in
hardship cases and shall define what | ||||||
16 | types of cases qualify as hardship cases.
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17 | If a retailer who has failed to pay retailers' occupation | ||||||
18 | tax on gross
receipts from retail sales is required by the | ||||||
19 | Department to pay such tax,
such retailer, without filing any | ||||||
20 | formal claim with the Department, shall
be allowed to take | ||||||
21 | credit against such retailers' occupation tax liability
to the | ||||||
22 | extent, if any, to which such retailer has paid an amount | ||||||
23 | equivalent
to retailers' occupation tax or has paid use tax in | ||||||
24 | error to his or her vendor
or vendors of the same tangible | ||||||
25 | personal property which such retailer bought
for resale and did | ||||||
26 | not first use before selling it, and no penalty or
interest |
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1 | shall be charged to such retailer on the amount of such credit.
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2 | However, when such credit is allowed to the retailer by the | ||||||
3 | Department, the
vendor is precluded from refunding any of that | ||||||
4 | tax to the retailer and
filing a claim for credit or refund | ||||||
5 | with respect thereto with the
Department. The provisions of | ||||||
6 | this amendatory Act shall be applied
retroactively, regardless | ||||||
7 | of the date of the transaction.
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8 | (Source: P.A. 91-901, eff. 1-1-01.)".
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