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91_HB2150
LRB9104699PTpk
1 AN ACT concerning taxes, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Taxpayers' Bill of Rights Act is amended
5 by changing Section 5 and adding Sections 5.5 and 5.6 as
6 follows:
7 (20 ILCS 2520/5) (from Ch. 120, par. 2305)
8 Sec. 5. Taxpayer's suits. Taxpayers have the right to
9 sue the Department of Revenue if the such Department
10 negligently intentionally or recklessly disregards tax laws
11 or regulations in collecting taxes. The maximum recovery for
12 damages in such a suit shall be $100,000. If a taxpayer's
13 suit is determined by the court to be frivolous the court may
14 impose a penalty on the taxpayer not to exceed $10,000 to be
15 collected as a tax.
16 (Source: P.A. 86-176; 86-189.)
17 (20 ILCS 2520/5.5 new)
18 Sec. 5.5. Burden of proof.
19 (a) Notwithstanding any other law to the contrary, in the
20 case of a taxpayer receiving a protestable notice, a bill, a
21 claim denial, or a reduction of refund regarding any tax,
22 until proven otherwise by the Department in the appropriate
23 proceeding, the taxpayer's position shall be presumed to be
24 the correct one and the burden of proof shall be on the
25 Department to prove otherwise.
26 (b) The provisions of subsection (a) apply only if (i)
27 the taxpayer asserts a reasonable dispute with respect to the
28 issue and (ii) the taxpayer has fully cooperated with the
29 Department with respect to the issue, including providing,
30 within a reasonable period of time, access to and inspection
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1 of all witnesses, information, and documents within the
2 control of the taxpayer, as reasonably requested by the
3 Department.
4 (c) The Department shall adopt rules to implement the
5 provisions of this Section.
6 (20 ILCS 2520/5.6 new)
7 Sec. 5.6. Privileged communications; accountant and
8 client. In any non-criminal proceeding before the
9 Department, the taxpayer shall be entitled to the same common
10 law protections of confidentiality with respect to tax advice
11 furnished by a certified public accountant or a public
12 accountant licensed under the Illinois Public Accounting Act
13 as the taxpayer would have if the accountant were an
14 attorney.
15 Section 10. The Illinois Income Tax Act is amended by
16 changing Sections 902, 904, and 917 and adding Section 917.5
17 as follows:
18 (35 ILCS 5/902) (from Ch. 120, par. 9-902)
19 Sec. 902. Notice and Demand. (a) In general. Except as
20 provided in subsection (b) the Director shall, as soon as
21 practicable after an amount payable under this Act is deemed
22 assessed (as provided in Section 903), give notice to each
23 person liable for any unpaid portion of such assessment,
24 stating the amount unpaid and demanding payment thereof. In
25 the case of tax deemed assessed with the filing of a return,
26 the Director shall give notice no later than 3 years after
27 the date the return was filed. Upon receipt of any notice
28 and demand there shall be paid at the place and time stated
29 in such notice the amount stated in such notice. Such notice
30 shall be left at the dwelling or usual place of business of
31 such person or shall be sent by mail to the person's last
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1 known address.
2 (b) Judicial review. In the case of a deficiency deemed
3 assessed under Section 903 (a) (2) after the filing of a
4 protest, notice and demand shall not be made with respect to
5 such assessment until all proceedings in court for the review
6 of such assessment have terminated or the time for the taking
7 thereof has expired without such proceedings being
8 instituted.
9 (c) Action for recovery of taxes. At any time that the
10 Department might commence proceedings for a levy under
11 Section 1109, regardless of whether a notice of lien was
12 filed under the provisions of Section 1103, it may bring an
13 action in any court of competent jurisdiction within or
14 without this State in the name of the people of this State to
15 recover the amount of any taxes, penalties and interest due
16 and unpaid under this Act. In such action, the certificate of
17 the Department showing the amount of the delinquency shall be
18 prima facie evidence of the correctness of such amount, its
19 assessment and of the compliance by the Department with all
20 the provisions of this Act.
21 (d) Sales or transfers outside the usual course of
22 business-Report-Payment of Tax - Rights and duties of
23 purchaser or transferee - penalty. If any taxpayer, outside
24 the usual course of his business, sells or transfers the
25 major part of any one or more of (A) the stock of goods which
26 he is engaged in the business of selling, or (B) the
27 furniture or fixtures, or (C) the machinery and equipment, or
28 (D) the real property, of any business that is subject to the
29 provisions of this Act, the purchaser or transferee of such
30 assets shall, no later than 10 days after the sale or
31 transfer, file a notice of sale or transfer of business
32 assets with the Chicago office of the Department disclosing
33 the name and address of the seller or transferor, the name
34 and address of the purchaser or transferee, the date of the
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1 sale or transfer, a copy of the sales contract and financing
2 agreements which shall include a description of the property
3 sold or transferred, the amount of the purchase price or a
4 statement of other consideration for the sale or transfer,
5 and the terms for payment of the purchase price, and such
6 other information as the Department may reasonably require.
7 If the purchaser or transferee fails to file the above
8 described notice of sale with the Department within the
9 prescribed time, the purchaser or transferee shall be
10 personally liable to the Department for the amount owed
11 hereunder by the seller or transferor but unpaid, up to the
12 amount of the reasonable value of the property acquired by
13 the purchaser or transferee. The purchaser or transferee
14 shall pay the Department the amount of tax, penalties, and
15 interest owed by the seller or transferor under this Act, to
16 the extent they have not been paid by the seller or
17 transferor. The seller or transferor, or the purchaser or
18 transferee, at least 10 days before the date of the sale or
19 transfer, may notify the Department of the intended sale or
20 transfer and request the Department to make a determination
21 as to whether the seller or transferor owes any tax, penalty
22 or interest due under this Act. The Department shall take
23 such steps as may be appropriate to comply with such request.
24 Any order issued by the Department pursuant to this
25 Section to withhold from the purchase price shall be issued
26 within 10 days after the Department receives notification of
27 a sale as provided in this Section. The purchaser or
28 transferee shall withhold such portion of the purchase price
29 as may be directed by the Department, but not to exceed a
30 minimum amount varying by type of business, as determined by
31 the Department pursuant to regulations, plus twice the
32 outstanding unpaid liabilities and twice the average
33 liability of preceding filings times the number of unfiled
34 returns which were not filed when due, to cover the amount of
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1 all tax, penalty, and interest due and unpaid by the seller
2 or transferor under this Act or, if the payment of money or
3 property is not involved, shall withhold the performance of
4 the condition that constitutes the consideration for the sale
5 or transfer. Within 60 days after issuance of the initial
6 order to withhold, the Department shall provide written
7 notice to the purchaser or transferee of the actual amount of
8 all taxes, penalties and interest then due and whether or not
9 additional amounts may become due as a result of unpaid taxes
10 required to be withheld by an employer, returns which were
11 not filed when due, pending assessments and audits not
12 completed. The purchaser or transferee shall continue to
13 withhold the amount directed to be withheld by the initial
14 order or such lesser amount as is specified by the final
15 withholding order or to withhold the performance of the
16 condition which constitutes the consideration for the sale or
17 transfer until the purchaser or transferee receives from the
18 Department a certificate showing that no unpaid tax, penalty
19 or interest is due from the seller or transferor under this
20 Act.
21 The purchaser or transferee is relieved of any duty to
22 continue to withhold from the purchase price and of any
23 liability for tax, penalty, or interest due hereunder from
24 the seller or transferor if the Department fails to notify
25 the purchaser or transferee in the manner provided herein of
26 the amount to be withheld within 10 days after the sale or
27 transfer has been reported to the Department or within 60
28 days after issuance of the initial order to withhold, as the
29 case may be. The Department shall have the right to determine
30 amounts claimed on an estimated basis to allow for periods
31 for which returns were not filed when due, pending
32 assessments and audits not completed, however the purchaser
33 or transferee shall be personally liable only for the actual
34 amount due when determined.
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1 If the seller or transferor has failed to pay the tax,
2 penalty, and interest due from him hereunder and the
3 Department makes timely claim therefor against the purchaser
4 or transferee as hereinabove provided, then the purchaser or
5 transferee shall pay to the Department the amount so withheld
6 from the purchase price. If the purchaser or transferee
7 fails to comply with the requirements of this Section, the
8 purchaser or transferee shall be personally liable to the
9 Department for the amount owed hereunder by the seller or
10 transferor up to the amount of the reasonable value of the
11 property acquired by the purchaser or transferee.
12 Any person who shall acquire any property or rights
13 thereto which, at the time of such acquisition, is subject to
14 a valid lien in favor of the Department, shall be personally
15 liable to the Department for a sum equal to the amount of
16 taxes, penalties and interests, secured by such lien, but not
17 to exceed the reasonable value of such property acquired by
18 him.
19 (Source: P.A. 86-923; 86-953.)
20 (35 ILCS 5/904) (from Ch. 120, par. 9-904)
21 Sec. 904. Deficiencies and Overpayments.
22 (a) Examination of return. As soon as practicable after
23 a return is filed, the Department shall examine it to
24 determine the correct amount of tax. If the Department finds
25 that the amount of tax shown on the return is less than the
26 correct amount, it shall issue a notice of deficiency to the
27 taxpayer which shall set forth the amount of tax and
28 penalties proposed to be assessed. If the Department finds
29 that the tax paid is more than the correct amount, it shall
30 credit or refund the overpayment as provided by Section 909.
31 The findings of the Department under this subsection shall be
32 prima facie correct and shall be prima facie evidence of the
33 correctness of the amount of tax and penalties due.
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1 (b) No return filed. If the taxpayer fails to file a
2 tax return, the Department shall determine the amount of tax
3 due according to its best judgment and information, which
4 amount so fixed by the Department shall be prima facie
5 correct and shall be prima facie evidence of the correctness
6 of the amount of tax due. The Department shall issue a notice
7 of deficiency to the taxpayer which shall set forth the
8 amount of tax and penalties proposed to be assessed.
9 (c) Notice of deficiency. A notice of deficiency issued
10 under this Act shall set forth the adjustments giving rise to
11 the proposed assessment and the reasons therefor. In the case
12 of a joint return, the notice of deficiency may be a single
13 joint notice except that if the Department is notified by
14 either spouse that separate residences have been established,
15 it shall issue joint notices to each spouse.
16 (d) Assessment when no protest. Upon the expiration of
17 60 days after the date on which it was issued (150 days if
18 the taxpayer is outside the United States), a notice of
19 deficiency shall constitute an assessment of the amount of
20 tax and penalties specified therein, except only for such
21 amounts as to which the taxpayer shall have filed a protest
22 with the Department, as provided in Section 908.
23 (Source: P.A. 87-192; 87-205.)
24 (35 ILCS 5/917) (from Ch. 120, par. 9-917)
25 Sec. 917. Confidentiality and information sharing.
26 (a) Confidentiality. Except as provided in this Section,
27 all information received by the Department from returns filed
28 under this Act, or from any investigation conducted under the
29 provisions of this Act, shall be confidential, except for
30 official purposes within the Department or pursuant to
31 official procedures for collection of any State tax or
32 pursuant to an investigation or audit by the Illinois State
33 Scholarship Commission of a delinquent student loan or
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1 monetary award or enforcement of any civil or criminal
2 penalty or sanction imposed by this Act or by another statute
3 imposing a State tax, and any person who divulges any such
4 information in any manner, except for such purposes and
5 pursuant to order of the Director or in accordance with a
6 proper judicial order, shall be guilty of a Class A
7 misdemeanor. However, the provisions of this paragraph are
8 not applicable to information furnished to a licensed
9 attorney representing the taxpayer where an appeal or a
10 protest has been filed on behalf of the taxpayer. In
11 addition, the provisions of this paragraph are not applicable
12 in a non-criminal proceeding before the Department to
13 information furnished to a certified public accountant or a
14 public accountant licensed to practice in this State under
15 the Illinois Public Accounting Act.
16 (b) Public information. Nothing contained in this Act
17 shall prevent the Director from publishing or making
18 available to the public the names and addresses of persons
19 filing returns under this Act, or from publishing or making
20 available reasonable statistics concerning the operation of
21 the tax wherein the contents of returns are grouped into
22 aggregates in such a way that the information contained in
23 any individual return shall not be disclosed.
24 (c) Governmental agencies. The Director may make
25 available to the Secretary of the Treasury of the United
26 States or his delegate, or the proper officer or his delegate
27 of any other state imposing a tax upon or measured by income,
28 for exclusively official purposes, information received by
29 the Department in the administration of this Act, but such
30 permission shall be granted only if the United States or such
31 other state, as the case may be, grants the Department
32 substantially similar privileges. The Director may exchange
33 information with the Illinois Department of Public Aid and
34 the Department of Human Services (acting as successor to the
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1 Department of Public Aid under the Department of Human
2 Services Act) for the purpose of verifying sources and
3 amounts of income and for other purposes directly connected
4 with the administration of this Act and the Illinois Public
5 Aid Code. The Director may exchange information with the
6 Director of the Department of Employment Security for the
7 purpose of verifying sources and amounts of income and for
8 other purposes directly connected with the administration of
9 this Act and Acts administered by the Department of
10 Employment Security. The Director may make available to the
11 Illinois Industrial Commission information regarding
12 employers for the purpose of verifying the insurance coverage
13 required under the Workers' Compensation Act and Workers'
14 Occupational Diseases Act.
15 The Director may make available to any State agency,
16 including the Illinois Supreme Court, which licenses persons
17 to engage in any occupation, information that a person
18 licensed by such agency has failed to file returns under this
19 Act or pay the tax, penalty and interest shown therein, or
20 has failed to pay any final assessment of tax, penalty or
21 interest due under this Act. The Director may also make
22 available to the Secretary of State information that a
23 corporation which has been issued a certificate of
24 incorporation by the Secretary of State has failed to file
25 returns under this Act or pay the tax, penalty and interest
26 shown therein, or has failed to pay any final assessment of
27 tax, penalty or interest due under this Act. An assessment is
28 final when all proceedings in court for review of such
29 assessment have terminated or the time for the taking thereof
30 has expired without such proceedings being instituted. For
31 taxable years ending on or after December 31, 1987, the
32 Director may make available to the Director or principal
33 officer of any Department of the State of Illinois,
34 information that a person employed by such Department has
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1 failed to file returns under this Act or pay the tax, penalty
2 and interest shown therein. For purposes of this paragraph,
3 the word "Department" shall have the same meaning as provided
4 in Section 3 of the State Employees Group Insurance Act of
5 1971.
6 (d) The Director shall make available for public
7 inspection in the Department's principal office and for
8 publication, at cost, administrative decisions issued on or
9 after January 1, 1995. These decisions are to be made
10 available in a manner so that the following taxpayer
11 information is not disclosed:
12 (1) The names, addresses, and identification
13 numbers of the taxpayer, related entities, and employees.
14 (2) At the sole discretion of the Director, trade
15 secrets or other confidential information identified as
16 such by the taxpayer, no later than 30 days after receipt
17 of an administrative decision, by such means as the
18 Department shall provide by rule.
19 The Director shall determine the appropriate extent of
20 the deletions allowed in paragraph (2). In the event the
21 taxpayer does not submit deletions, the Director shall make
22 only the deletions specified in paragraph (1).
23 The Director shall make available for public inspection
24 and publication an administrative decision within 180 days
25 after the issuance of the administrative decision. The term
26 "administrative decision" has the same meaning as defined in
27 Section 3-101 of Article III of the Code of Civil Procedure.
28 Costs collected under this Section shall be paid into the Tax
29 Compliance and Administration Fund.
30 (e) Nothing contained in this Act shall prevent the
31 Director from divulging information to any person pursuant to
32 a request or authorization made by the taxpayer, by an
33 authorized representative of the taxpayer, or, in the case of
34 information related to a joint return, by the spouse filing
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1 the joint return with the taxpayer.
2 (Source: P.A. 89-507, eff. 7-1-97; 90-491, eff. 1-1-98.)
3 (35 ILCS 5/917.5 new)
4 Sec. 917.5. Civil damages; disclosure of information.
5 (a) If any officer or employee of the Department, in
6 violation of Section 917, knowingly or negligently divulges
7 information received by the Department from returns filed by
8 a taxpayer under this Act or from any investigation conducted
9 with respect to a taxpayer under the provisions of this Act,
10 the taxpayer may bring a civil action for damages against the
11 Department in the Court of Claims.
12 (b) If any person who is not an officer or employee of
13 the Department, in violation of Section 917, knowingly or
14 negligently divulges information from returns filed by a
15 taxpayer under this Act or from any investigation conducted
16 with respect to a taxpayer under the provision of this Act,
17 the taxpayer may bring a civil action for damages against
18 that person in the circuit court of the county where the
19 taxpayer has his or her residence or commercial domicile, or
20 Cook County if the taxpayer does not have his or her
21 residence or commercial domicile in this State.
22 (c) No liability shall arise under this Section if the
23 disclosure of information was a result of a good faith, but
24 erroneous, interpretation of Section 917.
25 (d) In any action brought under subsection (a) or (b),
26 upon a finding of liability on the part of the defendant, the
27 defendant shall be liable to the plaintiff (i) in an amount
28 equal to the greater of (A) $1,000 for each act of
29 unauthorized disclosure of information or (B) the amount of
30 damages, up to $100,000, in the case of willful disclosure or
31 a disclosure that is the result of gross negligence and (ii)
32 costs and reasonable attorney's fees.
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1 Section 15. The Use Tax Act is amended by changing
2 Sections 19 and 20 as follows:
3 (35 ILCS 105/19) (from Ch. 120, par. 439.19)
4 Sec. 19. If it shall appear that an amount of tax or
5 penalty or interest has been paid in error hereunder to the
6 Department by a purchaser, as distinguished from the
7 retailer, whether such amount be paid through a mistake of
8 fact or an error of law, such purchaser may file a claim for
9 credit or refund with the Department in accordance with
10 Sections 6, 6a, 6b, and 6c of the Retailers' Occupation Tax
11 Act. If it shall appear that an amount of tax or penalty or
12 interest has been paid in error to the Department hereunder
13 by a retailer who is required or authorized to collect and
14 remit the use tax, whether such amount be paid through a
15 mistake of fact or an error of law, such retailer may file a
16 claim for credit or refund with the Department in accordance
17 with Sections 6, 6a, 6b, and 6c of the Retailers' Occupation
18 Tax Act, provided that no credit or refund shall be allowed
19 for any amount paid by any such retailer unless it shall
20 appear that he bore the burden of such amount and did not
21 shift the burden thereof to anyone else (as in the case of a
22 duplicated tax payment which the retailer made to the
23 Department and did not collect from anyone else), or unless
24 it shall appear that he or she or his or her legal
25 representative has unconditionally repaid such amount to his
26 vendee (1) who bore the burden thereof and has not shifted
27 such burden directly or indirectly in any manner whatsoever;
28 (2) who, if he has shifted such burden, has repaid
29 unconditionally such amount to his or her own vendee, and (3)
30 who is not entitled to receive any reimbursement therefor
31 from any other source than from his vendor, nor to be
32 relieved of such burden in any other manner whatsoever. If it
33 shall appear that an amount of tax has been paid in error
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1 hereunder by the purchaser to a retailer, who retained such
2 tax as reimbursement for his or her tax liability on the same
3 sale under the Retailers' Occupation Tax Act, and who
4 remitted the amount involved to the Department under the
5 Retailers' Occupation Tax Act, whether such amount be paid
6 through a mistake of fact or an error of law, the procedure
7 for recovering such tax shall be that prescribed in Sections
8 6, 6a, 6b and 6c of the Retailers' Occupation Tax Act.
9 Any credit or refund that is allowed under this Section
10 shall bear interest at the rate and in the manner specified
11 in the Uniform Penalty and Interest Act.
12 Any claim filed hereunder shall be filed upon a form
13 prescribed and furnished by the Department. The claim shall
14 be signed by the claimant (or by the claimant's legal
15 representative if the claimant shall have died or become a
16 person under legal disability), or by a duly authorized agent
17 of the claimant or his or her legal representative.
18 A claim for credit or refund shall be considered to have
19 been filed with the Department on the date upon which it is
20 received by the Department. Upon receipt of any claim for
21 credit or refund filed under this Act, any officer or
22 employee of the Department, authorized in writing by the
23 Director of Revenue to acknowledge receipt of such claims on
24 behalf of the Department, shall execute on behalf of the
25 Department, and shall deliver or mail to the claimant or his
26 duly authorized agent, a written receipt, acknowledging that
27 the claim has been filed with the Department, describing the
28 claim in sufficient detail to identify it and stating the
29 date upon which the claim was received by the Department.
30 Such written receipt shall be prima facie evidence that the
31 Department received the claim described in such receipt and
32 shall be prima facie evidence of the date when such claim was
33 received by the Department. In the absence of such a written
34 receipt, the records of the Department as to when the claim
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1 was received by the Department, or as to whether or not the
2 claim was received at all by the Department, shall be deemed
3 to be prima facie correct upon these questions in the event
4 of any dispute between the claimant (or his or her legal
5 representative) and the Department concerning these
6 questions.
7 In case the Department determines that the claimant is
8 entitled to a refund, such refund shall be made only from
9 such appropriation as may be available for that purpose. If
10 it appears unlikely that the amount appropriated would permit
11 everyone having a claim allowed during the period covered by
12 such appropriation to elect to receive a cash refund, the
13 Department, by rule or regulation, shall provide for the
14 payment of refunds in hardship cases and shall define what
15 types of cases qualify as hardship cases.
16 If a retailer who has failed to pay use tax on gross
17 receipts from retail sales is required by the Department to
18 pay such tax, such retailer, without filing any formal claim
19 with the Department, shall be allowed to take credit against
20 such use tax liability to the extent, if any, to which such
21 retailer has paid an amount equivalent to retailers'
22 occupation tax or has paid use tax in error to his or her
23 vendor or vendors of the same tangible personal property
24 which such retailer bought for resale and did not first use
25 before selling it, and no penalty or interest shall be
26 charged to such retailer on the amount of such credit.
27 However, when such credit is allowed to the retailer by the
28 Department, the vendor is precluded from refunding any of
29 that tax to the retailer and filing a claim for credit or
30 refund with respect thereto with the Department. The
31 provisions of this amendatory Act shall be applied
32 retroactively, regardless of the date of the transaction.
33 (Source: P.A. 90-562, eff. 12-16-97.)
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1 (35 ILCS 105/20) (from Ch. 120, par. 439.20)
2 Sec. 20. As soon as practicable after a claim for credit
3 or refund is filed, the Department shall examine the same and
4 determine the amount of credit or refund to which the
5 claimant or the claimant's legal representative, in the event
6 that the claimant shall have died or become a person under
7 legal disability, is entitled and shall, by its Notice of
8 Tentative Determination of Claim, notify the claimant or his
9 or her legal representative of such determination, which
10 determination shall be prima facie correct. Proof of such
11 determination by the Department may be made at any hearing
12 before the Department or in any legal proceeding by a
13 reproduced copy of the Department's record relating thereto,
14 in the name of the Department under the certificate of the
15 Director of Revenue. Such reproduced copy shall, without
16 further proof, be admitted into evidence before the
17 Department or in any legal proceeding and shall be prima
18 facie proof of the correctness of the Department's
19 determination, as shown therein. If such claimant, or the
20 legal representative of a deceased claimant or a claimant who
21 is a person under legal disability shall, within 60 days
22 after the Department's Notice of Tentative Determination of
23 Claim, file a protest thereto and request a hearing thereon,
24 the Department shall give notice to such claimant, or the
25 legal representative of a deceased claimant, or a claimant
26 who is a person under legal disability of the time and place
27 fixed for such hearing, and shall hold a hearing in
28 conformity with the provisions of this Act, and pursuant
29 thereto shall issue its Final Determination of the amount, if
30 any, found to be due as a result of such hearing, to such
31 claimant, or the legal representative of a deceased claimant
32 or a claimant who is a person under legal disability.
33 If a protest to the Department's Notice of Tentative
34 Determination of Claim is not filed within 60 days and a
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1 request for a hearing thereon is not made as provided herein,
2 the said Notice shall thereupon become and operate as a Final
3 Determination; and, if the Department's Notice of Tentative
4 Determination, upon becoming a Final Determination, indicates
5 no amount due to the claimant, or, upon issuance of a credit
6 or refund for the amount, if any, found by the Department to
7 be due, the claim in all its aspects shall be closed and no
8 longer open to protest, hearing, judicial review, or by any
9 other proceeding or action whatever, either before the
10 Department or in any court of this State. Claims for credit
11 or refund hereunder must be filed with and initially
12 determined by the Department, the remedy herein provided
13 being exclusive; and no court shall have jurisdiction to
14 determine the merits of any claim except upon review as
15 provided in this Act.
16 (Source: P.A. 90-491, eff. 1-1-98.)
17 Section 20. The Service Use Tax Act is amended by
18 changing Sections 17 and 18 as follows:
19 (35 ILCS 110/17) (from Ch. 120, par. 439.47)
20 Sec. 17. If it shall appear that an amount of tax or
21 penalty or interest has been paid in error hereunder to the
22 Department by a purchaser, as distinguished from the
23 serviceman, whether such amount be paid through a mistake of
24 fact or an error of law, such purchaser may file a claim for
25 credit or refund with the Department. If it shall appear that
26 an amount of tax or penalty or interest has been paid in
27 error to the Department hereunder by a serviceman who is
28 required or authorized to collect and remit the Service Use
29 Tax, whether such amount be paid through a mistake of fact or
30 an error of law, such serviceman may file a claim for credit
31 or refund with the Department, provided that no credit shall
32 be allowed or refund made for any amount paid by any such
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1 serviceman unless it shall appear that he bore the burden of
2 such amount and did not shift the burden thereof to anyone
3 else (as in the case of a duplicated tax payment which the
4 serviceman made to the Department and did not collect from
5 anyone else), or unless it shall appear that he or his legal
6 representative has unconditionally repaid such amount to his
7 vendee (1) who bore the burden thereof and has not shifted
8 such burden directly or indirectly in any manner whatsoever;
9 (2) who, if he has shifted such burden, has repaid
10 unconditionally such amount to his own vendee, and (3) who is
11 not entitled to receive any reimbursement therefor from any
12 other source than from his vendor, nor to be relieved of such
13 burden in any other manner whatsoever. If it shall appear
14 that an amount of tax has been paid in error hereunder by the
15 purchaser to a serviceman, who retained such tax as
16 reimbursement for his tax liability on the same sale of
17 service under the Service Occupation Tax Act, and who paid
18 such tax as required by the Service Occupation Tax Act,
19 whether such amount be paid through a mistake of fact or an
20 error of law, the procedure for recovering such tax shall be
21 that prescribed in Sections 17, 18, 19 and 20 of the Service
22 Occupation Tax Act.
23 Any credit or refund that is allowed under this Section
24 shall bear interest at the rate and in the manner specified
25 in the Uniform Penalty and Interest Act.
26 Any claim filed hereunder shall be filed upon a form
27 prescribed and furnished by the Department. The claim shall
28 be signed by the claimant (or by the claimant's legal
29 representative if the claimant shall have died or become a
30 person under legal disability), or by a duly authorized agent
31 of the claimant or his or her legal representative.
32 A claim for credit or refund shall be considered to have
33 been filed with the Department on the date upon which it is
34 received by the Department. Upon receipt of any claim for
-18- LRB9104699PTpk
1 credit or refund filed under this Act, any officer or
2 employee of the Department, authorized in writing by the
3 Director of Revenue to acknowledge receipt of such claims on
4 behalf of the Department, shall execute on behalf of the
5 Department, and shall deliver or mail to the claimant or his
6 duly authorized agent, a written receipt, acknowledging that
7 the claim has been filed with the Department, describing the
8 claim in sufficient detail to identify it and stating the
9 date upon which the claim was received by the Department.
10 Such written receipt shall be prima facie evidence that the
11 Department received the claim described in such receipt and
12 shall be prima facie evidence of the date when such claim was
13 received by the Department. In the absence of such a written
14 receipt, the records of the Department as to when the claim
15 was received by the Department, or as to whether or not the
16 claim was received at all by the Department, shall be deemed
17 to be prima facie correct upon these questions in the event
18 of any dispute between the claimant (or his or her legal
19 representative) and the Department concerning these
20 questions.
21 In case the Department determines that the claimant is
22 entitled to a refund, such refund shall be made only from
23 such appropriation as may be available for that purpose. If
24 it appears unlikely that the amount appropriated would permit
25 everyone having a claim allowed during the period covered by
26 such appropriation to elect to receive a cash refund, the
27 Department, by rule or regulation, shall provide for the
28 payment of refunds in hardship cases and shall define what
29 types of cases qualify as hardship cases.
30 (Source: P.A. 87-205.)
31 (35 ILCS 110/18) (from Ch. 120, par. 439.48)
32 Sec. 18. As soon as practicable after a claim for credit
33 or refund is filed, the Department shall examine the same and
-19- LRB9104699PTpk
1 determine the amount of credit or refund to which the
2 claimant or the claimant's legal representative, in the event
3 that the claimant shall have died or become a person under
4 legal disability, is entitled and shall, by its Notice of
5 Tentative Determination of Claim, notify the claimant or his
6 legal representative of such determination, which
7 determination shall be prima facie correct. Proof of such
8 determination by the Department may be made at any hearing
9 before the Department or in any legal proceeding by a
10 reproduced copy of the Department's record relating thereto,
11 in the name of the Department under the certificate of the
12 Director of Revenue. Such reproduced copy shall, without
13 further proof, be admitted into evidence before the
14 Department or in any legal proceeding and shall be prima
15 facie proof of the correctness of the Department's
16 determination, as shown therein. If such claimant, or the
17 legal representative of a deceased claimant or a claimant who
18 is a person under legal disability, shall, within 60 days
19 after the Department's Notice of Tentative Determination of
20 Claim, file a protest thereto and request a hearing thereon,
21 the Department shall give notice to such claimant, or the
22 legal representative of a deceased claimant or claimant who
23 is a person under legal disability, of the time and place
24 fixed for such hearing, and shall hold a hearing in
25 conformity with the provisions of this Act, and pursuant
26 thereto shall issue its Final Determination of the amount, if
27 any, found to be due as a result of such hearing, to such
28 claimant, or the legal representative of a deceased or
29 incompetent claimant.
30 If a protest to the Department's Notice of Tentative
31 Determination of Claim is not filed within 60 days and a
32 request for a hearing thereon is not made as provided herein,
33 the Notice shall thereupon become and operate as a Final
34 Determination; and, if the Department's Notice of Tentative
-20- LRB9104699PTpk
1 Determination upon becoming a Final Determination, indicates
2 no amount due to the claimant, or, upon issuance of a credit
3 or refund for the amount, if any, found by the Department to
4 be due, the claim in all its aspects shall be closed and no
5 longer open to protest, hearing, judicial review, or by any
6 other proceeding or action whatever, either before the
7 Department or in any court of this State. Claims for credit
8 or refund hereunder must be filed with and initially
9 determined by the Department, the remedy herein provided
10 being exclusive; and no court shall have jurisdiction to
11 determine the merits of any claim except upon review as
12 provided in this Act.
13 (Source: P.A. 90-491, eff. 1-1-98.)
14 Section 25. The Service Occupation Tax Act is amended by
15 changing Sections 17 and 18 as follows:
16 (35 ILCS 115/17) (from Ch. 120, par. 439.117)
17 Sec. 17. If it shall appear that an amount of tax or
18 penalty or interest has been paid in error hereunder directly
19 to the Department by a serviceman, whether such amount be
20 paid through a mistake of fact or an error of law, such
21 serviceman may file a claim for credit or refund with the
22 Department. If it shall appear that an amount of tax or
23 penalty or interest has been paid in error to the Department
24 hereunder by a supplier who is required or authorized to
25 collect and remit the Service Occupation Tax, whether such
26 amount be paid through a mistake of fact or an error of law,
27 such supplier may file a claim for credit or refund with the
28 Department, provided that no credit shall be allowed nor any
29 refund made for any amount paid by any such supplier unless
30 it shall appear that he bore the burden of such amount and
31 did not shift the burden thereof to anyone else (as in the
32 case of a duplicated tax payment which the supplier made to
-21- LRB9104699PTpk
1 the Department and did not collect from anyone else), or
2 unless it shall appear that he or his legal representative
3 has unconditionally repaid such amount to his vendee (1) who
4 bore the burden thereof and has not shifted such burden
5 directly or indirectly in any manner whatsoever; (2) who, if
6 he has shifted such burden, has repaid unconditionally such
7 amount to his own vendee, and (3) who is not entitled to
8 receive any reimbursement therefor from any other source than
9 from his supplier, nor to be relieved of such burden in any
10 other manner whatsoever.
11 Any credit or refund that is allowed under this Section
12 shall bear interest at the rate and in the manner specified
13 in the Uniform Penalty and Interest Act.
14 Any claim filed hereunder shall be filed upon a form
15 prescribed and furnished by the Department. The claim shall
16 be signed by the claimant (or by the claimant's legal
17 representative if the claimant shall have died or become a
18 person under legal disability), or by a duly authorized agent
19 of the claimant or his or her legal representative.
20 A claim for credit or refund shall be considered to have
21 been filed with the Department on the date upon which it is
22 received by the Department. Upon receipt of any claim for
23 credit or refund filed under this Act, any officer or
24 employee of the Department, authorized in writing by the
25 Director of Revenue to acknowledge receipt of such claims on
26 behalf of the Department, shall execute on behalf of the
27 Department, and shall deliver or mail to the claimant or his
28 or her duly authorized agent, a written receipt,
29 acknowledging that the claim has been filed with the
30 Department, describing the claim in sufficient detail to
31 identify it and stating the date upon which the claim was
32 received by the Department. Such written receipt shall be
33 prima facie evidence that the Department received the claim
34 described in such receipt and shall be prima facie evidence
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1 of the date when such claim was received by the Department.
2 In the absence of such a written receipt, the records of the
3 Department as to when the claim was received by the
4 Department, or as to whether or not the claim was received at
5 all by the Department, shall be deemed to be prima facie
6 correct upon these questions in the event of any dispute
7 between the claimant (or his legal representative) and the
8 Department concerning these questions.
9 In case the Department determines that the claimant is
10 entitled to a refund, such refund shall be made only from
11 such appropriation as may be available for that purpose. If
12 it appears unlikely that the amount appropriated would permit
13 everyone having a claim allowed during the period covered by
14 such appropriation to elect to receive a cash refund, the
15 Department, by rule or regulation, shall provide for the
16 payment of refunds in hardship cases and shall define what
17 types of cases qualify as hardship cases.
18 (Source: P.A. 87-205.)
19 (35 ILCS 115/18) (from Ch. 120, par. 439.118)
20 Sec. 18. As soon as practicable after a claim for credit
21 or refund is filed, the Department shall examine the same and
22 determine the amount of credit or refund to which the
23 claimant or the claimant's legal representative, in the event
24 that the claimant shall have died or become a person under
25 legal disability, is entitled and shall, by its Notice of
26 Tentative Determination of Claim, notify the claimant or his
27 or her legal representative of such determination, which
28 determination shall be prima facie correct. Proof of such
29 determination by the Department may be made at any hearing
30 before the Department or in any legal proceeding by a
31 reproduced copy of the Department's record relating thereto,
32 in the name of the Department under the certificate of the
33 Director of Revenue. Such reproduced copy shall, without
-23- LRB9104699PTpk
1 further proof, be admitted into evidence before the
2 Department or in any legal proceeding and shall be prima
3 facie proof of the correctness of the Department's
4 determination, as shown therein. If such claimant, or the
5 legal representative of a deceased claimant or a claimant who
6 is under legal disability shall, within 60 days after the
7 Department's Notice of Tentative Determination of Claim, file
8 a protest thereto and request a hearing thereon, the
9 Department shall give notice to such claimant, or the legal
10 representative of a deceased claimant or a claimant who is
11 under legal disability, of the time and place fixed for such
12 hearing, and shall hold a hearing in conformity with the
13 provisions of this Act, and pursuant thereto shall issue its
14 Final Determination of the amount, if any, found to be due as
15 a result of such hearing, to such claimant, or the legal
16 representative of a deceased claimant or a claimant who is
17 under legal disability.
18 If a protest to the Department's Notice of Tentative
19 Determination of Claim is not filed within 60 days and a
20 request for a hearing thereon is not made as provided herein,
21 the Notice shall thereupon become and operate as a Final
22 Determination; and, if the Department's Notice of Tentative
23 Determination, upon becoming a Final Determination, indicates
24 no amount due to the claimant, or, upon issuance of a credit
25 or refund for the amount, if any, found by the Department to
26 be due, the claim in all its aspects shall be closed and no
27 longer open to protest, hearing, judicial review, or by any
28 other proceeding or action whatever, either before the
29 Department or in any court of this State. Claims for credit
30 or refund hereunder must be filed with and initially
31 determined by the Department, the remedy herein provided
32 being exclusive; and no court shall have jurisdiction to
33 determine the merits of any claim except upon review as
34 provided in this Act.
-24- LRB9104699PTpk
1 (Source: P.A. 90-491, eff. 1-1-98.)
2 Section 30. The Retailer's Occupation Tax Act is amended
3 by changing Sections 4, 5, 6a, and 6b as follows:
4 (35 ILCS 120/4) (from Ch. 120, par. 443)
5 Sec. 4. As soon as practicable after any return is
6 filed, the Department shall examine such return and shall, if
7 necessary, correct such return according to its best judgment
8 and information. If the correction of a return results in an
9 amount of tax that is understated on the taxpayer's return
10 due to a mathematical error, the Department shall notify the
11 taxpayer that the amount of tax in excess of that shown on
12 the return is due and has been assessed. The term
13 "mathematical error" means arithmetic errors or incorrect
14 computations on the return or supporting schedules. No such
15 notice of additional tax due shall be issued on and after
16 each July 1 and January 1 covering gross receipts received
17 during any month or period of time more than 3 years prior to
18 such July 1 and January 1, respectively. Such notice of
19 additional tax due shall not be considered a notice of tax
20 liability nor shall the taxpayer have any right of protest.
21 In the event that the return is corrected for any reason
22 other than a mathematical error, any return so corrected by
23 the Department shall be prima facie correct and shall be
24 prima facie evidence of the correctness of the amount of tax
25 due, as shown therein. In correcting transaction by
26 transaction reporting returns provided for in Section 3 of
27 this Act, it shall be permissible for the Department to show
28 a single corrected return figure for any given period of a
29 calendar month instead of having to correct each transaction
30 by transaction return form individually and having to show a
31 corrected return figure for each of such transaction by
32 transaction return forms. In making a correction of
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1 transaction by transaction, monthly or quarterly returns
2 covering a period of 6 months or more, it shall be
3 permissible for the Department to show a single corrected
4 return figure for any given 6-month period.
5 Instead of requiring the person filing such return to
6 file an amended return, the Department may simply notify him
7 of the correction or corrections it has made.
8 Proof of such correction by the Department may be made at
9 any hearing before the Department or in any legal proceeding
10 by a reproduced copy or computer print-out of the
11 Department's record relating thereto in the name of the
12 Department under the certificate of the Director of Revenue.
13 If reproduced copies of the Department's records are offered
14 as proof of such correction, the Director must certify that
15 those copies are true and exact copies of records on file
16 with the Department. If computer print-outs of the
17 Department's records are offered as proof of such correction,
18 the Director must certify that those computer print-outs are
19 true and exact representations of records properly entered
20 into standard electronic computing equipment, in the regular
21 course of the Department's business, at or reasonably near
22 the time of the occurrence of the facts recorded, from
23 trustworthy and reliable information. Such certified
24 reproduced copy or certified computer print-out shall without
25 further proof, be admitted into evidence before the
26 Department or in any legal proceeding and shall be prima
27 facie proof of the correctness of the amount of tax due, as
28 shown therein.
29 If the tax computed upon the basis of the gross receipts
30 as fixed by the Department is greater than the amount of tax
31 due under the return or returns as filed, the Department
32 shall (or if the tax or any part thereof that is admitted to
33 be due by a return or returns, whether filed on time or not,
34 is not paid, the Department may) issue the taxpayer a notice
-26- LRB9104699PTpk
1 of tax liability for the amount of tax claimed by the
2 Department to be due, together with a penalty in an amount
3 determined in accordance with Section 3-3 of the Uniform
4 Penalty and Interest Act. Provided, that if the incorrectness
5 of any return or returns as determined by the Department is
6 due to negligence or fraud, said penalty shall be in an
7 amount determined in accordance with Section 3-5 or Section
8 3-6 of the Uniform Penalty and Interest Act, as the case may
9 be. If the notice of tax liability is not based on a
10 correction of the taxpayer's return or returns, but is based
11 on the taxpayer's failure to pay all or a part of the tax
12 admitted by his return or returns (whether filed on time or
13 not) to be due, such notice of tax liability shall be prima
14 facie correct and shall be prima facie evidence of the
15 correctness of the amount of tax due, as shown therein.
16 Proof of such notice of tax liability by the Department
17 may be made at any hearing before the Department or in any
18 legal proceeding by a reproduced copy of the Department's
19 record relating thereto in the name of the Department under
20 the certificate of the Director of Revenue. Such reproduced
21 copy shall without further proof, be admitted into evidence
22 before the Department or in any legal proceeding and shall be
23 prima facie proof of the correctness of the amount of tax
24 due, as shown therein.
25 If the person filing any return dies or becomes a person
26 under legal disability at any time before the Department
27 issues its notice of tax liability, such notice shall be
28 issued to the administrator, executor or other legal
29 representative, as such, of such person.
30 Except in case of a fraudulent return, or in the case of
31 an amended return (where a notice of tax liability may be
32 issued on or after each January 1 and July 1 for an amended
33 return filed not more than 3 years prior to such January 1 or
34 July 1, respectively), no notice of tax liability shall be
-27- LRB9104699PTpk
1 issued on and after each January 1 and July 1 covering gross
2 receipts received during any month or period of time more
3 than 3 years prior to such January 1 and July 1,
4 respectively. If, before the expiration of the time
5 prescribed in this Section for the issuance of a notice of
6 tax liability, both the Department and the taxpayer have
7 consented in writing to its issuance after such time, such
8 notice may be issued at any time prior to the expiration of
9 the period agreed upon. The period so agreed upon may be
10 extended by subsequent agreements in writing made before the
11 expiration of the period previously agreed upon. The
12 foregoing limitations upon the issuance of a notice of tax
13 liability shall not apply to the issuance of a notice of tax
14 liability with respect to any period of time prior thereto in
15 cases where the Department has, within the period of
16 limitation then provided, notified the person making the
17 return of a notice of tax liability even though such return,
18 with which the tax that was shown by such return to be due
19 was paid when the return was filed, had not been corrected by
20 the Department in the manner required herein prior to the
21 issuance of such notice, but in no case shall the amount of
22 any such notice of tax liability for any period otherwise
23 barred by this Act exceed for such period the amount shown in
24 the notice of tax liability theretofore issued.
25 If, when a tax or penalty under this Act becomes due and
26 payable, the person alleged to be liable therefor is out of
27 the State, the notice of tax liability may be issued within
28 the times herein limited after his coming into or return to
29 the State; and if, after the tax or penalty under this Act
30 becomes due and payable, the person alleged to be liable
31 therefor departs from and remains out of the State, the time
32 of his or her absence is no part of the time limited for the
33 issuance of the notice of tax liability; but the foregoing
34 provisions concerning absence from the State shall not apply
-28- LRB9104699PTpk
1 to any case in which, at the time when a tax or penalty
2 becomes due under this Act, the person allegedly liable
3 therefor is not a resident of this State.
4 The time limitation period on the Department's right to
5 issue a notice of tax liability shall not run during any
6 period of time in which the Order of any Court has the effect
7 of enjoining or restraining the Department from issuing the
8 notice of tax liability.
9 If such person or legal representative shall within 60
10 days after such notice of tax liability file a protest to
11 said notice of tax liability and request a hearing thereon,
12 the Department shall give notice to such person or legal
13 representative of the time and place fixed for such hearing
14 and shall hold a hearing in conformity with the provisions of
15 this Act, and pursuant thereto shall issue to such person or
16 legal representative a final assessment for the amount found
17 to be due as a result of such hearing.
18 If a protest to the notice of tax liability and a request
19 for a hearing thereon is not filed within 60 days after such
20 notice, such notice of tax liability shall become final
21 without the necessity of a final assessment being issued and
22 shall be deemed to be a final assessment.
23 After the issuance of a final assessment, or a notice of
24 tax liability which becomes final without the necessity of
25 actually issuing a final assessment as hereinbefore provided,
26 the Department, at any time before such assessment is reduced
27 to judgment, may (subject to rules of the Department) grant a
28 rehearing (or grant departmental review and hold an original
29 hearing if no previous hearing in the matter has been held)
30 upon the application of the person aggrieved. Pursuant to
31 such hearing or rehearing, the Department shall issue a
32 revised final assessment to such person or his legal
33 representative for the amount found to be due as a result of
34 such hearing or rehearing.
-29- LRB9104699PTpk
1 (Source: P.A. 89-379, eff. 1-1-96.)
2 (35 ILCS 120/5) (from Ch. 120, par. 444)
3 Sec. 5. In case any person engaged in the business of
4 selling tangible personal property at retail fails to file a
5 return when and as herein required, but thereafter, prior to
6 the Department's issuance of a notice of tax liability under
7 this Section, files a return and pays the tax, he shall also
8 pay a penalty in an amount determined in accordance with
9 Section 3-3 of the Uniform Penalty and Interest Act.
10 In case any person engaged in the business of selling
11 tangible personal property at retail files the return at the
12 time required by this Act but fails to pay the tax, or any
13 part thereof, when due, a penalty in an amount determined in
14 accordance with Section 3-3 of the Uniform Penalty and
15 Interest Act shall be added thereto.
16 In case any person engaged in the business of selling
17 tangible personal property at retail fails to file a return
18 when and as herein required, but thereafter, prior to the
19 Department's issuance of a notice of tax liability under this
20 Section, files a return but fails to pay the entire tax, a
21 penalty in an amount determined in accordance with Section
22 3-3 of the Uniform Penalty and Interest Act shall be added
23 thereto.
24 In case any person engaged in the business of selling
25 tangible personal property at retail fails to file a return,
26 the Department shall determine the amount of tax due from him
27 according to its best judgment and information, which amount
28 so fixed by the Department shall be prima facie correct and
29 shall be prima facie evidence of the correctness of the
30 amount of tax due, as shown in such determination. In making
31 any such determination of tax due, it shall be permissible
32 for the Department to show a figure that represents the tax
33 due for any given period of 6 months instead of showing the
-30- LRB9104699PTpk
1 amount of tax due for each month separately. Proof of such
2 determination by the Department may be made at any hearing
3 before the Department or in any legal proceeding by a
4 reproduced copy or computer print-out of the Department's
5 record relating thereto in the name of the Department under
6 the certificate of the Director of Revenue. If reproduced
7 copies of the Department's records are offered as proof of
8 such determination, the Director must certify that those
9 copies are true and exact copies of records on file with the
10 Department. If computer print-outs of the Department's
11 records are offered as proof of such determination, the
12 Director must certify that those computer print-outs are true
13 and exact representations of records properly entered into
14 standard electronic computing equipment, in the regular
15 course of the Department's business, at or reasonably near
16 the time of the occurrence of the facts recorded, from
17 trustworthy and reliable information. Such certified
18 reproduced copy or certified computer print-out shall,
19 without further proof, be admitted into evidence before the
20 Department or in any legal proceeding and shall be prima
21 facie proof of the correctness of the amount of tax due, as
22 shown therein. The Department shall issue the taxpayer a
23 notice of tax liability for the amount of tax claimed by the
24 Department to be due, together with a penalty of 30% thereof.
25 However, where the failure to file any tax return
26 required under this Act on the date prescribed therefor
27 (including any extensions thereof), is shown to be
28 unintentional and nonfraudulent and has not occurred in the 2
29 years immediately preceding the failure to file on the
30 prescribed date or is due to other reasonable cause the
31 penalties imposed by this Act shall not apply.
32 If such person or the legal representative of such person
33 files, within 60 days after such notice, a protest to such
34 notice of tax liability and requests a hearing thereon, the
-31- LRB9104699PTpk
1 Department shall give notice to such person or the legal
2 representative of such person of the time and place fixed for
3 such hearing, and shall hold a hearing in conformity with the
4 provisions of this Act, and pursuant thereto shall issue a
5 final assessment to such person or to the legal
6 representative of such person for the amount found to be due
7 as a result of such hearing.
8 If a protest to the notice of tax liability and a request
9 for a hearing thereon is not filed within 60 days after such
10 notice, such notice of tax liability shall become final
11 without the necessity of a final assessment being issued and
12 shall be deemed to be a final assessment.
13 After the issuance of a final assessment, or a notice of
14 tax liability which becomes final without the necessity of
15 actually issuing a final assessment as hereinbefore provided,
16 the Department, at any time before such assessment is reduced
17 to judgment, may (subject to rules of the Department) grant a
18 rehearing (or grant departmental review and hold an original
19 hearing if no previous hearing in the matter has been held)
20 upon the application of the person aggrieved. Pursuant to
21 such hearing or rehearing, the Department shall issue a
22 revised final assessment to such person or his legal
23 representative for the amount found to be due as a result of
24 such hearing or rehearing.
25 Except in case of failure to file a return, or with the
26 consent of the person to whom the notice of tax liability is
27 to be issued, no notice of tax liability shall be issued on
28 and after each July 1 and January 1 covering gross receipts
29 received during any month or period of time more than 3 years
30 prior to such July 1 and January 1, respectively, except that
31 if a return is not filed at the required time, a notice of
32 tax liability may be issued not later than 3 years after the
33 time the return is filed. The foregoing limitations upon the
34 issuance of a notice of tax liability shall not apply to the
-32- LRB9104699PTpk
1 issuance of any such notice with respect to any period of
2 time prior thereto in cases where the Department has, within
3 the period of limitation then provided, notified a person of
4 the amount of tax computed even though the Department had not
5 determined the amount of tax due from such person in the
6 manner required herein prior to the issuance of such notice,
7 but in no case shall the amount of any such notice of tax
8 liability for any period otherwise barred by this Act exceed
9 for such period the amount shown in the notice theretofore
10 issued.
11 If, when a tax or penalty under this Act becomes due and
12 payable, the person alleged to be liable therefor is out of
13 the State, the notice of tax liability may be issued within
14 the times herein limited after his or her coming into or
15 return to the State; and if, after the tax or penalty under
16 this Act becomes due and payable, the person alleged to be
17 liable therefor departs from and remains out of the State,
18 the time of his or her absence is no part of the time limited
19 for the issuance of the notice of tax liability; but the
20 foregoing provisions concerning absence from the State shall
21 not apply to any case in which, at the time when a tax or
22 penalty becomes due under this Act, the person allegedly
23 liable therefor is not a resident of this State.
24 The time limitation period on the Department's right to
25 issue a notice of tax liability shall not run during any
26 period of time in which the order of any court has the effect
27 of enjoining or restraining the Department from issuing the
28 notice of tax liability.
29 In case of failure to pay the tax, or any portion
30 thereof, or any penalty provided for in this Act, or
31 interest, when due, the Department may bring suit to recover
32 the amount of such tax, or portion thereof, or penalty or
33 interest; or, if the taxpayer has died or become a person
34 under legal disability, may file a claim therefor against his
-33- LRB9104699PTpk
1 estate; provided that no such suit with respect to any tax,
2 or portion thereof, or penalty, or interest shall be
3 instituted more than 2 years after the date any proceedings
4 in court for review thereof have terminated or the time for
5 the taking thereof has expired without such proceedings being
6 instituted, except with the consent of the person from whom
7 such tax or penalty or interest is due; nor, except with such
8 consent, shall such suit be instituted more than 2 years
9 after the date any return is filed with the Department in
10 cases where the return constitutes the basis for the suit for
11 unpaid tax, or portion thereof, or penalty provided for in
12 this Act, or interest: Provided that the time limitation
13 period on the Department's right to bring any such suit shall
14 not run during any period of time in which the order of any
15 court has the effect of enjoining or restraining the
16 Department from bringing such suit.
17 After the expiration of the period within which the
18 person assessed may file an action for judicial review under
19 the Administrative Review Law without such an action being
20 filed, a certified copy of the final assessment or revised
21 final assessment of the Department may be filed with the
22 Circuit Court of the county in which the taxpayer has his
23 principal place of business, or of Sangamon County in those
24 cases in which the taxpayer does not have his principal place
25 of business in this State. The certified copy of the final
26 assessment or revised final assessment shall be accompanied
27 by a certification which recites facts that are sufficient to
28 show that the Department complied with the jurisdictional
29 requirements of the Act in arriving at its final assessment
30 or its revised final assessment and that the taxpayer had his
31 opportunity for an administrative hearing and for judicial
32 review, whether he availed himself or herself of either or
33 both of these opportunities or not. If the court is satisfied
34 that the Department complied with the jurisdictional
-34- LRB9104699PTpk
1 requirements of the Act in arriving at its final assessment
2 or its revised final assessment and that the taxpayer had his
3 opportunity for an administrative hearing and for judicial
4 review, whether he availed himself of either or both of these
5 opportunities or not, the court shall render judgment in
6 favor of the Department and against the taxpayer for the
7 amount shown to be due by the final assessment or the revised
8 final assessment, plus any interest which may be due, and
9 such judgment shall be entered in the judgment docket of the
10 court. Such judgment shall bear the rate of interest as set
11 by the Uniform Penalty and Interest Act, but otherwise shall
12 have the same effect as other judgments. The judgment may be
13 enforced, and all laws applicable to sales for the
14 enforcement of a judgment shall be applicable to sales made
15 under such judgments. The Department shall file the certified
16 copy of its assessment, as herein provided, with the Circuit
17 Court within 2 years after such assessment becomes final
18 except when the taxpayer consents in writing to an extension
19 of such filing period, and except that the time limitation
20 period on the Department's right to file the certified copy
21 of its assessment with the Circuit Court shall not run during
22 any period of time in which the order of any court has the
23 effect of enjoining or restraining the Department from filing
24 such certified copy of its assessment with the Circuit Court.
25 If, when the cause of action for a proceeding in court
26 accrues against a person, he or she is out of the State, the
27 action may be commenced within the times herein limited,
28 after his or her coming into or return to the State; and if,
29 after the cause of action accrues, he or she departs from and
30 remains out of the State, the time of his or her absence is
31 no part of the time limited for the commencement of the
32 action; but the foregoing provisions concerning absence from
33 the State shall not apply to any case in which, at the time
34 the cause of action accrues, the party against whom the cause
-35- LRB9104699PTpk
1 of action accrues is not a resident of this State. The time
2 within which a court action is to be commenced by the
3 Department hereunder shall not run from the date the taxpayer
4 files a petition in bankruptcy under the Federal Bankruptcy
5 Act until 30 days after notice of termination or expiration
6 of the automatic stay imposed by the Federal Bankruptcy Act.
7 No claim shall be filed against the estate of any
8 deceased person or any person under legal disability for any
9 tax or penalty or part of either, or interest, except in the
10 manner prescribed and within the time limited by the Probate
11 Act of 1975, as amended.
12 The collection of tax or penalty or interest by any means
13 provided for herein shall not be a bar to any prosecution
14 under this Act.
15 In addition to any penalty provided for in this Act, any
16 amount of tax which is not paid when due shall bear interest
17 at the rate and in the manner specified in Sections 3-2 and
18 3-9 of the Uniform Penalty and Interest Act from the date
19 when such tax becomes past due until such tax is paid or a
20 judgment therefor is obtained by the Department. If the time
21 for making or completing an audit of a taxpayer's books and
22 records is extended with the taxpayer's consent, at the
23 request of and for the convenience of the Department, beyond
24 the date on which the statute of limitations upon the
25 issuance of a notice of tax liability by the Department
26 otherwise would run, no interest shall accrue during the
27 period of such extension or until a Notice of Tax Liability
28 is issued, whichever occurs first.
29 In addition to any other remedy provided by this Act, and
30 regardless of whether the Department is making or intends to
31 make use of such other remedy, where a corporation or limited
32 liability company registered under this Act violates the
33 provisions of this Act or of any rule or regulation
34 promulgated thereunder, the Department may give notice to the
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1 Attorney General of the identity of such a corporation or
2 limited liability company and of the violations committed by
3 such a corporation or limited liability company, for such
4 action as is not already provided for by this Act and as the
5 Attorney General may deem appropriate.
6 If the Department determines that an amount of tax or
7 penalty or interest was incorrectly assessed, whether as the
8 result of a mistake of fact or an error of law, the
9 Department shall waive the amount of tax or penalty or
10 interest that accrued due to the incorrect assessment.
11 (Source: P.A. 87-193; 87-205; 87-895; 88-480.)
12 (35 ILCS 120/6a) (from Ch. 120, par. 445a)
13 Sec. 6a. Claims for credit or refund shall be prepared
14 and filed upon forms provided by the Department. Each claim
15 shall state: (1) The name and principal business address of
16 the claimant; (2) the period covered by the claim; (3) the
17 total amount of credit or refund claimed, giving in detail
18 the net amount of taxable receipts reported each month or
19 other return period used by the claimant as the basis for
20 filing returns in the period covered by the claim; (4) the
21 total amount of tax paid for each return period; (5) receipts
22 upon which tax liability is admitted for each return period;
23 (6) the amount of receipts on which credit or refund is
24 claimed for each return period; (7) the tax due for each
25 return period as corrected; (8) the amount of credit or
26 refund claimed for each return period; (9) reason or reasons
27 why the amount, for which the claim is filed, is alleged to
28 have been paid in error; (10) a list of the evidence
29 (documentary or otherwise) which the claimant has available
30 to establish his compliance with Section 6 as to bearing the
31 burden of the tax for which he seeks credit or refund; (11)
32 payments or parts thereof (if any) included in the claim and
33 paid by the claimant under protest; (12) sufficient
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1 information to identify any suit which involves this Act, and
2 to which the claimant is a party, and (13) such other
3 information as the Department may reasonably require. Where
4 the claimant is a corporation or limited liability company,
5 the claim filed on behalf of such corporation or limited
6 liability company shall be signed by the president,
7 vice-president, secretary or treasurer, by the properly
8 accredited agent of such corporation, or by a manager,
9 member, or properly accredited agent of the limited liability
10 company.
11 A claim for credit or refund shall be considered to have
12 been filed with the Department on the date upon which it is
13 received by the Department. Upon receipt of any claim for
14 credit or refund filed under this Act, any officer or
15 employee of the Department, authorized in writing by the
16 Director of Revenue to acknowledge receipt of such claims on
17 behalf of the Department, shall execute on behalf of the
18 Department, and shall deliver or mail to the claimant or his
19 duly authorized agent, a written receipt, acknowledging that
20 the claim has been filed with the Department, describing the
21 claim in sufficient detail to identify it and stating the
22 date upon which the claim was received by the Department.
23 Such written receipt shall be prima facie evidence that the
24 Department received the claim described in such receipt and
25 shall be prima facie evidence of the date when such claim was
26 received by the Department. In the absence of such a written
27 receipt, the records of the Department as to when the claim
28 was received by the Department, or as to whether or not the
29 claim was received at all by the Department, shall be deemed
30 to be prima facie correct upon these questions in the event
31 of any dispute between the claimant (or his legal
32 representative) and the Department concerning these
33 questions.
34 (Source: P.A. 88-480.)
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1 (35 ILCS 120/6b) (from Ch. 120, par. 445b)
2 Sec. 6b. As soon as practicable after a claim for credit
3 or refund is filed, the Department shall examine the same and
4 determine the amount of credit or refund to which the
5 claimant or the taxpayer's legal representative, in the event
6 that the taxpayer has died or become incompetent, is entitled
7 and shall, by its Notice of Tentative Determination of Claim,
8 notify the claimant or his legal representative of such
9 determination, which determination shall be prima facie
10 correct. Proof of such determination by the Department may be
11 made at any hearing before the Department or in any legal
12 proceeding by a reproduced copy of the Department's record
13 relating thereto, in the name of the Department under the
14 certificate of the Director of Revenue. Such reproduced copy
15 shall, without further proof, be admitted into evidence
16 before the Department or in any legal proceeding and shall be
17 prima facie proof of the correctness of the Department's
18 determination, as shown therein. If such claimant, or the
19 legal representative of a deceased or incompetent taxpayer,
20 within 60 days after the Department's Notice of Tentative
21 Determination of Claim, files a protest thereto and requests
22 a hearing thereon, the Department shall give notice to such
23 claimant, or the legal representative of a deceased taxpayer,
24 or a taxpayer who is under legal disability of the time and
25 place fixed for such hearing, and shall hold a hearing in
26 conformity with the provisions of this Act, and pursuant
27 thereto shall issue its Final Determination of the amount, if
28 any, found to be due as a result of such hearing, to such
29 claimant, or the legal representative of a deceased taxpayer,
30 or a taxpayer who is under legal disability. The Department's
31 Final Determination may be reviewed by the proper Circuit
32 Court, in the same manner, within the same time, upon the
33 same terms and conditions and to the same extent, as provided
34 by Section 12 of this Act.
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1 In any case in which there has been an erroneous refund
2 of tax payable under this Act, a notice of tax liability may
3 be issued at any time within 3 years from the making of that
4 refund, or within 5 years from the making of that refund if
5 it appears that any part of the refund was induced by fraud
6 or the misrepresentation of a material fact. The amount of
7 any proposed assessment set forth in the notice shall be
8 limited to the amount of the erroneous refund.
9 (Source: P.A. 87-876; 87-879; 88-45.)
10 Section 35. The Cigarette Tax Act is amended by changing
11 Sections 9a and 9b as follows:
12 (35 ILCS 130/9a) (from Ch. 120, par. 453.9a)
13 Sec. 9a. (1) As soon as practicable after any return is
14 filed, the Department shall examine such return and shall
15 correct such return according to its best judgment and
16 information, which return so corrected by the Department
17 shall be prima facie correct and shall be prima facie
18 evidence of the correctness of the amount of tax due, as
19 shown therein. Instead of requiring the distributor to file
20 an amended return, the Department may simply notify the
21 distributor of the correction or corrections it has made.
22 Proof of such correction by the Department may be made at any
23 hearing before the Department or in any legal proceeding by a
24 reproduced copy of the Department's record relating thereto
25 in the name of the Department under the certificate of the
26 Director of Revenue. Such reproduced copy shall, without
27 further proof, be admitted into evidence before the
28 Department or in any legal proceeding and shall be prima
29 facie proof of the correctness of the amount of tax due, as
30 shown therein. If the Department finds that any amount of tax
31 is due from the distributor, the Department shall issue the
32 distributor a notice of tax liability for the amount of tax
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1 claimed by the Department to be due, together with a penalty
2 in an amount determined in accordance with Sections 3-3, 3-5
3 and 3-6 of the Uniform Penalty and Interest Act. If, in
4 administering the provisions of this Act, comparison of a
5 return or returns of a distributor with the books, records
6 and inventories of such distributor discloses a deficiency
7 which cannot be allocated by the Department to a particular
8 month or months, the Department shall issue the distributor a
9 notice of tax liability for the amount of tax claimed by the
10 Department to be due for a given period, but without any
11 obligation upon the Department to allocate such deficiency to
12 any particular month or months, together with a penalty in an
13 amount determined in accordance with Sections 3-3, 3-5 and
14 3-6 of the Uniform Penalty and Interest Act, under which
15 circumstances the aforesaid notice of tax liability shall be
16 prima facie correct and shall be prima facie evidence of the
17 correctness of the amount of tax due, as shown therein; and
18 proof of such correctness may be made in accordance with, and
19 the admissibility of a reproduced copy of such notice of tax
20 liability shall be governed by, all the provisions of this
21 Act applicable to corrected returns. If any distributor
22 filing any return dies or becomes a person under legal
23 disability at any time before the Department issues its
24 notice of tax liability, such notice shall be issued to the
25 administrator, executor or other legal representative, as
26 such, of such distributor.
27 (2) If, within 20 days after such notice of tax
28 liability, the distributor or his or her legal representative
29 files a protest to such notice of tax liability and requests
30 a hearing thereon, the Department shall give notice to such
31 distributor or legal representative of the time and place
32 fixed for such hearing, and shall hold a hearing in
33 conformity with the provisions of this Act, and pursuant
34 thereto shall issue a final assessment to such distributor or
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1 legal representative for the amount found to be due as a
2 result of such hearing. If a protest to the notice of tax
3 liability and a request for a hearing thereon is not filed
4 within 20 days after such notice of tax liability, such
5 notice of tax liability shall become final without the
6 necessity of a final assessment being issued and shall be
7 deemed to be a final assessment.
8 (3) In case of failure to pay the tax, or any portion
9 thereof, or any penalty provided for in this Act, when due,
10 the Department may bring suit to recover the amount of such
11 tax, or portion thereof, or penalty; or, if the taxpayer dies
12 or becomes incompetent, by filing claim therefor against his
13 estate; provided that no such action with respect to any tax,
14 or portion thereof, or penalty, shall be instituted more than
15 2 years after the cause of action accrues, except with the
16 consent of the person from whom such tax or penalty is due.
17 After the expiration of the period within which the
18 person assessed may file an action for judicial review under
19 the Administrative Review Law without such an action being
20 filed, a certified copy of the final assessment or revised
21 final assessment of the Department may be filed with the
22 Circuit Court of the county in which the taxpayer has his or
23 her principal place of business, or of Sangamon County in
24 those cases in which the taxpayer does not have his principal
25 place of business in this State. The certified copy of the
26 final assessment or revised final assessment shall be
27 accompanied by a certification which recites facts that are
28 sufficient to show that the Department complied with the
29 jurisdictional requirements of the Law in arriving at its
30 final assessment or its revised final assessment and that the
31 taxpayer had his or her opportunity for an administrative
32 hearing and for judicial review, whether he availed himself
33 or herself of either or both of these opportunities or not.
34 If the court is satisfied that the Department complied with
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1 the jurisdictional requirements of the Law in arriving at its
2 final assessment or its revised final assessment and that the
3 taxpayer had his or her opportunity for an administrative
4 hearing and for judicial review, whether he or she availed
5 himself or herself of either or both of these opportunities
6 or not, the court shall enter judgment in favor of the
7 Department and against the taxpayer for the amount shown to
8 be due by the final assessment or the revised final
9 assessment, and such judgment shall be filed of record in the
10 court. Such judgment shall bear the rate of interest set in
11 the Uniform Penalty and Interest Act, but otherwise shall
12 have the same effect as other judgments. The judgment may be
13 enforced, and all laws applicable to sales for the
14 enforcement of a judgment shall be applicable to sales made
15 under such judgments. The Department shall file the certified
16 copy of its assessment, as herein provided, with the Circuit
17 Court within 2 years after such assessment becomes final
18 except when the taxpayer consents in writing to an extension
19 of such filing period.
20 If, when the cause of action for a proceeding in court
21 accrues against a person, he or she is out of the State, the
22 action may be commenced within the times herein limited,
23 after his or her coming into or return to the State; and if,
24 after the cause of action accrues, he or she departs from and
25 remains out of the State, the time of his or her absence is
26 no part of the time limited for the commencement of the
27 action; but the foregoing provisions concerning absence from
28 the State shall not apply to any case in which, at the time
29 the cause of action accrues, the party against whom the cause
30 of action accrues is not a resident of this State. The time
31 within which a court action is to be commenced by the
32 Department hereunder shall not run while the taxpayer is a
33 debtor in any proceeding under the Federal Bankruptcy Act nor
34 thereafter until 90 days after the Department is notified by
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1 such debtor of being discharged in bankruptcy.
2 No claim shall be filed against the estate of any
3 deceased person or a person under legal disability for any
4 tax or penalty or part of either except in the manner
5 prescribed and within the time limited by the Probate Act of
6 1975, as amended.
7 The remedies provided for herein shall not be exclusive,
8 but all remedies available to creditors for the collection of
9 debts shall be available for the collection of any tax or
10 penalty due hereunder.
11 The collection of tax or penalty by any means provided
12 for herein shall not be a bar to any prosecution under this
13 Act.
14 The certificate of the Director of the Department to the
15 effect that a tax or amount required to be paid by this Act
16 has not been paid, that a return has not been filed, or that
17 information has not been supplied pursuant to the provisions
18 of this Act, shall be prima facie evidence thereof.
19 All of the provisions of Sections 5a, 5b, 5c, 5d, 5e, 5f,
20 5g, 5i and 5j of the Retailers' Occupation Tax Act, which are
21 not inconsistent with this Act, and Section 3-7 of the
22 Uniform Penalty and Interest Act shall apply, as far as
23 practicable, to the subject matter of this Act to the same
24 extent as if such provisions were included herein. References
25 in such incorporated Sections of the "Retailers' Occupation
26 Tax Act" to retailers, to sellers or to persons engaged in
27 the business of selling tangible personal property shall mean
28 distributors when used in this Act.
29 (Source: P.A. 87-205.)
30 (35 ILCS 130/9b) (from Ch. 120, par. 453.9b)
31 Sec. 9b. In case any person who is required to file a
32 return under this Act fails to file such return, the
33 Department shall determine the amount of tax due from him
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1 according to its best judgment and information, which amount
2 so fixed by the Department shall be prima facie correct and
3 shall be prima facie evidence of the correctness of the
4 amount of tax due, as shown in such determination. Proof of
5 such determination by the Department may be made at any
6 hearing before the Department or in any legal proceeding by a
7 reproduced copy of the Department's record relating thereto
8 in the name of the Department under the certificate of the
9 Director of Revenue. Such reproduced copy shall, without
10 further proof, be admitted into evidence before the
11 Department or in any legal proceeding and shall be prima
12 facie proof of the correctness of the amount of tax due, as
13 shown therein. The Department shall issue such person a
14 notice of tax liability for the amount of tax claimed by the
15 Department to be due, together with a penalty in an amount
16 determined in accordance with Sections 3-3, 3-5 and 3-6 of
17 the Uniform Penalty and Interest Act. If such person or the
18 legal representative of such person, within 20 days after
19 such notice, files a protest to such notice of tax liability
20 and requests a hearing thereon, the Department shall give
21 notice to such person or the legal representative of such
22 person of the time and place fixed for such hearing and shall
23 hold a hearing in conformity with the provisions of this Act,
24 and pursuant thereto shall issue a final assessment to such
25 person or to the legal representative of such person for the
26 amount found to be due as a result of such hearing. If a
27 protest to the notice of tax liability and a request for a
28 hearing thereon is not filed within 20 days after such notice
29 of tax liability, such notice of tax liability shall become
30 final without the necessity of a final assessment being
31 issued and shall be deemed to be a final assessment.
32 (Source: P.A. 87-205.)
33 Section 40. The Cigarette Use Tax Act is amended by
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1 changing Sections 13 and 13a as follows:
2 (35 ILCS 135/13) (from Ch. 120, par. 453.43)
3 Sec. 13. As soon as practicable after any return is
4 filed, the Department shall examine such return and shall
5 correct such return according to its best judgment and
6 information, which return so corrected by the Department
7 shall be prima facie correct and shall be prima facie
8 evidence of the correctness of the amount of tax due, as
9 shown therein. Proof of such correction by the Department may
10 be made at any hearing before the Department or in any legal
11 proceeding by a reproduced copy of the Department's record
12 relating thereto in the name of the Department under the
13 certificate of the Director of Revenue. Such reproduced copy
14 shall, without further proof, be admitted into evidence
15 before the Department or in any legal proceeding and shall be
16 prima facie proof of the correctness of the amount of tax
17 due, as shown therein. If the tax as fixed by the Department
18 is greater than the amount of the tax due under the return as
19 filed, the Department shall issue the person filing such
20 return a notice of tax liability for the amount of tax
21 claimed by the Department to be due, together with a penalty
22 in an amount determined in accordance with Sections 3-3, 3-5
23 and 3-6 of the Uniform Penalty and Interest Act. If, in
24 administering the provisions of this Act, comparison of a
25 return or returns of a distributor with the books, records
26 and inventories of such distributor discloses a deficiency
27 which cannot be allocated by the Department to a particular
28 month or months, the Department shall issue the distributor a
29 notice of tax liability for the amount of tax claimed by the
30 Department to be due for a given period, but without any
31 obligation upon the Department to allocate such deficiency to
32 any particular month or months, together with a penalty in an
33 amount determined in accordance with Sections 3-3, 3-5 and
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1 3-6 of the Uniform Penalty and Interest Act, under which
2 circumstances the aforesaid notice of tax liability shall be
3 prima facie correct and shall be prima facie evidence of the
4 correctness of the amount of tax due, as shown therein; and
5 proof of such correctness may be made in accordance with, and
6 the admissibility of a reproduced copy of such notice of tax
7 liability shall be governed by, all the provisions of this
8 Act applicable to corrected returns.
9 If any person filing any return dies or becomes a person
10 under legal disability at any time before the Department
11 issues its notice of tax liability, such notice shall be
12 issued to the administrator, executor or other legal
13 representative, as such, of such person.
14 If within 20 days after such notice of tax liability, the
15 person to whom such notice is issued or his legal
16 representative files a protest to such notice of tax
17 liability and requests a hearing thereon, the Department
18 shall give notice to such person or legal representative of
19 the time and place fixed for such hearing, and shall hold a
20 hearing in conformity with the provisions of this Act, and
21 pursuant thereto shall issue a final assessment to such
22 person or legal representative for the amount found to be due
23 as a result of such hearing. If a protest to the notice of
24 tax liability and a request for a hearing thereon is not
25 filed within 20 days after such notice of tax liability, such
26 notice of tax liability shall become final without the
27 necessity of a final assessment being issued and shall be
28 deemed to be a final assessment.
29 (Source: P.A. 87-205.)
30 (35 ILCS 135/13a) (from Ch. 120, par. 453.43a)
31 Sec. 13a. In case any person who is required to file a
32 return under this Act fails to file such return, the
33 Department shall determine the amount of tax due from him
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1 according to its best judgment and information, which amount
2 so fixed by the Department shall be prima facie correct and
3 shall be prima facie evidence of the correctness of the
4 amount of tax due, as shown in such determination. Proof of
5 such determination by the Department may be made at any
6 hearing before the Department or in any legal proceeding by a
7 reproduced copy of the Department's record relating thereto
8 in the name of the Department under the certificate of the
9 Director of Revenue. Such reproduced copy shall, without
10 further proof, be admitted into evidence before the
11 Department or in any legal proceeding and shall be prima
12 facie proof of the correctness of the amount of tax due, as
13 shown therein. The Department shall issue such person a
14 notice of tax liability for the amount of tax claimed by the
15 Department to be due, together with a penalty in an amount
16 determined in accordance with Sections 3-3, 3-5 and 3-6 of
17 the Uniform Penalty and Interest Act. If such person or the
18 legal representative of such person, within 20 days after
19 such notice, files a protest to such notice of tax liability
20 and requests a hearing thereon, the Department shall give
21 notice to such person or the legal representative of such
22 person of the time and place fixed for such hearing, and
23 shall hold a hearing in conformity with the provisions of
24 this Act, and pursuant thereto shall issue a final assessment
25 to such person or to the legal representative of such person
26 for the amount found to be due as a result of such hearing.
27 If a protest to the notice of tax liability and a request for
28 a hearing thereon is not filed within 20 days after such
29 notice of tax liability, such notice of tax liability shall
30 become final without the necessity of a final assessment
31 being issued and shall be deemed to be a final assessment.
32 (Source: P.A. 87-205.)
33 Section 43. The Hotel Operators' Occupation Tax Act is
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1 amended by changing Section 6 as follows:
2 (35 ILCS 145/6) (from Ch. 120, par. 481b.36)
3 Sec. 6. Except as provided hereinafter in this Section,
4 on or before the last day of each calendar month, every
5 person engaged in the business of renting, leasing or letting
6 rooms in a hotel in this State during the preceding calendar
7 month shall file a return with the Department, stating:
8 1. The name of the operator;
9 2. His residence address and the address of his
10 principal place of business and the address of the
11 principal place of business (if that is a different
12 address) from which he engages in the business of
13 renting, leasing or letting rooms in a hotel in this
14 State;
15 3. Total amount of rental receipts received by him
16 during the preceding calendar month from renting, leasing
17 or letting rooms during such preceding calendar month;
18 4. Total amount of rental receipts received by him
19 during the preceding calendar month from renting, leasing
20 or letting rooms to permanent residents during such
21 preceding calendar month;
22 5. Total amount of other exclusions from gross
23 rental receipts allowed by this Act;
24 6. Gross rental receipts which were received by him
25 during the preceding calendar month and upon the basis of
26 which the tax is imposed;
27 7. The amount of tax due;
28 8. Such other reasonable information as the
29 Department may require.
30 If the operator's average monthly tax liability to the
31 Department does not exceed $200, the Department may authorize
32 his returns to be filed on a quarter annual basis, with the
33 return for January, February and March of a given year being
-49- LRB9104699PTpk
1 due by April 30 of such year; with the return for April, May
2 and June of a given year being due by July 31 of such year;
3 with the return for July, August and September of a given
4 year being due by October 31 of such year, and with the
5 return for October, November and December of a given year
6 being due by January 31 of the following year.
7 If the operator's average monthly tax liability to the
8 Department does not exceed $50, the Department may authorize
9 his returns to be filed on an annual basis, with the return
10 for a given year being due by January 31 of the following
11 year.
12 Such quarter annual and annual returns, as to form and
13 substance, shall be subject to the same requirements as
14 monthly returns.
15 Notwithstanding any other provision in this Act
16 concerning the time within which an operator may file his
17 return, in the case of any operator who ceases to engage in a
18 kind of business which makes him responsible for filing
19 returns under this Act, such operator shall file a final
20 return under this Act with the Department not more than 1
21 month after discontinuing such business.
22 Where the same person has more than 1 business registered
23 with the Department under separate registrations under this
24 Act, such person shall not file each return that is due as a
25 single return covering all such registered businesses, but
26 shall file separate returns for each such registered
27 business.
28 In his return, the operator shall determine the value of
29 any consideration other than money received by him in
30 connection with the renting, leasing or letting of rooms in
31 the course of his business and he shall include such value in
32 his return. Such determination shall be subject to review
33 and revision by the Department in the manner hereinafter
34 provided for the correction of returns.
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1 Where the operator is a corporation, the return filed on
2 behalf of such corporation shall be signed by the president,
3 vice-president, secretary or treasurer or by the properly
4 accredited agent of such corporation.
5 The person filing the return herein provided for shall,
6 at the time of filing such return, pay to the Department the
7 amount of tax herein imposed. The operator filing the return
8 under this Section shall, at the time of filing such return,
9 pay to the Department the amount of tax imposed by this Act
10 less a discount of 2.1% or $25 per calendar year, whichever
11 is greater, which is allowed to reimburse the operator for
12 the expenses incurred in keeping records, preparing and
13 filing returns, remitting the tax and supplying data to the
14 Department on request.
15 There shall be deposited in the Build Illinois Fund in
16 the State Treasury for each State fiscal year 40% of the
17 amount of total net proceeds from the tax imposed by
18 subsection (a) of Section 3. Of the remaining 60%, $5,000,000
19 shall be deposited in the Illinois Sports Facilities Fund and
20 credited to the Subsidy Account each fiscal year by making
21 monthly deposits in the amount of 1/8 of $5,000,000 plus
22 cumulative deficiencies in such deposits for prior months,
23 and an additional $8,000,000 shall be deposited in the
24 Illinois Sports Facilities Fund and credited to the Advance
25 Account each fiscal year by making monthly deposits in the
26 amount of 1/8 of $8,000,000 plus any cumulative deficiencies
27 in such deposits for prior months. (The deposits of the
28 additional $8,000,000 during each fiscal year shall be
29 treated as advances of funds to the Illinois Sports
30 Facilities Authority for its corporate purposes to the extent
31 paid to the Authority or its trustee and shall be repaid into
32 the General Revenue Fund in the State Treasury by the State
33 Treasurer on behalf of the Authority solely from collections
34 of the tax imposed by the Authority pursuant to Section 19 of
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1 the Illinois Sports Facilities Act, as amended.)
2 Of the remaining 60% of the amount of total net proceeds
3 from the tax imposed by subsection (a) of Section 3 after all
4 required deposits in the Illinois Sports Facilities Fund, the
5 amount equal to 8% of the net revenue realized from the Hotel
6 Operators' Occupation Tax Act plus an amount equal to 8% of
7 the net revenue realized from any tax imposed under Section
8 4.05 of the Chicago World's Fair-1992 Authority during the
9 preceding month shall be deposited in the Local Tourism Fund
10 each month for purposes authorized by Section 46.6a of the
11 Civil Administrative Code of Illinois in the Local Tourism
12 Fund. "Net revenue realized for a month" means the revenue
13 collected by the State under that Act during the previous
14 month less the amount paid out during that same month as
15 refunds to taxpayers for overpayment of liability under that
16 Act.
17 After making all these deposits, all other proceeds of
18 the tax imposed under subsection (a) of Section 3 shall be
19 deposited in the General Revenue Fund in the State Treasury.
20 All moneys received by the Department from the additional tax
21 imposed under subsection (b) of Section 3 shall be deposited
22 into the Build Illinois Fund in the State Treasury.
23 The Department may, upon separate written notice to a
24 taxpayer, require the taxpayer to prepare and file with the
25 Department on a form prescribed by the Department within not
26 less than 60 days after receipt of the notice an annual
27 information return for the tax year specified in the notice.
28 Such annual return to the Department shall include a
29 statement of gross receipts as shown by the operator's last
30 State income tax return. If the total receipts of the
31 business as reported in the State income tax return do not
32 agree with the gross receipts reported to the Department for
33 the same period, the operator shall attach to his annual
34 information return a schedule showing a reconciliation of the
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1 2 amounts and the reasons for the difference. The operator's
2 annual information return to the Department shall also
3 disclose pay roll information of the operator's business
4 during the year covered by such return and any additional
5 reasonable information which the Department deems would be
6 helpful in determining the accuracy of the monthly, quarterly
7 or annual tax returns by such operator as hereinbefore
8 provided for in this Section.
9 Notwithstanding any provision to the contrary, in the
10 case of a dispute between a taxpayer and the Department under
11 this Act, the taxpayer's position shall be presumed to be the
12 correct one and the burden of proof shall be on the
13 Department to prove otherwise.
14 If the annual information return required by this Section
15 is not filed when and as required the taxpayer shall be
16 liable for a penalty in an amount determined in accordance
17 with Section 3-4 of the Uniform Penalty and Interest Act
18 until such return is filed as required, the penalty to be
19 assessed and collected in the same manner as any other
20 penalty provided for in this Act.
21 The chief executive officer, proprietor, owner or highest
22 ranking manager shall sign the annual return to certify the
23 accuracy of the information contained therein. Any person
24 who willfully signs the annual return containing false or
25 inaccurate information shall be guilty of perjury and
26 punished accordingly. The annual return form prescribed by
27 the Department shall include a warning that the person
28 signing the return may be liable for perjury.
29 The foregoing portion of this Section concerning the
30 filing of an annual information return shall not apply to an
31 operator who is not required to file an income tax return
32 with the United States Government.
33 (Source: P.A. 90-26, eff. 7-1-97.)
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1 Section 45. The Motor Fuel Tax Act is amended by
2 changing Sections 5, 5a, and 5b as follows:
3 (35 ILCS 505/5) (from Ch. 120, par. 421)
4 Sec. 5. Except as hereinafter provided, a person holding
5 a valid unrevoked license to act as a distributor of motor
6 fuel shall, between the 1st and 20th days of each calendar
7 month, make return to the Department, showing an itemized
8 statement of the number of invoiced gallons of motor fuel of
9 the types specified in this Section which were purchased,
10 acquired or received during the preceding calendar month; the
11 amount of such motor fuel produced, refined, compounded,
12 manufactured, blended, sold, distributed, and used by the
13 licensed distributor during the preceding calendar month; the
14 amount of such motor fuel lost or destroyed during the
15 preceding calendar month; and the amount of such motor fuel
16 on hand at the close of business for such month. If a
17 distributor's only activities with respect to motor fuel are
18 either: (1) production of alcohol in quantities of less than
19 10,000 proof gallons per year or (2) blending alcohol in
20 quantities of less than 10,000 proof gallons per year which
21 such distributor has produced, he shall file returns on an
22 annual basis with the return for a given year being due by
23 January 20 of the following year. Distributors whose total
24 production of alcohol (whether blended or not) exceeds 10,000
25 proof gallons per year, based on production during the
26 preceding (calendar) year or as reasonably projected by the
27 Department if one calendar year's record of production cannot
28 be established, shall file returns between the 1st and 20th
29 days of each calendar month as hereinabove provided.
30 The types of motor fuel referred to in the preceding
31 paragraph are: (A) All products commonly or commercially
32 known or sold as gasoline (including casing-head and
33 absorption or natural gasoline), gasohol, motor benzol or
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1 motor benzene regardless of their classification or uses; and
2 (B) all combustible gases which exist in a gaseous state at
3 60 degrees Fahrenheit and at 14.7 pounds per square inch
4 absolute including, but not limited to, liquefied petroleum
5 gases used for highway purposes; and (C) special fuel. Only
6 those quantities of combustible gases (example (B) above)
7 which are used or sold by the distributor to be used to
8 propel motor vehicles on the public highways, or which are
9 delivered into the bulk storage facilities of a bulk user, or
10 which are delivered into a storage tank that is located at a
11 facility that has withdrawal facilities which are readily
12 accessible to and are capable of dispensing combustible gases
13 into the fuel supply tanks of motor vehicles, shall be
14 subject to return. For the purposes of this Act, liquefied
15 petroleum gases shall mean and include any material having a
16 vapor pressure not exceeding that allowed for commercial
17 propane composed predominantly of the following hydrocarbons,
18 either by themselves or as mixtures: Propane, Propylene,
19 Butane (normal butane or iso-butane) and Butylene (including
20 isomers).
21 In case of a sale of special fuel to someone other than a
22 licensed distributor, licensed supplier or a licensed bulk
23 user with a valid permit, for a use other than in motor
24 vehicles, the distributor shall show in his return the amount
25 of invoiced gallons sold and the name and address of the
26 purchaser.
27 In case of a tax-free sale, as provided in Section 6, of
28 motor fuel which the distributor is required by this Section
29 to include in his return to the Department, the distributor
30 in his return shall show: (1) If the sale is made to another
31 licensed distributor the amount sold and the name, address
32 and license number of the purchasing distributor; (2) if the
33 sale is made to a person where delivery is made outside of
34 this State the name and address of such purchaser and the
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1 point of delivery together with the date and amount
2 delivered; (3) if the sale is made to the Federal Government
3 or its instrumentalities the amount sold, as evidenced by
4 official forms of exemption certificates properly executed
5 and furnished by the Federal Government or its
6 instrumentalities; (4) if the sale is made to a municipal
7 corporation owning and operating a local transportation
8 system for public service in this State the name and address
9 of such purchaser, and the amount sold, as evidenced by
10 official forms of exemption certificates properly executed
11 and furnished by such purchaser; (5) if the sale is made to a
12 privately owned public utility owning and operating 2-axle
13 vehicles designed and used for transporting more than 7
14 passengers, which vehicles are used as common carriers in
15 general transportation of passengers, are not devoted to any
16 specialized purpose and are operated entirely within the
17 territorial limits of a single municipality or of any group
18 of contiguous municipalities or in a close radius thereof,
19 and the operations of which are subject to the regulations of
20 the Illinois Commerce Commission, then the name and address
21 of such purchaser and the amount sold as evidenced by
22 official forms of exemption certificates properly executed
23 and furnished by the purchaser; (6) if the product sold is
24 special fuel and if the sale is made to a licensed supplier
25 under conditions which qualify the sale for tax exemption
26 under Section 6 of this Act, the amount sold and the name,
27 address and license number of the purchaser; (7) if a sale
28 of special fuel is made to someone other than a licensed
29 distributor, licensed supplier, or a licensed bulk user with
30 a permit, for a use other than in motor vehicles, by making a
31 specific notation thereof on the invoice or sales slip
32 covering such sales and obtaining such supporting
33 documentation as may be required by the Department; and (8)
34 if a sale of special fuel is made to a licensed bulk user
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1 with a valid unrevoked permit to purchase special fuel tax
2 exempt.
3 A person whose license to act as a distributor of motor
4 fuel has been revoked shall make a return to the Department
5 covering the period from the date of the last return to the
6 date of the revocation of the license, which return shall be
7 delivered to the Department not later than 10 days from the
8 date of the revocation or termination of the license of such
9 distributor; the return shall in all other respects be
10 subject to the same provisions and conditions as returns by
11 distributors licensed under the provisions of this Act.
12 The records, waybills and supporting documents kept by
13 railroads and other common carriers in the regular course of
14 business shall be prima facie evidence of the contents and
15 receipt of cars or tanks covered by those records, waybills
16 or supporting documents.
17 If the Department has reason to believe and does believe
18 that the amount shown on the return as received, lost or
19 destroyed is incorrect, or that an amount of motor fuel of
20 the types required by the second paragraph of this Section to
21 be reported to the Department by distributors as a receipt
22 has not been reported as a receipt, the Department shall fix
23 an amount for such receipt, loss or destruction according to
24 its best judgment and information, which amount so fixed by
25 the Department shall be prima facie correct. All returns
26 shall be made on forms prepared and furnished by the
27 Department, and shall contain such other information as the
28 Department may reasonably require. The return must be
29 accompanied by appropriate computer-generated magnetic media
30 supporting schedule data in the format required by the
31 Department, unless, as provided by rule, the Department
32 grants an exception upon petition of a taxpayer.
33 (Source: P.A. 87-149; 88-194.)
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1 (35 ILCS 505/5a) (from Ch. 120, par. 421a)
2 Sec. 5a. A person holding a valid unrevoked license to
3 act as a supplier of special fuel shall, between the 1st and
4 20th days of each calendar month, make return to the
5 Department showing an itemized statement of the number of
6 invoiced gallons of special fuel purchased or sold during the
7 preceding calendar month and used by the licensed supplier
8 during the preceding calendar month.
9 A person whose license to act as a supplier of special
10 fuel has been revoked shall make a return to the Department
11 covering the period from the date of the last return to the
12 date of the revocation of the license, which return shall be
13 delivered to the Department not later than 10 days from the
14 date of the revocation or termination of the license of such
15 supplier. The return shall in all other respects be subject
16 to the same provisions and conditions as returns by suppliers
17 licensed under this Act.
18 The records, waybills and supporting documents kept by
19 railroads and other common carriers in the regular course of
20 business shall be prima facie evidence of the contents and
21 receipt of cars or tanks covered by those records, waybills
22 or supporting documents.
23 If the Department has reason to believe and does believe
24 that the amount shown on the return as purchased or sold or
25 used is incorrect, or that an amount of special fuel of the
26 type required by the 1st paragraph of this Section to be
27 reported to the Department by suppliers as a purchase, sale
28 or use has not been reported as a purchase, sale or use, the
29 Department shall fix an amount for such purchase, sale or use
30 according to its best judgment and information, which amount
31 so fixed by the Department shall be prima facie correct.
32 In case of a sale of special fuel to someone other than a
33 licensed distributor, licensed supplier, or licensed bulk
34 user with a valid permit, for a use other than in motor
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1 vehicles, the supplier shall show in his return the amount of
2 invoiced gallons sold and the name and address of the
3 purchaser.
4 All returns shall be made on forms prepared and furnished
5 by the Department and shall contain such other information as
6 the Department may reasonably require. The return must be
7 accompanied by appropriate computer-generated magnetic media
8 supporting schedule data in the format required by the
9 Department, unless, as provided by rule, the Department
10 grants an exception upon petition of a taxpayer.
11 In case of a tax-free sale, as provided in Section 6a, of
12 special fuel which the supplier is required by this Section
13 to include in his return to the Department, the supplier in
14 his return shall show: (1) If the sale of special fuel is
15 made to the Federal Government or its instrumentalities, the
16 amount sold as evidenced by official forms of exemption
17 certificates properly executed and furnished by the
18 Government or its instrumentalities; (2) if the sale of
19 special fuel is made to a municipal corporation owning and
20 operating a local transportation system for public service in
21 this State, the name and address of such purchaser and the
22 amount sold, as evidenced by official forms of exemption
23 certificates properly executed and furnished by such
24 purchaser; (3) if the sale of special fuel is made to a
25 privately owned public utility owning and operating 2-axle
26 vehicles designed and used for transporting more than 7
27 passengers, which vehicles are used as common carriers in
28 general transportation of passengers, are not devoted to any
29 specialized purpose and are operated entirely within the
30 territorial limits of a single municipality or of any group
31 of contiguous municipalities or in a close radius thereof,
32 and the operations of which are subject to the regulations of
33 the Illinois Commerce Commission, then the name and address
34 of such purchaser and the amount sold, as evidenced by
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1 official forms of exemption certificates properly executed
2 and furnished by such purchaser; (4) if the product sold is
3 special fuel and if the sale is made to a licensed supplier
4 or to a licensed distributor under conditions which qualify
5 the sale for tax exemption under Section 6a of this Act, the
6 amount sold and the name, address and license number of such
7 purchaser; (5) if a sale of special fuel is made to a person
8 where delivery is made outside of this State, the name and
9 address of such purchaser and the point of delivery together
10 with the date and amount of invoiced gallons delivered; (6)
11 if a sale of special fuel is made to someone other than a
12 licensed distributor, licensed supplier, or a licensed bulk
13 user with a permit, for a use other than in motor vehicles,
14 by making a specific notation thereof on the invoice or sales
15 slip covering that sale and obtaining such supporting
16 documentation as may be required by the Department; and (7)
17 if a sale of special fuel is made to a licensed bulk user
18 with a valid unrevoked permit to purchase special fuel tax
19 exempt.
20 (Source: P.A. 87-149; 88-194.)
21 (35 ILCS 505/5b) (from Ch. 120, par. 421b)
22 Sec. 5b. A person holding a valid unrevoked license to
23 act as a bulk user of special fuel shall make an annual
24 return to the Department, showing an itemized statement of
25 the number of invoiced gallons of special fuel purchased,
26 acquired or received during the preceding calendar year. Such
27 return for a calendar year shall be due the 15th day of the
28 fourth month following the end of the calendar year. Failure
29 to file the return required by this Section shall result in a
30 penalty of $75.
31 A person whose license to act as a bulk user of special
32 fuel has been revoked shall make a return to the Department
33 covering the period from the date of the last return to the
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1 date of the revocation of the license, which return shall be
2 delivered to the Department not later than 10 days from the
3 date of the revocation or termination of the license of such
4 bulk user. Said return shall in all other respects be subject
5 to the same provisions and conditions as returns by bulk
6 users licensed under the provisions of this Act.
7 The records, waybills and supporting documents kept by
8 railroads and other common carriers in the regular course of
9 business shall be prima facie evidence of the contents and
10 receipt of cars or tanks covered by such records, waybills or
11 supporting documents.
12 If the Department has reason to believe and does believe
13 that the amount shown on the return as received is incorrect,
14 or that an amount of special fuel required to be reported to
15 the Department by bulk users as a receipt, has not been
16 reported as a receipt, the Department shall fix an amount for
17 such receipt according to its best judgment and information,
18 which amount so fixed by the Department shall be prima facie
19 correct.
20 All returns shall be made on forms prepared and furnished
21 by the Department and shall contain such other information as
22 the Department may reasonably require.
23 (Source: P.A. 83-1428.)
24 Section 50. The Coin-Operated Amusement Device and
25 Redemption Machine Tax Act is amended by changing Section 2
26 as follows:
27 (35 ILCS 510/2) (from Ch. 120, par. 481b.2)
28 Sec. 2. (a) Any person, firm, limited liability company,
29 or corporation which displays any device described in Section
30 1, to be played or operated by the public at any place owned
31 or leased by any such person, firm, limited liability
32 company, or corporation, shall before he displays such
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1 device, file in the Office of the Department of Revenue an
2 application for a license for such device properly sworn to,
3 setting forth his name and address, with a brief description
4 of the device to be displayed and the premises where such
5 device will be located, together with such other relevant
6 data as the Department of Revenue may require. Such
7 application for a license shall be accompanied by the
8 required license tax. Such license tax shall be paid to the
9 Department of Revenue of the State of Illinois and all monies
10 received by the Department of Revenue under this Act shall be
11 paid into the General Revenue Fund in the State Treasury. The
12 Department of Revenue shall supply and deliver to the person,
13 firm, limited liability company, or corporation which
14 displays any device described in Section 1, charges prepaid
15 and without additional cost, one license tag for each such
16 device on which an application is made, stating the year for
17 which issued. Such license tag shall thereupon be securely
18 affixed to such device.
19 (b) If an amount of tax, penalty, or interest has been
20 paid in error to the Department, the taxpayer may file a
21 claim for credit or refund with the Department. If it is
22 determined that the Department must issue a credit or refund
23 under this Act, the Department may first apply the amount of
24 the credit or refund due against any amount of tax, penalty,
25 or interest due under this Act from the taxpayer entitled to
26 the credit or refund. If proceedings are pending to
27 determine if any tax, penalty, or interest is due under this
28 Act from the taxpayer, the Department may withhold issuance
29 of the credit or refund pending the final disposition of
30 those proceedings and may apply that credit or refund against
31 any amount determined to be due to the Department as a result
32 of those proceedings. The balance, if any, of the credit or
33 refund shall be paid to the taxpayer.
34 If no tax, penalty, or interest is due and no proceedings
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1 are pending to determine whether the taxpayer is indebted to
2 the Department for tax, penalty, or interest, the credit
3 memorandum or refund shall be issued to the taxpayer; or, the
4 credit memorandum may be assigned by the taxpayer, subject to
5 reasonable rules of the Department, to any other person who
6 is subject to this Act, and the amount of the credit
7 memorandum by the Department against any tax, penalty, or
8 interest due or to become due under this Act from the
9 assignee.
10 For any claim for credit or refund filed with the
11 Department on or after each July 1, no amount erroneously
12 paid more than 3 years before that July 1, shall be credited
13 or refunded.
14 A claim for credit or refund shall be filed on a form
15 provided by the Department. As soon as practicable after any
16 claim for credit or refund is filed, the Department shall
17 determine the amount of credit or refund to which the
18 claimant is entitled and shall notify the claimant of that
19 determination.
20 A claim for credit or refund shall be filed with the
21 Department on the date it is received by the Department.
22 Upon receipt of any claim for credit or refund filed under
23 this Section, an officer or employee of the Department,
24 authorized by the Director of Revenue to acknowledge receipt
25 of such claims on behalf of the Department, shall deliver or
26 mail to the claimant or his duly authorized agent, a written
27 receipt, acknowledging that the claim has been filed with the
28 Department, describing the claim in sufficient detail to
29 identify it, and stating the date on which the claim was
30 received by the Department. The written receipt shall be
31 prima facie evidence that the Department received the claim
32 described in the receipt and shall be prima facie evidence of
33 the date when such claim was received by the Department. In
34 the absence of a written receipt, the records of the
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1 Department as to whether a claim was received, or when the
2 claim was received by the Department, shall be deemed to be
3 prima facie correct in the event of any dispute between the
4 claimant, or his legal representative, and the Department on
5 these issues.
6 Any credit or refund that is allowed under this Article
7 shall bear interest at the rate and in the manner specified
8 in the Uniform Penalty and Interest Act.
9 If the Department determines that the claimant is
10 entitled to a refund, the refund shall be made only from an
11 appropriation to the Department for that purpose. If the
12 amount appropriated is insufficient to pay claimants electing
13 to receive a cash refund, the Department by rule or
14 regulation shall first provide for the payment of refunds in
15 hardship cases as defined by the Department.
16 (Source: P.A. 88-194; 88-480; 88-670, eff. 12-2-94.)
17 Section 55. The Cannabis and Controlled Substances Tax
18 Act is amended by changing Section 16 as follows:
19 (35 ILCS 520/16) (from Ch. 120, par. 2166)
20 Sec. 16. All assessments are Jeopardy Assessments -
21 lien.
22 (a) Assessment. An assessment for a dealer not
23 possessing valid stamps or other official indicia showing
24 that the tax has been paid shall be considered a jeopardy
25 assessment or collection, as provided by Section 1102 of the
26 Illinois Income Tax Act. The Department shall determine and
27 assess a tax and applicable penalties and interest according
28 to the best judgment and information available to the
29 Department, which amount so fixed by the Department shall be
30 prima facie correct and shall be prima facie evidence of the
31 correctness of the amount of tax due, as shown in such
32 determination. When, according to the best judgment and
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1 information available to the Department with regard to all
2 real and personal property and rights to property of the
3 dealer, there is no reasonable expectation of collection of
4 the amount of tax and penalty to be assessed, the Department
5 may issue an assessment under this Section for the amount of
6 tax without penalty.
7 (b) Filing of Lien. Upon issuance of a jeopardy
8 assessment as provided by subsection (a) of this Section, the
9 Department may file a notice of jeopardy assessment lien in
10 the office of the recorder of the county in which any
11 property of the taxpayer may be located and shall notify the
12 taxpayer of such filing.
13 (c) Protest. If the taxpayer believes that he does not
14 owe some or all of the amount for which the jeopardy
15 assessment lien against him has been filed, he may protest
16 within 20 days after being notified by the Department of the
17 filing of such jeopardy assessment lien and request a
18 hearing, whereupon the Department shall hold a hearing in
19 conformity with the provisions of Section 908 of the Illinois
20 Income Tax Act and, pursuant thereto, shall notify the
21 taxpayer of its decision as to whether or not such jeopardy
22 assessment lien will be released.
23 After the expiration of the period within which the
24 person assessed may file an action for judicial review under
25 the Administrative Review Law without such action being
26 filed, a certified copy of the final assessment or revised
27 final assessment of the Department may be filed with the
28 Circuit Court of the county in which the dealer resides, or
29 of Cook County in the case of a dealer who does not reside in
30 this State, or in the county where the violation of this Act
31 took place. The certified copy of the final assessment or
32 revised final assessment shall be accompanied by a
33 certification which recites facts that are sufficient to show
34 that the Department complied with the jurisdictional
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1 requirements of the Act in arriving at its final assessment
2 or its revised final assessment and that the dealer had this
3 opportunity for an administrative hearing and for judicial
4 review, whether he availed himself or herself of either or
5 both of these opportunities or not. If the court is
6 satisfied that the Department complied with the
7 jurisdictional requirements of the Act in arriving at its
8 final assessment or its revised final assessment and that the
9 taxpayer had his opportunity for an administrative hearing
10 and for judicial review, whether he availed himself of either
11 or both of these opportunities or not, the court shall render
12 judgment in favor of the Department and against the taxpayer
13 for the amount shown to be due by the final assessment or the
14 revised final assessment, plus any interest which may be due,
15 and such judgment shall be entered in the judgment docket of
16 the court. Such judgment shall bear the same rate of
17 interest and shall have the same effect as other judgments.
18 The judgment may be enforced, and all laws applicable to
19 sales for the enforcement of a judgment shall be applicable
20 to sales made under such judgments. The Department shall
21 file the certified copy of its assessment, as herein
22 provided, with the Circuit Court within 2 years after such
23 assessment becomes final except when the taxpayer consents in
24 writing to an extension of such filing period, and except
25 that the time limitation period on the Department's right to
26 file the certified copy of its assessment with the Circuit
27 Court shall not run during any period of time in which the
28 order of any court has the effect of enjoining or restraining
29 the Department from filing such certified copy of its
30 assessment with the Circuit Court.
31 If, when the cause of action for a proceeding in court
32 accrues against a person, he or she is out of the State, the
33 action may be commenced within the times herein limited,
34 after his or her coming into or returning to the State; and
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1 if, after the cause of action accrues, he or she departs from
2 and remains out of the State, the time of his or her absence
3 from the State, the time of his or her absence is no part of
4 the time limited for the commencement of the action; but the
5 foregoing provisions concerning absence from the State shall
6 not apply to any case in which, at the time the cause of
7 action accrues, the party against whom the cause of action
8 accrues is not a resident of this State. The time within
9 which a court action is to be commenced by the Department
10 hereunder shall not run from the date the taxpayer files a
11 petition in bankruptcy under the Federal Bankruptcy Act until
12 30 days after notice of termination or expiration of the
13 automatic stay imposed by the Federal Bankruptcy Act.
14 No claim shall be filed against the estate of any
15 deceased person or any person under legal disability for any
16 tax or penalty or part of either, or interest, except in the
17 manner prescribed and within the time limited by the Probate
18 Act of 1975, as amended.
19 The collection of tax or penalty or interest by any means
20 provided for herein shall not be a bar to any prosecution
21 under this Act.
22 In addition to any penalty provided for in this Act, any
23 amount of tax which is not paid when due shall bear interest
24 at the rate determined in accordance with the Uniform Penalty
25 and Interest Act, per month or fraction thereof from the date
26 when such tax becomes past due until such tax is paid or a
27 judgment therefor is obtained by the Department. If the time
28 for making or completing an audit of a taxpayer's books and
29 records is extended with the taxpayer's consent, at the
30 request of and for the convenience of the Department, beyond
31 the date on which the statute of limitations upon the
32 issuance of a notice of tax liability by the Department
33 otherwise run, no interest shall accrue during the period of
34 such extension. Interest shall be collected in the same
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1 manner and as part of the tax.
2 If the Department determines that an amount of tax or
3 penalty or interest was incorrectly assessed, whether as the
4 result of a mistake of fact or an error of law, the
5 Department shall waive the amount of tax or penalty or
6 interest that accrued due to the incorrect assessment.
7 (Source: P.A. 90-655, eff. 7-30-98.)
8 Section 60. The Messages Tax Act is amended by changing
9 Section 6 as follows:
10 (35 ILCS 610/6) (from Ch. 120, par. 467.6)
11 Sec. 6. If it appears, after claim therefor filed with
12 the Department, that an amount of tax or penalty or interest
13 has been paid which was not due under this Act, whether as
14 the result of a mistake of fact or an error of law, except as
15 hereinafter provided, then the Department shall issue a
16 credit memorandum or refund to the person who made the
17 erroneous payment or, if that person has died or become a
18 person under legal disability, to his or her legal
19 representative, as such.
20 If it is determined that the Department should issue a
21 credit or refund under this Act, the Department may first
22 apply the amount thereof against any amount of tax or penalty
23 or interest due hereunder from the person entitled to such
24 credit or refund. For this purpose, if proceedings are
25 pending to determine whether or not any tax or penalty or
26 interest is due under this Act from such person, the
27 Department may withhold issuance of the credit or refund
28 pending the final disposition of such proceedings and may
29 apply such credit or refund against any amount found to be
30 due to the Department as a result of such proceedings. The
31 balance, if any, of the credit or refund shall be issued to
32 the person entitled thereto.
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1 If no tax or penalty or interest is due and no proceeding
2 is pending to determine whether such person is indebted to
3 the Department for tax or penalty or interest, the credit
4 memorandum or refund shall be issued to the claimant; or (in
5 the case of a credit memorandum) the credit memorandum may be
6 assigned and set over by the lawful holder thereof, subject
7 to reasonable rules of the Department, to any other person
8 who is subject to this Act, and the amount thereof shall be
9 applied by the Department against any tax or penalty or
10 interest due or to become due under this Act from such
11 assignee.
12 As to any claim for credit or refund filed with the
13 Department on or after each January 1 and July 1, no amounts
14 erroneously paid more than 3 years prior to such January 1
15 and July 1, respectively, shall be credited or refunded,
16 except that if both the Department and the taxpayer have
17 agreed to an extension of time to issue a notice of tax
18 liability under this Act, the claim may be filed at any time
19 prior to the expiration of the period agreed upon.
20 Claims for credit or refund shall be filed upon forms
21 provided by the Department. As soon as practicable after any
22 claim for credit or refund is filed, the Department shall
23 examine the same and determine the amount of credit or refund
24 to which the claimant is entitled and shall notify the
25 claimant of such determination, which amount shall be prima
26 facie correct.
27 Any credit or refund that is allowed under this Act shall
28 bear interest at the rate and in the manner specified in the
29 Uniform Penalty and Interest Act.
30 In case the Department determines that the claimant is
31 entitled to a refund, such refund shall be made only from
32 such appropriation as may be available for that purpose. If
33 it appears unlikely that the amount appropriated would permit
34 everyone having a claim allowed during the period covered by
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1 such appropriation to elect to receive a cash refund, the
2 Department, by rule or regulation, shall provide for the
3 payment of refunds in hardship cases and shall define what
4 types of cases qualify as hardship cases.
5 (Source: P.A. 90-491, eff. 1-1-98.)
6 Section 65. The Gas Revenue Tax Act is amended by
7 changing Section 6 as follows:
8 (35 ILCS 615/6) (from Ch. 120, par. 467.21)
9 Sec. 6. If it appears, after claim therefor filed with
10 the Department, that an amount of tax or penalty or interest
11 has been paid which was not due under this Act, whether as
12 the result of a mistake of fact or an error of law, except as
13 hereinafter provided, then the Department shall issue a
14 credit memorandum or refund to the person who made the
15 erroneous payment or, if that person has died or become a
16 person under legal disability, to his or her legal
17 representative, as such.
18 If it is determined that the Department should issue a
19 credit or refund under this Act, the Department may first
20 apply the amount thereof against any amount of tax or penalty
21 or interest due hereunder from the person entitled to such
22 credit or refund. For this purpose, if proceedings are
23 pending to determine whether or not any tax or penalty or
24 interest is due under this Act from such person, the
25 Department may withhold issuance of the credit or refund
26 pending the final disposition of such proceedings and may
27 apply such credit or refund against any amount found to be
28 due to the Department as a result of such proceedings. The
29 balance, if any, of the credit or refund shall be issued to
30 the person entitled thereto.
31 If no tax or penalty or interest is due and no proceeding
32 is pending to determine whether such person is indebted to
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1 the Department for tax or penalty or interest, the credit
2 memorandum or refund shall be issued to the claimant; or (in
3 the case of a credit memorandum) the credit memorandum may be
4 assigned and set over by the lawful holder thereof, subject
5 to reasonable rules of the Department, to any other person
6 who is subject to this Act, and the amount thereof shall be
7 applied by the Department against any tax or penalty or
8 interest due or to become due under this Act from such
9 assignee.
10 As to any claim for credit or refund filed with the
11 Department on or after each January 1 and July 1, no amounts
12 erroneously paid more than 3 years prior to such January 1
13 and July 1, respectively, shall be credited or refunded,
14 except that if both the Department and the taxpayer have
15 agreed to an extension of time to issue a notice of tax
16 liability under this Act, the claim may be filed at any time
17 prior to the expiration of the period agreed upon.
18 Claims for credit or refund shall be filed upon forms
19 provided by the Department. As soon as practicable after any
20 claim for credit or refund is filed, the Department shall
21 examine the same and determine the amount of credit or refund
22 to which the claimant is entitled and shall notify the
23 claimant of such determination, which amount shall be prima
24 facie correct.
25 Any credit or refund that is allowed under this Act shall
26 bear interest at the rate and in the manner specified in the
27 Uniform Penalty and Interest Act.
28 In case the Department determines that the claimant is
29 entitled to a refund, such refund shall be made only from
30 such appropriation as may be available for that purpose. If
31 it appears unlikely that the amount appropriated would permit
32 everyone having a claim allowed during the period covered by
33 such appropriation to elect to receive a cash refund, the
34 Department, by rule or regulation, shall provide for the
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1 payment of refunds in hardship cases and shall define what
2 types of cases qualify as hardship cases.
3 (Source: P.A. 90-491, eff. 1-1-98.)
4 Section 70. The Public Utilities Revenue Act is amended
5 by changing Section 6 as follows:
6 (35 ILCS 620/6) (from Ch. 120, par. 473)
7 Sec. 6. If it appears, after claim therefor filed with
8 the Department, that an amount of tax or penalty or interest
9 has been paid which was not due under this Act, whether as
10 the result of a mistake of fact or an error of law, except as
11 hereinafter provided, then the Department shall issue a
12 credit memorandum or refund to the person who made the
13 erroneous payment or, if that person has died or become a
14 person under legal disability, to his or her legal
15 representative, as such.
16 If it is determined that the Department should issue a
17 credit or refund under this Act, the Department may first
18 apply the amount thereof against any amount of tax or penalty
19 or interest due hereunder from the person entitled to such
20 credit or refund. Any credit memorandum issued under the
21 Electricity Excise Tax Law may be applied against any
22 liability incurred under the tax previously imposed by
23 Section 2 of this Act. For this purpose, if proceedings are
24 pending to determine whether or not any tax or penalty or
25 interest is due under this Act from such person, the
26 Department may withhold issuance of the credit or refund
27 pending the final disposition of such proceedings and may
28 apply such credit or refund against any amount found to be
29 due to the Department as a result of such proceedings. The
30 balance, if any, of the credit or refund shall be issued to
31 the person entitled thereto.
32 If no tax or penalty or interest is due and no proceeding
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1 is pending to determine whether such person is indebted to
2 the Department for tax or penalty or interest, the credit
3 memorandum or refund shall be issued to the claimant; or (in
4 the case of a credit memorandum) the credit memorandum may be
5 assigned and set over by the lawful holder thereof, subject
6 to reasonable rules of the Department, to any other person
7 who is subject to this Act, and the amount thereof shall be
8 applied by the Department against any tax or penalty or
9 interest due or to become due under this Act from such
10 assignee.
11 As to any claim for credit or refund filed with the
12 Department on or after each January 1 and July 1, no amounts
13 erroneously paid more than 3 years prior to such January 1
14 and July 1, respectively, shall be credited or refunded,
15 except that if both the Department and the taxpayer have
16 agreed to an extension of time to issue a notice of tax
17 liability under this Act, the claim may be filed at any time
18 prior to the expiration of the period agreed upon.
19 Claims for credit or refund shall be filed upon forms
20 provided by the Department. As soon as practicable after any
21 claim for credit or refund is filed, the Department shall
22 examine the same and determine the amount of credit or refund
23 to which the claimant is entitled and shall notify the
24 claimant of such determination, which amount shall be prima
25 facie correct.
26 Any credit or refund that is allowed under this Act shall
27 bear interest at the rate and in the manner specified in the
28 Uniform Penalty and Interest Act.
29 In case the Department determines that the claimant is
30 entitled to a refund, such refund shall be made only from
31 such appropriation as may be available for that purpose. If
32 it appears unlikely that the amount appropriated would permit
33 everyone having a claim allowed during the period covered by
34 such appropriation to elect to receive a cash refund, the
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1 Department, by rule or regulation, shall provide for the
2 payment of refunds in hardship cases and shall define what
3 types of cases qualify as hardship cases.
4 (Source: P.A. 90-491, eff. 1-1-98; 90-624, eff. 7-10-98.)
5 Section 75. The Water Company Invested Capital Tax Act
6 is amended by changing Section 6 as follows:
7 (35 ILCS 625/6) (from Ch. 120, par. 1416)
8 Sec. 6. If it appears, after claim therefor filed with
9 the Department, that an amount of tax or penalty or interest
10 has been paid which was not due under this Act, whether as
11 the result of a mistake of fact or an error of law, except as
12 hereinafter provided, then the Department shall issue a
13 credit memorandum or refund to the person who made the
14 erroneous payment or, if that person has died or become
15 incompetent, to his legal representative, as such.
16 If it is determined that the Department should issue a
17 credit or refund under this Act, the Department may first
18 apply the amount thereof against any amount of tax or penalty
19 or interest due hereunder from the person entitled to such
20 credit or refund. For this purpose, if proceedings are
21 pending to determine whether or not any tax or penalty or
22 interest is due under this Act from such person, the
23 Department may withhold issuance of the credit or refund
24 pending the final disposition of such proceedings and may
25 apply such credit or refund against any amount found to be
26 due to the Department as a result of such proceedings. The
27 balance, if any, of the credit or refund shall be issued to
28 the person entitled thereto.
29 If no tax or penalty or interest is due and no proceeding
30 is pending to determine whether such person is indebted to
31 the Department for tax or penalty or interest, the credit
32 memorandum or refund shall be issued to the claimant; or (in
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1 the case of a credit memorandum) the credit memorandum may be
2 assigned and set over by the lawful holder thereof, subject
3 to reasonable rules of the Department, to any other person
4 who is subject to this Act, and the amount thereof shall be
5 applied by the Department against any tax or penalty or
6 interest due or to become due under this Act from such
7 assignee.
8 As to any claim for credit or refund filed with the
9 Department on or after each January 1 and July 1, no amounts
10 erroneously paid more than 3 years prior to such January 1
11 and July 1, respectively, shall be credited or refunded,
12 except that if both the Department and the taxpayer have
13 agreed to an extension of time to issue a notice of tax
14 liability under this Act, the claim may be filed at any time
15 prior to the expiration of the period agreed upon.
16 Claims for credit or refund shall be filed upon forms
17 provided by the Department. As soon as practicable after any
18 claim for credit or refund is filed, the Department shall
19 examine the same and determine the amount of credit or refund
20 to which the claimant is entitled and shall notify the
21 claimant of such determination, which amount shall be prima
22 facie correct.
23 Any credit or refund that is allowed under this Section
24 shall bear interest at the rate and in the manner specified
25 in the Uniform Penalty and Interest Act.
26 In case the Department determines that the claimant is
27 entitled to a refund, such refund shall be made only from
28 such appropriation as may be available for that purpose. If
29 it appears unlikely that the amount appropriated would permit
30 everyone having a claim allowed during the period covered by
31 such appropriation to elect to receive a cash refund, the
32 Department, by rule or regulation, shall provide for the
33 payment of refunds in hardship cases and shall define what
34 types of cases qualify as hardship cases.
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1 (Source: P.A. 90-491, eff. 1-1-98.)
2 Section 80. The Telecommunications Excise Tax Act is
3 amended by changing Section 10 as follows:
4 (35 ILCS 630/10) (from Ch. 120, par. 2010)
5 Sec. 10. If it shall appear that an amount of tax or
6 penalty or interest has been paid in error hereunder to the
7 Department by a taxpayer, as distinguished from the retailer,
8 whether such amount be paid through a mistake of fact or an
9 error of law, such taxpayer may file a claim for credit or
10 refund with the Department. If it shall appear that an
11 amount of tax or penalty or interest has been paid in error
12 to the Department hereunder by a retailer who is required or
13 authorized to collect and remit the tax imposed by this
14 Article, whether such amount be paid through a mistake of
15 fact or an error of law, such retailer may file a claim for
16 credit or refund with the Department, provided that no credit
17 or refund shall be allowed for any amount paid by any such
18 retailer unless it shall appear that he bore the burden of
19 such amount and did not shift the burden thereof to anyone
20 else, or unless it shall appear that he or she or his or her
21 legal representative has unconditionally repaid such amount
22 to his customer (1) who bore the burden thereof and has not
23 shifted such burden directly or indirectly in any manner
24 whatsoever; or (2) who, if he or she shifted such burden, has
25 repaid unconditionally such amount to his or her own
26 customer; and (3) who is not entitled to receive any
27 reimbursement therefor from any other source than from his
28 retailer, nor to be relieved of such burden in any other
29 manner whatsoever.
30 If it is determined that the Department should issue a
31 credit or refund under this Article, the Department may first
32 apply the amount thereof against any amount of tax or penalty
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1 or interest due hereunder from the person entitled to such
2 credit or refund. For this purpose, if proceedings are
3 pending to determine whether or not any tax or penalty or
4 interest is due under this Article from such person, the
5 Department may withhold issuance of the credit or refund
6 pending the final disposition of such proceedings and may
7 apply such credit or refund against any amount found to be
8 due to the Department as a result of such proceedings. The
9 balance, if any, of the credit or refund shall be issued to
10 the person entitled thereto.
11 If no tax or penalty or interest is due and no proceeding
12 is pending to determine whether such person is indebted to
13 the Department for tax or penalty or interest, the credit
14 memorandum or refund shall be issued to the claimant; or (in
15 the case of a credit memorandum) the credit memorandum may be
16 assigned and set over by the lawful holder thereof, subject
17 to reasonable rules of the Department, to any other person
18 who is subject to this Article, and the amount thereof shall
19 be applied by the Department against any tax or penalty or
20 interest due or to become due under this Article from such
21 assignee.
22 As to any claim for credit or refund filed with the
23 Department on or after each January 1 and July 1, no amounts
24 erroneously paid more than three years prior to such January
25 1 and July 1, respectively, shall be credited or refunded,
26 except that if both the Department and the taxpayer have
27 agreed to an extension of time to issue a notice of tax
28 liability under this Act, the claim may be filed at any time
29 prior to the expiration of the period agreed upon.
30 Claims for credit or refund shall be filed upon forms
31 provided by the Department. As soon as practicable after any
32 claim for credit or refund is filed, the Department shall
33 examine the same and determine the amount of credit or refund
34 to which the claimant is entitled and shall notify the
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1 claimant of such determination, which amount shall be prima
2 facie correct.
3 A claim for credit or refund shall be considered to have
4 been filed with the Department on the date upon which it is
5 received by the Department. Upon receipt of any claim for
6 credit or refund filed under this Article, any officer or
7 employee of the Department, authorized in writing by the
8 Director of Revenue to acknowledge receipt of such claims on
9 behalf of the Department, shall execute on behalf of the
10 Department, and shall deliver or mail to the claimant or his
11 duly authorized agent, a written receipt, acknowledging that
12 the claim has been filed with the Department, describing the
13 claim in sufficient detail to identify it and stating the
14 date upon which the claim was received by the Department.
15 Such written receipt shall be prima facie evidence that the
16 Department received the claim described in such receipt and
17 shall be prima facie evidence of the date when such claim was
18 received by the Department. In the absence of such a written
19 receipt, the records of the Department as to when the claim
20 was received by the Department, or as to whether or not the
21 claim was received at all by the Department, shall be deemed
22 to be prima facie correct upon these questions in the event
23 of any dispute between the claimant (or his or her legal
24 representative) and the Department concerning these
25 questions.
26 Any credit or refund that is allowed under this Article
27 shall bear interest at the rate and in the manner specified
28 in the Uniform Penalty and Interest Act.
29 In case the Department determines that the claimant is
30 entitled to a refund, such refund shall be made only from
31 such appropriation as may be available for that purpose. If
32 it appears unlikely that the amount appropriated would permit
33 everyone having a claim allowed during the period covered by
34 such appropriation to elect to receive a cash refund, the
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1 Department by rule or regulation shall provide for the
2 payment of refunds in hardship cases and shall define what
3 types of cases qualify as hardship cases.
4 If a retailer who has failed to pay tax on gross charges
5 for telecommunications is required by the Department to pay
6 such tax, such retailer, without filing any formal claim with
7 the Department, shall be allowed to take credit against such
8 tax liability to the extent, if any, to which such retailer
9 has paid the tax to its vendor of the telecommunications
10 which such retailer purchased and used for resale, and no
11 penalty or interest shall be charged to such retailer on the
12 amount of such credit. However, when such credit is allowed
13 to the retailer by the Department, the vendor is precluded
14 from refunding any of the tax to the retailer and filing a
15 claim for credit or refund with respect thereto with the
16 Department. The provisions of this Section added by this
17 amendatory Act of 1988 shall be applied retroactively,
18 regardless of the date of the transaction.
19 (Source: P.A. 90-491, eff. 1-1-98.)
20 Section 85. The Uniform Penalty and Interest Act is
21 amended by changing Sections 3-3 and 3-7 as follows:
22 (35 ILCS 735/3-3) (from Ch. 120, par. 2603-3)
23 Sec. 3-3. Penalty for failure to file or pay.
24 (a) This subsection (a) is applicable before January 1,
25 1996. A penalty of 5% of the tax required to be shown due on
26 a return shall be imposed for failure to file the tax return
27 on or before the due date prescribed for filing determined
28 with regard for any extension of time for filing (penalty for
29 late filing or nonfiling). If any unprocessable return is
30 corrected and filed within 21 days after notice by the
31 Department, the late filing or nonfiling penalty shall not
32 apply. If a penalty for late filing or nonfiling is imposed
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1 in addition to a penalty for late payment, the total penalty
2 due shall be the sum of the late filing penalty and the
3 applicable late payment penalty. Beginning on the effective
4 date of this amendatory Act of 1995, in the case of any type
5 of tax return required to be filed more frequently than
6 annually, when the failure to file the tax return on or
7 before the date prescribed for filing (including any
8 extensions) is shown to be nonfraudulent and has not occurred
9 in the 2 years immediately preceding the failure to file on
10 the prescribed due date, the penalty imposed by section
11 3-3(a) shall be abated.
12 (a-5) This subsection (a-5) is applicable on and after
13 January 1, 1996. A penalty equal to 2% of the tax required to
14 be shown due on a return, up to a maximum amount of $250,
15 determined without regard to any part of the tax that is paid
16 on time or by any credit that was properly allowable on the
17 date the return was required to be filed, shall be imposed
18 for failure to file the tax return on or before the due date
19 prescribed for filing determined with regard for any
20 extension of time for filing. However, if any return is not
21 filed within 30 days after notice of nonfiling mailed by the
22 Department to the last known address of the taxpayer
23 contained in Department records, an additional penalty amount
24 shall be imposed equal to the greater of $250 or 2% of the
25 tax shown on the return. However, the additional penalty
26 amount may not exceed $5,000 and is determined without regard
27 to any part of the tax that is paid on time or by any credit
28 that was properly allowable on the date the return was
29 required to be filed (penalty for late filing or nonfiling).
30 If any unprocessable return is corrected and filed within 30
31 days after notice by the Department, the late filing or
32 nonfiling penalty shall not apply. If a penalty for late
33 filing or nonfiling is imposed in addition to a penalty for
34 late payment, the total penalty due shall be the sum of the
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1 late filing penalty and the applicable late payment penalty.
2 In the case of any type of tax return required to be filed
3 more frequently than annually, when the failure to file the
4 tax return on or before the date prescribed for filing
5 (including any extensions) is shown to be nonfraudulent and
6 has not occurred in the 2 years immediately preceding the
7 failure to file on the prescribed due date, the penalty
8 imposed by section 3-3(a) shall be abated.
9 (b) This subsection is applicable before January 1,
10 1998. A penalty of 15% of the tax shown on the return or the
11 tax required to be shown due on the return shall be imposed
12 for failure to pay:
13 (1) the tax shown due on the return on or before
14 the due date prescribed for payment of that tax, an
15 amount of underpayment of estimated tax, or an amount
16 that is reported in an amended return other than an
17 amended return timely filed as required by subsection (b)
18 of Section 506 of the Illinois Income Tax Act (penalty
19 for late payment or nonpayment of admitted liability); or
20 (2) the full amount of any tax required to be shown
21 due on a return and which is not shown (penalty for late
22 payment or nonpayment of additional liability), within 30
23 days after a notice of arithmetic error, notice and
24 demand, or a final assessment is issued by the
25 Department. In the case of a final assessment arising
26 following a protest and hearing, the 30-day period shall
27 not begin until all proceedings in court for review of
28 the final assessment have terminated or the period for
29 obtaining a review has expired without proceedings for a
30 review having been instituted. In the case of a notice
31 of tax liability that becomes a final assessment without
32 a protest and hearing, the penalty provided in this
33 paragraph (2) shall be imposed at the expiration of the
34 period provided for the filing of a protest.
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1 (b-5) This subsection is applicable on and after January
2 1, 1998. A penalty of 20% of the tax shown on the return or
3 the tax required to be shown due on the return shall be
4 imposed for failure to pay:
5 (1) the tax shown due on the return on or before
6 the due date prescribed for payment of that tax, an
7 amount of underpayment of estimated tax, or an amount
8 that is reported in an amended return other than an
9 amended return timely filed as required by subsection (b)
10 of Section 506 of the Illinois Income Tax Act (penalty
11 for late payment or nonpayment of admitted liability); or
12 (2) the full amount of any tax required to be shown
13 due on a return and which is not shown (penalty for late
14 payment or nonpayment of additional liability), within 30
15 days after a notice of arithmetic error, notice and
16 demand, or a final assessment is issued by the
17 Department. In the case of a final assessment arising
18 following a protest and hearing, the 30-day period shall
19 not begin until all proceedings in court for review of
20 the final assessment have terminated or the period for
21 obtaining a review has expired without proceedings for a
22 review having been instituted. In the case of a notice
23 of tax liability that becomes a final assessment without
24 a protest and hearing, the penalty provided in this
25 paragraph (2) shall be imposed at the expiration of the
26 period provided for the filing of a protest.
27 (c) For purposes of the late payment penalties, the
28 basis of the penalty shall be the tax shown or required to be
29 shown on a return, whichever is applicable, reduced by any
30 part of the tax which is paid on time and by any credit which
31 was properly allowable on the date the return was required to
32 be filed.
33 (d) A penalty shall be applied to the tax required to be
34 shown even if that amount is less than the tax shown on the
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1 return.
2 (e) If both a subsection (b)(1) penalty and a subsection
3 (b)(2) penalty are assessed against the same return, the
4 subsection (b)(2) penalty shall be assessed against only the
5 additional tax found to be due.
6 (f) If the taxpayer has failed to file the return, the
7 Department shall determine the correct tax according to its
8 best judgment and information, which amount shall be prima
9 facie evidence of the correctness of the tax due.
10 (g) The time within which to file a return or pay an
11 amount of tax due without imposition of a penalty does not
12 extend the time within which to file a protest to a notice of
13 tax liability or a notice of deficiency.
14 (h) No return shall be determined to be unprocessable
15 because of the omission of any information requested on the
16 return pursuant to Section 39b53 of the Civil Administrative
17 Code of Illinois.
18 (Source: P.A. 89-379, eff. 8-18-95; 89-436, eff. 1-1-96;
19 90-491, eff. 1-1-98; 90-548, eff. 12-4-97.)
20 (35 ILCS 735/3-7) (from Ch. 120, par. 2603-7)
21 Sec. 3-7. Personal Liability Penalty.
22 (a) Any officer or employee of any taxpayer subject to
23 the provisions of a tax Act administered by the Department
24 who has the control, supervision or responsibility of filing
25 returns and making payment of the amount of any trust tax
26 imposed in accordance with that Act and who wilfully fails to
27 file the return or make the payment to the Department or
28 wilfully attempts in any other manner to evade or defeat the
29 tax shall be personally liable for a penalty equal to the
30 total amount of tax unpaid by the taxpayer including interest
31 and penalties thereon. The Department shall determine a
32 penalty due under this Section according to its best judgment
33 and information, and that determination shall be prima facie
-83- LRB9104699PTpk
1 correct and shall be prima facie evidence of a penalty due
2 under this Section. Proof of that determination by the
3 Department shall be made at any hearing before it or in any
4 legal proceeding by reproduced copy or computer printout of
5 the Department's record relating thereto in the name of the
6 Department under the certificate of the Director of Revenue.
7 If reproduced copies of the Department's records are offered
8 as proof of that determination, the Director must certify
9 that those copies are true and exact copies of records on
10 file with the Department. If computer print-outs of the
11 Department's records are offered as proof of such
12 determination, the Director must certify that those computer
13 print-outs are true and exact representations of records
14 properly entered into standard electronic computing
15 equipment, in the regular course of the Department's
16 business, at or reasonably near the time of the occurrence of
17 the facts recorded, from trustworthy and reliable
18 information. That certified reproduced copy or certified
19 computer print-out shall without further proof, be admitted
20 into evidence before the Department or in any legal
21 proceeding and shall be prima facie proof of the correctness
22 of the amount of tax or penalty due.
23 (b) The Department shall issue a notice of penalty
24 liability for the amount claimed by the Department pursuant
25 to this Section. Procedures for protest and review of a
26 notice of penalty liability issued pursuant to this Section
27 and assessment of the penalty due hereunder shall be the same
28 as those prescribed for protest and review of a notice of tax
29 liability or a notice of deficiency, as the case may be, and
30 the assessment of tax liability under the Act imposing that
31 liability.
32 (b-5) Any person filing an action under the
33 Administrative Review Law to review a final assessment or
34 revised final assessment (except a final assessment or
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1 revised final assessment relating to any trust tax imposed in
2 accordance with the Illinois Income Tax Act) issued by the
3 Department under this Section shall, within 20 days after
4 filing the complaint, file a bond with good and sufficient
5 surety or sureties residing in this State or licensed to do
6 business in this State, or instead of bond, obtain an order
7 from the court imposing a lien upon the plaintiff's property
8 as hereinafter provided. If the person filing the complaint
9 fails to comply with this bonding requirement within 20 days
10 after filing the complaint, the Department shall file a
11 motion to dismiss and the court shall dismiss the action
12 unless the person filing the action complies with the bonding
13 requirements set out with this provision within 30 days after
14 the filing of the Department's motion to dismiss.
15 Upon dismissal of a complaint for failure to comply with
16 this subsection, the court shall enter judgment against the
17 taxpayer and in favor of the Department in the amount of the
18 final assessment or revised final assessment, together with
19 any interest that has accrued since the Department issued the
20 final assessment or revised final assessment, and for costs.
21 The judgment is enforceable as other judgments for the
22 payment of money.
23 The amount of the bond shall be fixed and approved by the
24 court, but shall not be less than the amount of the tax and
25 penalty claimed to be due by the Department in its final
26 assessment or revised final assessment to the person filing
27 the bond, plus the amount of interest due from that person to
28 the Department at the time when the Department issued its
29 final assessment or revised final assessment to that person.
30 The bond must be executed in favor of the Department and
31 conditioned on the taxpayer's payment within 30 days after
32 termination of the proceedings for judicial review of the
33 amount of tax, penalty, and interest found by the court to be
34 due in those proceedings. The bond, when filed and approved,
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1 is, from that time until 2 years after termination of the
2 proceedings for judicial review in which the bond is filed, a
3 lien against the real estate situated in the county in which
4 the bond is filed of the person filing the bond and of the
5 surety or sureties on the bond, until the condition of the
6 bond is complied with or until the bond is canceled as
7 provided in this subsection. The lien does not apply,
8 however, to the real property of a corporate surety duly
9 licensed to do business in this State. If the person filing
10 the bond fails to keep its condition, the bond is forfeited,
11 and the Department may institute an action upon the bond in
12 its own name for the entire amount of the bond and costs. An
13 action upon the bond is in addition to any other remedy
14 provided by law. If the person filing the bond complies with
15 its condition or if, in the proceedings for judicial review
16 in which the bond is filed, the court determines that no tax,
17 penalty, or interest is due, the bond shall be canceled by
18 the issuer of the bond.
19 If the court finds in a particular case that the
20 plaintiff cannot furnish a satisfactory surety or sureties
21 for the kind of bond required in this subsection, the court
22 may relieve the plaintiff of the obligation of filing a bond
23 if, upon the timely application of the plaintiff for a lien
24 in place of a bond and accompanying proof, the court is
25 satisfied that a lien would secure the assessment as well as
26 would a bond. Upon that finding, the court shall enter an
27 order subjecting the plaintiff's real and personal property
28 (including subsequently acquired property) situated in the
29 county in which the order is entered to a lien in favor of
30 the Department. The lien shall be for the amount of the tax
31 and penalty claimed to be due by the Department in its final
32 assessment or revised final assessment, plus the amount of
33 interest due from that person to the Department at the time
34 when the Department issued its final assessment or revised
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1 final assessment to that person. The lien shall continue
2 until the court determines in the proceedings for judicial
3 review that no tax, penalty, or interest is due, or until the
4 plaintiff pays to the Department the tax, penalty, and
5 interest secured by the lien. In its discretion, the court
6 may impose a lien regardless of the ratio of the taxpayer's
7 assets to the final assessment or revised final assessment
8 plus the amount of the interest and penalty. This subsection
9 does not give the Department a preference over the rights of
10 a bona fide purchaser, mortgagee, judgment creditor, or other
11 lien holder arising before the entry of the order creating
12 the lien in favor of the Department. "Bona fide", as used in
13 this subsection, does not include a mortgage of real or
14 personal property or other credit transaction that results in
15 the mortgagee or the holder of the security acting as trustee
16 for unsecured creditors of the taxpayer who executed the
17 chattel or real property mortgage or the document evidencing
18 the credit transaction. The lien is inferior to the lien of
19 general taxes, special assessments, and special taxes levied
20 by a political subdivision of this State. The lien is not
21 effective against a purchaser with respect to an item in a
22 retailer's stock in trade purchased from the retailer in the
23 usual course of the retailer's business. The lien may not be
24 enforced against the household effects, wearing apparel,
25 books, or tools or implements of a trade or profession kept
26 for use by any person. The lien is not effective against real
27 property unless and until a certified copy or memorandum of
28 such order is recorded in the Office of the Recorder of Deeds
29 for the county or counties in which the property is located.
30 The lien is not effective against real property whose title
31 is registered under the provisions of the Registered Titles
32 (Torrens) Act until the provisions of Section 85 of that Act
33 are complied with.
34 Service upon the Director of Revenue or the Assistant
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1 Director of Revenue of summons issued in an action to review
2 a final administrative decision of the Department is service
3 upon the Department. The Department shall certify the record
4 of its proceedings if the taxpayer pays to it 75¢ per page of
5 testimony taken before the Department and 25¢ per page of all
6 other matters contained in the record, except that these
7 charges may be waived when the Department is satisfied that
8 the aggrieved party is a poor person who cannot afford to pay
9 the charges. If payment for the record is not made by the
10 taxpayer within 30 days after notice from the Department or
11 the Attorney General of the cost, the court in which the
12 proceeding is pending, on motion of the Department, shall
13 dismiss the complaint and (when the administrative decision
14 as to which the action for judicial review was filed is a
15 final assessment or revised final assessment) shall enter
16 judgment against the taxpayer and in favor of the Department
17 for the amount of tax and penalty shown by the Department's
18 final assessment or revised final assessment to be due, plus
19 interest as provided for in this Act from the date when the
20 liability upon which the interest accrued became delinquent
21 until the entry of the judgment in the action for judicial
22 review under the Administrative Review Law, and also for
23 costs.
24 (c) The personal liability imposed by this Section shall
25 survive the dissolution of a partnership, limited liability
26 company, or corporation. No notice of penalty liability
27 shall be issued after the expiration of 3 years after the
28 date all proceedings in court for the review of any final or
29 revised final assessments issued against a taxpayer which
30 constitute the basis of such penalty liability have
31 terminated or the time for the taking thereof has expired
32 without such proceedings being instituted or after the
33 expiration of 3 years after the date a return is filed with
34 the Department by a taxpayer in cases where the return
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1 constitutes the basis of such liability. Interest shall
2 continue to accrue on that portion of the penalty imposed by
3 this Section which represents the tax unpaid by the taxpayer
4 at the same rate and in the same amount as interest accrues
5 on the tax unpaid by the taxpayer.
6 (d) In addition to any other remedy provided for by the
7 laws of this State, and provided that no hearing or
8 proceeding for review is pending, any Section of a tax Act
9 which provides a means for collection of taxes shall in the
10 same manner and to the same extent provide a means for the
11 collection of the penalty imposed by this Section. The
12 procedures for the filing of an action for collection of the
13 penalty imposed by this Section shall be the same as those
14 prescribed by a tax Act for the filing of an action for
15 collection of the tax assessed under that Act. The time
16 limitation period on the Department's right to bring suit to
17 recover the amount of such tax, or portion thereof, or
18 penalty or interest from such person, or if deceased or
19 incompetent to file a claim thereof against his estate, shall
20 not run during: (1) any period of time in which the order of
21 any Court has the effect of enjoining or restraining the
22 Department from bringing such suit or claim against such
23 person, or (2) any period of time in which the order of the
24 Court has the effect of enjoining or restraining the
25 Department from bringing suit or initiating other proper
26 proceedings for the collection of such amounts from the
27 taxpayer, or (3) any period of time the person departs from
28 and remains out of the State; but the foregoing provisions
29 concerning absence from the State shall not apply to any case
30 in which, at the time when a tax or penalty becomes due under
31 this Act, the person allegedly liable therefor is not a
32 resident of this State.
33 (e) For the purposes of this Section, "officer or
34 employee of any taxpayer" includes a partner of a
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1 partnership, a manager or member of a limited liability
2 corporation, and a member of a registered limited liability
3 partnership.
4 (f) A trust tax is any tax for which an amount is
5 collected or withheld by a taxpayer from another person, and
6 any tax for which an amount is required to be collected or
7 withheld by a taxpayer from another person, regardless of
8 whether it is in fact collected or withheld.
9 (g) The personal liability imposed by this Section is in
10 addition to liability incurred by a partner of a partnership
11 or limited liability partnership resulting from the issuance
12 of a notice of tax liability issued to the partnership or
13 limited liability partnership.
14 (Source: P.A. 89-399, eff. 8-20-95; 89-626, eff. 8-9-96;
15 90-458, eff. 8-17-97.)
16 Section 90. The Illinois Public Accounting Act is
17 amended by changing Section 27 as follows:
18 (225 ILCS 450/27) (from Ch. 111, par. 5533)
19 Sec. 27. A public accountant shall not be required by any
20 court or by the Department of Revenue in a non-criminal
21 proceeding before it to divulge information or evidence which
22 has been obtained by him in his confidential capacity as a
23 public accountant. This Section shall not apply to any
24 investigation or hearing undertaken pursuant to this Act.
25 Nothing in this Section shall be construed to limit,
26 waive, or abrogate the scope or nature of any common law
27 privilege concerning the confidential capacity of a public
28 accountant.
29 (Source: P.A. 83-291.)
30 Section 99. Effective date. This Act takes effect upon
31 becoming law.
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1 INDEX
2 Statutes amended in order of appearance
3 20 ILCS 2520/5 from Ch. 120, par. 2305
4 20 ILCS 2520/5.5 new
5 20 ILCS 2520/5.6 new
6 35 ILCS 5/902 from Ch. 120, par. 9-902
7 35 ILCS 5/904 from Ch. 120, par. 9-904
8 35 ILCS 5/917 from Ch. 120, par. 9-917
9 35 ILCS 5/917.5 new
10 35 ILCS 105/19 from Ch. 120, par. 439.19
11 35 ILCS 105/20 from Ch. 120, par. 439.20
12 35 ILCS 110/17 from Ch. 120, par. 439.47
13 35 ILCS 110/18 from Ch. 120, par. 439.48
14 35 ILCS 115/17 from Ch. 120, par. 439.117
15 35 ILCS 115/18 from Ch. 120, par. 439.118
16 35 ILCS 120/4 from Ch. 120, par. 443
17 35 ILCS 120/5 from Ch. 120, par. 444
18 35 ILCS 120/6a from Ch. 120, par. 445a
19 35 ILCS 120/6b from Ch. 120, par. 445b
20 35 ILCS 130/9a from Ch. 120, par. 453.9a
21 35 ILCS 130/9b from Ch. 120, par. 453.9b
22 35 ILCS 135/13 from Ch. 120, par. 453.43
23 35 ILCS 135/13a from Ch. 120, par. 453.43a
24 35 ILCS 145/6 from Ch. 120, par. 481b.36
25 35 ILCS 505/5 from Ch. 120, par. 421
26 35 ILCS 505/5a from Ch. 120, par. 421a
27 35 ILCS 505/5b from Ch. 120, par. 421b
28 35 ILCS 510/2 from Ch. 120, par. 481b.2
29 35 ILCS 520/16 from Ch. 120, par. 2166
30 35 ILCS 610/6 from Ch. 120, par. 467.6
31 35 ILCS 615/6 from Ch. 120, par. 467.21
32 35 ILCS 620/6 from Ch. 120, par. 473
33 35 ILCS 625/6 from Ch. 120, par. 1416
34 35 ILCS 630/10 from Ch. 120, par. 2010
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1 35 ILCS 735/3-3 from Ch. 120, par. 2603-3
2 35 ILCS 735/3-7 from Ch. 120, par. 2603-7
3 225 ILCS 450/27 from Ch. 111, par. 5533