Public Act 93-0030

SB1725 Enrolled                      LRB093 02872 SJM 02888 b

    AN ACT concerning taxation.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.   The Illinois Estate and Generation-Skipping
Transfer Tax Act is amended by changing Sections 2, 3, 5,  6,
7, 8, and 10 as follows:

    (35 ILCS 405/2) (from Ch. 120, par. 405A-2)
    Sec. 2.  Definitions.
    "Federal  estate  tax"  means  the  tax due to the United
States with respect to a taxable transfer under Chapter 11 of
the Internal Revenue Code.
    "Federal generation-skipping transfer tax" means the  tax
due  to  the United States with respect to a taxable transfer
under Chapter 13 of the Internal Revenue Code.
    "Federal return" means the federal estate tax return with
respect to the federal  estate  tax  and  means  the  federal
generation-skipping  transfer  tax return with respect to the
federal generation-skipping transfer tax.
    "Federal transfer tax" means the federal  estate  tax  or
the federal generation-skipping transfer tax.
    "Illinois  estate  tax"  means  the tax due to this State
with respect to a taxable  transfer  that  gives  rise  to  a
federal estate tax.
    "Illinois generation-skipping transfer tax" means the tax
due  to  this  State  with respect to a taxable transfer that
gives rise to a federal generation-skipping transfer tax.
    "Illinois transfer tax" means the Illinois estate tax  or
the Illinois generation-skipping transfer tax.
    "Internal Revenue Code" means, unless otherwise provided,
the  Internal  Revenue  Code of 1986, as amended from time to
time.
    "Non-resident trust" means a trust that is not a resident
of this State for purposes of the Illinois Income Tax Act, as
amended from time to time.
    "Person"  means  and  includes  any  individual,   trust,
estate, partnership, association, company or corporation.
    "Qualified  heir"  means  a  qualified heir as defined in
Section 2032A(e)(1) of the Internal Revenue Code.
    "Resident trust" means a trust that is a resident of this
State for purposes of the Illinois Income Tax Act, as amended
from time to time.
    "State" means any state, territory or possession  of  the
United States and the District of Columbia.
    "State tax credit" means:
    (a)  For  persons  dying  on or after January 1, 2003 and
through December 31, 2005, an amount equal to the full credit
calculable under Section 2011 or Section 2604 of the Internal
Revenue Code as the  credit  would  have  been  computed  and
allowed  under  the  Internal  Revenue  Code  as in effect on
December 31, 2001, without the reduction in the  State  Death
Tax   Credit   as  provided  in  Section  2011(b)(2)  or  the
termination of the State Death  Tax  Credit  as  provided  in
Section  2011(f)  as  enacted  by the Economic Growth and Tax
Relief  Reconciliation  Act  of  2001,  but  recognizing  the
increased applicable exclusion amount  through  December  31,
2005.
    (b)  For  persons dying after December 31, 2005 and on or
before December 31, 2009, an amount equal to the full  credit
calculable under Section 2011 or 2604 of the Internal Revenue
Code as the credit would have been computed and allowed under
the  Internal Revenue Code as in effect on December 31, 2001,
without the reduction  in  the  State  Death  Tax  Credit  as
provided  in  Section  2011(b)(2)  or  the termination of the
State Death Tax Credit as  provided  in  Section  2011(f)  as
enacted  by the Economic Growth and Tax Relief Reconciliation
Act of 2001, but recognizing the  exclusion  amount  of  only
$2,000,000.
    (c)  For  persons  dying  after  December  31,  2009, the
credit for state tax allowable under Section 2011 or  Section
2604 of the Internal Revenue Code.
    "Taxable  transfer"  means  an event that gives rise to a
state tax credit, including any credit allowable as a  result
of the imposition of an additional tax under Section 2032A(c)
of the Internal Revenue Code.
    "Transferee"  means  a  transferee  within the meaning of
Section  2603(a)(1)  and  Section  6901(h)  of  the  Internal
Revenue Code.
    "Transferred property" means:
         (1)  With respect to a taxable transfer occurring at
    the death of an individual that results in the imposition
    of federal estate tax, the  deceased  individual's  gross
    estate as defined in Section 2031 of the Internal Revenue
    Code.
         (2)  With respect to a taxable transfer occurring as
    a  result  of a taxable termination as defined in Section
    2612(a) of the Internal Revenue Code,  the taxable amount
    determined under Section 2622(a) of the Internal  Revenue
    Code.
         (3)  With respect to a taxable transfer occurring as
    a  result of a taxable distribution as defined in Section
    2612(b) of the Internal Revenue Code, the taxable  amount
    determined  under Section 2621(a) of the Internal Revenue
    Code.
         (4)  With respect  to  an  event  which  causes  the
    imposition  of  an  additional  estate  tax under Section
    2032A(c) of the Internal Revenue Code, the qualified real
    property that was disposed of or which ceased to be  used
    for  the  qualified  use,  within  the meaning of Section
    2032A(c)(1) of the Internal Revenue Code.
    "Trust" includes a trust as defined in Section 2652(b)(1)
of the Internal Revenue Code.
(Source: P.A. 86-737.)

    (35 ILCS 405/3) (from Ch. 120, par. 405A-3)
    Sec. 3.  Illinois estate tax.
    (a)  Imposition  of  Tax.   An  Illinois  estate  tax  is
imposed  on  every  taxable  transfer  involving  transferred
property having a tax situs within the State of Illinois.
    (b)  Amount of tax.  The amount of  the  Illinois  estate
tax  shall  be  the  maximum  state tax credit, as defined in
Section 2 of this Act, allowable with respect to the  taxable
transfer reduced by the lesser of:
         (1)  the  amount of the state tax credit paid to any
    other state or states; and
         (2)  the  amount  determined  by   multiplying   the
    maximum  state  tax  credit allowable with respect to the
    taxable transfer  by the percentage which the gross value
    of the transferred property not having  a  tax  situs  in
    Illinois   bears   to   the  gross  value  of  the  total
    transferred property.
(Source: P.A. 86-737.)

    (35 ILCS 405/5) (from Ch. 120, par. 405A-5)
    Sec. 5.  Determination of tax situs and valuation.
    (a)  Illinois estate tax.
         (1)  For purposes of the Illinois estate tax, in the
    case of a decedent who was a resident of  this  State  at
    the  time of death, all of the transferred property has a
    tax situs in this State, including any such property held
    in trust,  except  real  or  tangible  personal  property
    physically situated in another state.
         (2)  For purposes of the Illinois estate tax, in the
    case  of  a decedent who was not a resident of this State
    at the time of death, the transferred property  having  a
    tax situs in this State, including any such property held
    in  trust,  is only the real estate and tangible personal
    property physically situated in this State.
    (b)  Illinois generation-skipping transfer tax.
         (1)  For     purposes      of      the      Illinois
    generation-skipping   transfer   tax,   all   transferred
    property  from  or in a resident trust has a tax situs in
    this State, including any such property  held  in  trust,
    except  real  or  tangible  personal  property physically
    situated in another state on the date  that  the  taxable
    transfer occurs.
         (2)  For      purposes      of      the     Illinois
    generation-skipping transfer tax, none of the transferred
    property from or in a non-resident trust has a tax  situs
    in  this  State,  except  that portion of the transferred
    property that  is  real  or  tangible  personal  property
    physically  situated  in  this  State, including any such
    property held in trust, on  the  date  that  the  taxable
    transfer occurs.
    (c)  Valuation.   Except as otherwise expressly provided,
for purposes of this Act,  the  gross  value  of  transferred
property  shall  be  its  value  as  finally  determined  for
purposes of the related federal transfer tax, undiminished by
any   mortgages,   liens  or  other  encumbrances  upon  such
transferred property for which the  decedent  was  personally
liable.
(Source: P.A. 86-737.)

    (35 ILCS 405/6) (from Ch. 120, par. 405A-6)
    Sec. 6.  Returns and payments.
    (a)  Due  Dates.  The Illinois transfer tax shall be paid
and the Illinois transfer tax return shall be  filed  on  the
due  date  or  dates, respectively, including extensions, for

paying the  related  federal  transfer  tax  and  filing  the
related federal return.
    (b)  Installment  payments  and  deferral.   In the event
that any portion of the federal transfer tax is  deferred  or
to  be  paid  in  installments  under  the  provisions of the
Internal Revenue Code, the portion of the  Illinois  transfer
tax  which  is subject to deferral or payable in installments
shall be determined by multiplying the Illinois transfer  tax
by  a  fraction, the numerator of which is the gross value of
the assets included in the transferred property having a  tax
situs  in  this  State and which give rise to the deferred or
installment payment under  the Internal Revenue Code, and the
denominator of  which  is  the  gross  value  of  all  assets
included  in  the  transferred property having a tax situs in
this State.  Deferred payments and installment payments, with
interest, shall be paid at the same  time  and  in  the  same
manner  as  payments of the federal transfer tax are required
to be made under the  applicable  Sections  of  the  Internal
Revenue  Code,  provided  that the rate of interest on unpaid
amounts of Illinois transfer tax shall  be  determined  under
this  Act.   Acceleration of payment under this Section shall
occur under the same circumstances and in the same manner  as
provided in the Internal Revenue Code.
    (c)  Who  shall  file and pay.  The Illinois transfer tax
return (including any supplemental or amended  return)  shall
be  filed,  and  the  Illinois  transfer  tax  (including any
additional tax that may become due) shall be paid by the same
person or persons, respectively, who are required to pay  the
related  federal  transfer  tax  and file the related federal
return, or who would have been  required  to  pay  a  federal
transfer  tax and file a federal return if a federal transfer
tax were due.
    (d)  Where  to  file  return.   The   executed   Illinois
transfer tax return shall be filed with the Attorney General.
In addition, a copy of the Illinois transfer tax return shall
be  filed  with  the  county  treasurer  to whom the Illinois
transfer tax is paid, determined under subsection (e) of this
Section.
    (e)  Where to pay tax.  The Illinois transfer  tax  shall
be  paid  to the treasurer of the county determined under the
following rules:
         (1)  Illinois Estate Tax.  The Illinois  estate  tax
    shall be paid to the treasurer of the county in which the
    decedent  was  a  resident  on the date of the decedent's
    death or, if the decedent was  not  a  resident  of  this
    State  on  the  date  of  death,  the county in which the
    greater part, by gross value, of the transferred property
    with a tax situs in this State is located.
         (2)  Illinois Generation-Skipping Transfer Tax.  The
    Illinois  generation-skipping  transfer   tax   involving
    transferred property from or in a resident trust shall be
    paid  to the county treasurer for the county in which the
    grantor resided at the time the trust became  irrevocable
    (in  the  case  of an inter vivos trust) or the county in
    which the decedent resided at death (in  the  case  of  a
    trust  created by the will of a decedent). In the case of
    an Illinois generation-skipping  transfer  tax  involving
    transferred property from or in a non-resident trust, the
    Illinois  generation-skipping  transfer tax shall be paid
    to the county treasurer  for  the  county  in  which  the
    greater part, by gross value, of the transferred property
    with a tax situs in this State is located.
    (f)  Forms;  confidentiality.   The Illinois transfer tax
return shall be in  all  respects  in  the  manner  and  form
prescribed  by  the  regulations of the Attorney General.  At
the same time the Illinois transfer tax return is filed,  the
person  required  to  file  shall also file with the Attorney
General a copy of the related federal return. For individuals
dying after December 31, 2005,  in  cases  where  no  federal
return  is  required to be filed, the person required to file
an Illinois return shall also file with the Attorney  General
schedules  of assets in the manner and form prescribed by the
Attorney General. The Illinois transfer tax  return  and  the
copy of the federal return filed with the Attorney General or
any  county treasurer shall be confidential, and the Attorney
General, each county treasurer and all of their assistants or
employees are prohibited from divulging in any manner any  of
the  contents  of  those returns, except only in a proceeding
instituted under the provisions of this Act.
    (g)  County Treasurer shall accept  payment.   No  county
treasurer  shall  refuse  to accept payment of any amount due
under this Act on the grounds that the county  treasurer  has
not  yet received a copy of the appropriate Illinois transfer
tax return.
(Source: P.A. 86-737.)

    (35 ILCS 405/7) (from Ch. 120, par. 405A-7)
    Sec. 7.  Supplemental returns; refunds.
    (a)  Supplemental returns.  If the State  tax  credit  is
increased  after  the  filing  of  the  Illinois transfer tax
return, the person or persons required to file  the  Illinois
transfer  tax  return and pay the Illinois transfer tax shall
file  a  supplemental  Illinois  transfer  tax  return.   The
supplemental return shall be filed  and  the  additional  tax
shall  be  paid  in  the same place and manner as provided in
Section 6 of this Act.  The due  date  for  the  supplemental
return  and for the payment of the additional tax reported in
the supplemental return shall be no later than 3 months after
the earliest of:
         (1)  the date an amended, related federal return  is
    filed;
         (2)  the  date  an  increase in the federal transfer
    tax is paid or accepted in writing; or
         (3)  the date the Internal Revenue Service issues  a
    request  for evidence of payment of the State tax credit;
    or
         (4)  the date  that  any  increase  to  the  taxable
    estate is discovered;
provided  that  if  the  related  federal transfer tax may be
deferred or paid in installments, then part  or  all  of  the
additional  Illinois  transfer tax may be deferred or paid in
installments under rules consistent with  subsection  (b)  of
Section 6 of this Act.
    (b)  Refunds.   If  the state tax credit is reduced after
the filing of the Illinois transfer tax  return,  the  person
who  paid  the Illinois transfer tax (or the person upon whom
the burden of payment fell) shall file  an  amended  Illinois
transfer  tax return and shall be entitled to a refund of tax
or interest paid on the Illinois transfer tax.   No  interest
shall be paid on any amount refunded.
(Source: P.A. 86-737.)

    (35 ILCS 405/8) (from Ch. 120, par. 405A-8)
    Sec.  8.   Penalties for failure to file tax return or to
pay tax.
    (a)  Failure to file return.  In case of failure to  file
any  return required under this Act with the Attorney General
by the due date, unless it is shown that the failure to  file
is  due  to  a  reasonable cause, there shall be added to the
amount required to be shown as tax on the return  5%  of  the
amount  of  that  tax (or 5% of the additional tax due in the
case of a supplemental return) if the failure is for not more
than one month from the due date, with an additional  5%  for
each  additional  month  or  fraction  of  a month thereafter
during which the failure to file continues, not exceeding  in
the   aggregate  25%  of  the  tax  or,  in  the  case  of  a
supplemental return, 25% of the additional tax.
    (b)  Failure to pay tax.  In the case of failure  to  pay
the amount of tax shown due on any return required under this
Act on or before the due date for payment of that tax, unless
it  is  shown  that  the  failure to pay is due to reasonable
cause, there shall be added to the unpaid amount of  the  tax
0.5%  of  that  unpaid  amount if the failure is for not more
than one month from the due date, with an additional 0.5% for
each additional month  or  fraction  of  a  month  thereafter
during  which  the failure to pay continues, not exceeding in
the aggregate 25% of the unpaid amount.
    (c)  Extensions of Time.
         (1)  Internal Revenue Service  Extensions.   If  the
    date  for  filing  the related federal return or the date
    for payment  of  the  related  federal  transfer  tax  is
    extended  by  the Internal Revenue Service, the filing of
    the return and payment of the tax  imposed  by  this  Act
    shall  be  due  on  the  respective date specified by the
    Internal  Revenue  Service  in  granting  a  request  for
    extension.  If the request for extension  is  granted  by
    the Internal Revenue Service, the person required to file
    the  Illinois  transfer  tax  return  shall  furnish  the
    Attorney General with a copy of the request for extension
    showing approval of the extension by the Internal Revenue
    Service.   If a request for extension of time to file the
    federal return is denied by the Internal Revenue Service,
    no penalty shall be due under  this  Act  if  the  return
    required  by  this Act is filed within the time specified
    by the Internal Revenue Service for  filing  the  federal
    return.   If  a  request for extension of time to pay the
    federal transfer tax is denied by  the  Internal  Revenue
    Service,  no  penalty  shall be due under this Act if the
    tax is paid within the time  specified  by  the  Internal
    Revenue Service for paying the federal transfer tax.
         (2)  Attorney  General  Extensions.   The  person or
    persons required to file the Illinois transfer tax return
    and to pay the Illinois transfer tax  may  apply  to  the
    Attorney  General  for  an  extension of time to file the
    Illinois transfer tax  return  or  to  pay  the  Illinois
    transfer  tax.  The application must establish reasonable
    cause why it is  impossible  or  impractical  to  file  a
    reasonably  complete  return or to pay the full amount of
    tax due by the due date.  The Attorney  General  may  for
    reasonable cause extend the time for filing the return or
    paying  the  tax  for  a  reasonable period from the date
    fixed for filing the return or paying the tax.
    (d)  Waiver of Penalties.
         (1)  Internal  Revenue  Service  Waiver.    If   the
    Internal  Revenue  Service waives the penalty provided in
    the Internal Revenue Code for failure to timely file  the
    related  federal  return  or  the  penalty for failure to
    timely pay the related federal  transfer  tax  liability,
    such  waiver  or  waivers  shall  be deemed to constitute
    reasonable cause for purposes of this Section.
         (2)  Attorney General Waiver.  The Attorney  General
    may waive the penalty or penalties for failure to file or
    pay  for reasonable cause, notwithstanding the failure of
    the Internal Revenue Service  to  waive  the  penalty  or
    penalties for failure to timely file the federal transfer
    tax return or to pay the federal transfer tax.
(Source: P.A. 86-737.)

    (35 ILCS 405/10) (from Ch. 120, par. 405A-10)
    Sec. 10.  Liens and Personal Liability.
    (a)  Lien for Illinois transfer tax.  Unless the Illinois
transfer  tax  is  sooner paid in full, the Illinois transfer
tax shall  be  a  lien  in  favor  of  this  State  upon  the
transferred property having a tax situs within this State for
10  years  from  the date of the taxable transfer, or, in the
case of Illinois transfer tax subject to deferral or  payable
in  installments,  the later of 10 years from the date of the
taxable transfer or one  year  after  the  last  deferred  or
installment payment may become due.  The lien imposed by this
Section  on  the  transferred  property shall not be valid as
against any purchaser, mortgagee, pledgee, or other holder of
a security interest for a full and adequate consideration  in
money or money's worth; provided, however, that any property,
consideration  or  proceeds received as a result of any sale,
mortgage, pledge or granting of  a  security  interest  shall
remain  subject  to  the  lien  imposed  by this Section.  In
addition, the lien imposed by this Section on the transferred
property shall be subject to  the  exceptions  set  forth  in
Section  6324(c)(i)  of  the  Internal Revenue Code as if the
lien were a lien imposed by that Section.  In no event  shall
the issuance by the Attorney General of a release of the lien
imposed  by  this  subsection be required with respect to the
sale, mortgage, pledge, granting of a security  interest  in,
transfer or distribution of transferred property.
    (b)  Special lien for property valued under Section 2032A
of  the  Internal  Revenue  Code.   In the event the Illinois
estate tax is reduced  as  a  result  of  an  election  under
Section  2032A  of  the Internal Revenue Code, then an amount
equal to the additional Illinois estate tax that would be due
in the absence of such an election shall be a lien  in  favor
of  this  State  on  the  transferred property that has a tax
situs in this State and is subject  to  such  election.   The
lien  imposed  by  this subsection shall arise at the time an
election is filed under Section 2032A of the Internal Revenue
Code and shall continue  with  respect  to  such  transferred
property:
         (1)  until the liability for the Illinois estate tax
    with  respect  to  such  transferred  property  has  been
    satisfied  or has become unenforceable by reason of lapse
    of time or otherwise; or
         (2)  until it is established to the satisfaction  of
    the  Attorney  General  that no further tax liability may
    arise under this Act with  respect  to  such  transferred
    property.
    The lien imposed by this subsection shall not be valid as
against  any purchaser, mortgagee, pledgee, other holder of a
security interest, mechanic's lien, or judgment lien creditor
until notice of such lien has been filed as provided  by  the
laws  of this State.  In regulations prescribed in accordance
with Section 16 of this Act, the Attorney General may require
that the qualified heir  file  such  notice  of  lien.   Even
though  notice of said lien has been filed as provided in the
preceding sentence, such lien shall be subject to  the  rules
set  forth  in  paragraph  (3)  of  Section  6324A(d)  of the
Internal Revenue Code as if the lien were a lien  imposed  by
that Section.
    (c)  Personal liability.  If the Illinois transfer tax is
not  paid  when  due,  then  the  person required to file the
related federal return and the transferee of any  transferred
property  having  a  tax  situs  within  this  State shall be
personally liable for  the  Illinois  transfer  tax,  to  the
extent  of  such  transferred  property  originally received,
controlled or transferred to that person or transferee,  less
the amount of any expenses or charges against the transferred
property,  related  to  the  taxable  transfer,  which have a
higher priority of payment  under  applicable  law  than  the
Illinois transfer tax.
    (d)  Collection.   The  Attorney  General  shall have the
right to sue for collection of the Illinois transfer tax  for
3  years  after  the date of the actual filing of the related
Illinois transfer tax return with the Attorney  General,  or,
if  later, the last date upon which application for refund of
the Illinois transfer tax  could  be  filed  with  the  State
Treasurer.
    (e)  Waiver  of  lien  and  personal  liability.   If the
Attorney General is satisfied that no liability for  Illinois
transfer  tax  exists  or  that the Illinois transfer tax has
been fully discharged or provided for, the  Attorney  General
shall  issue  a  certificate releasing all of the transferred
property having a tax situs within the State of Illinois from
the  lien  imposed  by  this  Section.   Issuance   of   such
certificate  shall  discharge the person required to file the
Illinois related  federal  return  and  any  transferee  from
personal liability for the Illinois transfer tax.
(Source: P.A. 86-737.)

    Section  99.  Effective date.  This Act takes effect upon
becoming law.