Public Act 93-0657

SB1883 Enrolled                      LRB093 08674 SJM 08904 b

    AN ACT concerning taxes.

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

    Section  5.  The Property Tax Code is amended by changing
Sections 31-5, 31-10, 31-20, and 31-25 and by adding  Section
3-46 as follows:

    (35 ILCS 200/31-5)
    Sec.  31-5.   Definitions.   "Recordation"  includes  the
issuance  of  certificates  of  title  by Registrars of Title
under the Registered Titles (Torrens)  Act  pursuant  to  the
filing  of deeds or trust documents for that purpose, as well
as the recording of deeds or trust documents by recorders.
    "Department" means the Department of Revenue.
    "Person" means any natural individual, firm, partnership,
association, joint stock company, joint adventure, public  or
private   corporation,   limited   liability  company,  or  a
receiver, executor, trustee, guardian or other representative
appointed by order of any court.
    "Value" means the amount of the full actual consideration
for the real property, including the amount of  any  lien  on
the real property assumed by the buyer.
    "Trust document" means a document required to be recorded
under the Land Trust Recordation and Transfer Tax Act.
    "Beneficial interest" includes, but is not limited to:
         (1)  the  beneficial  interest  in  an Illinois land
    trust;
         (2)  the  lessee  interest   in   a   ground   lease
    (including  any  interest  of  the  lessee in the related
    improvements) that provides for a  term  of  30  or  more
    years  when  all options to renew or extend are included,
    whether or not any portion of the term has expired; or
         (3)  the  indirect  interest  in  real  property  as
    reflected by a controlling  interest  in  a  real  estate
    entity.
    "Controlling  interest"  means  more than 50% of the fair
market  value  of  all  ownership  interests  or   beneficial
interests in a real estate entity.
    "Real  estate entity" means any person including, but not
limited to, any partnership, corporation,  limited  liability
company,  trust,  other  entity, or multi-tiered entity, that
exists or acts  substantially  for  the  purpose  of  holding
directly  or  indirectly  title  to or beneficial interest in
real property. There is  a  rebuttable  presumption  that  an
entity  is  a  real  estate  entity  if  it owns, directly or
indirectly, real property having a fair market value  greater
than  75%  of  the  total  fair  market  value  of all of the
entity's  assets,  determined  without  deduction   for   any
mortgage, lien, or encumbrance.
(Source: P.A. 92-651, eff. 7-11-02.)

    (35 ILCS 200/31-10)
    Sec.  31-10.   Imposition of tax. A tax is imposed on the
privilege of transferring title to  real  estate  located  in
Illinois,  as  represented  by  the  deed  that  is filed for
recordation,  and  on  the  privilege   of   transferring   a
beneficial interest in real property located in Illinois that
is  the  subject  of a land trust as represented by the trust
document that is filed for recordation, and on the  privilege
of  transferring  a  controlling  interest  in  a real estate
entity owning property located in Illinois, at  the  rate  of
50¢  for each $500 of value or fraction of $500 stated in the
declaration required by Section 31-25.  If, however, the deed
or trust document states that  the  real  estate,  beneficial
interest, or controlling interest is transferred subject to a
mortgage, the amount of the mortgage remaining outstanding at
the  time  of  transfer shall not be included in the basis of
computing the tax. The tax is due if the transfer is made  by
one  or  more  related  transactions  or involves one or more
persons  or  entities  and  whether  or  not  a  document  is
recorded.
(Source:  P.A.  86-624;  86-925;  86-1028;  86-1475;  87-543;
88-455.)

    (35 ILCS 200/31-20)
    Sec. 31-20.  Affixing of stamps. Payment of the tax shall
be evidenced by revenue stamps in the amount required to show
full payment of the tax imposed by Section 31-10.  Except  as
provided  in  Section  31-45, a deed, document transferring a
controlling interest in  real  property,  or  trust  document
shall not be accepted for filing by any recorder or registrar
of  titles  unless revenue stamps in the required amount have
been purchased from the recorder or registrar  of  titles  of
the   county   where   the   deed,  document  transferring  a
controlling interest in real property, or trust  document  is
being  filed  for  recordation.   The revenue stamps shall be
affixed to the  deed,  document  transferring  a  controlling
interest  in real property, or trust document by the recorder
or the registrar of titles either before or  after  recording
as  requested  by  the  grantee. A person using or affixing a
revenue stamp shall cancel it and so deface it as  to  render
it unfit for reuse by marking it with his or her initials and
the  day,  month  and  year  when  the affixing  occurs.  The
marking shall be made by writing or stamping in indelible ink
or by perforating with  a  machine  or  punch.  However,  the
revenue  stamp  shall  not  be so defaced as to prevent ready
determination of its denomination and genuineness.
(Source:  P.A.  86-624;  86-925;  86-1028;  86-1475;  87-543;
88-455.)
    (35 ILCS 200/31-25)
    Sec. 31-25.  Transfer declaration. At the time a deed,  a
document   transferring   a   controlling  interest  in  real
property, or trust document is presented for recordation,  or
within  3  business  days  after  the  transfer  is effected,
whichever is earlier, there shall also be  presented  to  the
recorder  or registrar of titles a  declaration, signed by at
least one of the sellers and also signed by at least  one  of
the  buyers  in the transaction or by the attorneys or agents
for the sellers  or  buyers.   The  declaration  shall  state
information  including,  but not limited to: (a) the value of
the real property or beneficial  interest  in  real  property
located  in  Illinois the full consideration for the property
so transferred; (b) the  parcel  identifying  number  of  the
property;  (c) the legal description of the property; (d) the
date of the deed, the date the transfer was effected, or  the
date  of  the trust document; (e) the type of deed, transfer,
or trust document; (f) the address of the property;  (g)  the
type of improvement, if any, on the property; (h) information
as  to whether the transfer is between related individuals or
corporate affiliates or is a compulsory transaction; (i)  the
lot  size or acreage; (j) the value of personal property sold
with the real estate; (k) the year the contract was initiated
if an installment  sale;  and  (l)  the  name,  address,  and
telephone  number  of  the  person preparing the declaration.
Except as provided in  Section  31-45,  a  deed,  a  document
transferring  a  controlling  interest  in  real property, or
trust document shall not be accepted for  recordation  unless
it  is  accompanied  by  a  declaration  containing  all  the
information   requested   in   the   declaration.   When  the
declaration is  signed by an attorney or agent on  behalf  of
sellers  or  buyers  who  have the power of direction to deal
with the  title  to  the  real  estate  under  a  land  trust
agreement,  the  trustee  being the mere repository of record
legal title with a duty of conveying  the  real  estate  only
when  and  if  directed  in  writing  by  the  beneficiary or
beneficiaries having the power of direction, the attorneys or
agents executing the declaration on behalf of the sellers  or
buyers  need  identify  only  the  land  trust  that  is  the
repository  of  record legal title and not the beneficiary or
beneficiaries having the power of direction  under  the  land
trust  agreement. The declaration form shall be prescribed by
the Department and shall contain sales information questions.
For sales occurring during a period in which  the  provisions
of Section 17-10 require the Department to adjust sale prices
for  seller  paid  points  and  prevailing cost of cash,  the
declaration  form  shall  contain  questions  regarding   the
financing   of  the  sale.   The  subject  of  the  financing
questions shall include any direct  seller  participation  in
the financing of the sale or information on financing that is
unconventional  so  as to affect the fair cash value received
by the  seller.   The  intent  of  the  sales  and  financing
questions  is to aid in the reduction in the number of buyers
required to provide financing information necessary  for  the
adjustment  outlined  in  Section 17-10.  For sales occurring
during a period in which  the  provisions  of  Section  17-10
require  the Department to adjust sale prices for seller paid
points and prevailing cost  of  cash,  the  declaration  form
shall  include, at a minimum, the following data:  (a) seller
paid points, (b) the  sales  price,  (c)  type  of  financing
(conventional,  VA, FHA, seller-financed, or other), (d) down
payment,  (e)  term,  (f)  interest  rate,   (g)   type   and
description   of   interest   rate   (fixed,   adjustable  or
renegotiable), and (h) an appropriate place for the inclusion
of special facts or circumstances,  if  any.  The  Department
shall  provide  an  adequate supply of forms to each recorder
and registrar of titles in the State.
(Source: P.A. 91-555, eff. 1-1-00.)
    (35 ILCS 200/31-46 new)
    Sec.  31-46.  Exemption  from  tax  equal  to   corporate
franchise taxes paid. If a transfer of a controlling interest
in  a  real estate entity is taxed under this Article and the
real estate entity liable for the tax under this  Article  is
also  liable for corporate franchise taxes under the Business
Corporation Act of 1983 as a result of the transfer, then the
real estate entity is exempt  from  paying  the  tax  imposed
under  this  Article to the extent of the corporate franchise
tax paid by the  real  estate  entity  as  a  result  of  the
transfer.  The  exemption  shall  not  reduce the real estate
entity's tax liability under this Article to less than zero.

    Section 10.  The Stock, Commodity, or Options Transaction
Tax Exemption Act is amended by adding Section 3 as follows:

    (35 ILCS 820/3 new)
    Sec. 3.  Construction of Act. Nothing in this  Act  shall
be  construed  as  prohibiting  or otherwise invalidating any
real estate transfer tax or fee authorized  or  permitted  by
Section  31-10  of the Property Tax Code, Section 5-1031.1 of
the  Counties  Code,  or  Section  8-3-19  of  the   Illinois
Municipal  Code.  This Section is intended as a clarification
and not as a change to existing law.

    Section 15.  The Counties Code  is  amended  by  changing
Section 5-1031.1 as follows:

    (55 ILCS 5/5-1031.1)
    Sec. 5-1031.1. Home rule real estate transfer taxes.
    (a)  After  the  effective date of this amendatory Act of
the 93rd General Assembly 1996 and subject to this Section, a
home rule county may impose or increase a tax or other fee on
the privilege  of  transferring  title  to  real  estate,  as
represented by the deed that is filed for recordation, and on
the privilege of transferring a beneficial interest in a land
trust  holding  legal  title  to  real  property,  and on the
privilege of transferring a controlling interest  in  a  real
estate   entity,   as   the   terms   "beneficial  interest",
"controlling interest", and "real estate entity" are  defined
in  Article 31 of the Property Tax Code as represented by the
trust document that is filed for recordation.  Such a tax  or
other  fee  on  the  privilege  of transferring title to real
estate,  as  represented  by  the  deed  that  is  filed  for
recordation,  and  on  the  privilege   of   transferring   a
beneficial  interest  in  a land trust holding legal title to
real property, as represented by the trust document  that  is
filed  for  recordation,  shall hereafter be referred to as a
real estate transfer tax.
    (b)  Before adopting a resolution to submit the  question
of  imposing  or  increasing  a  real  estate transfer tax to
referendum,  the  corporate  authorities  shall  give  public
notice of and hold a public hearing on the intent  to  submit
the  question  to  referendum.  This hearing may be part of a
regularly scheduled meeting  of  the  corporate  authorities.
The  notice shall be published not more than 30 nor less than
10 days prior to  the  hearing  in  a  newspaper  of  general
circulation within the county.  The notice shall be published
in the following form:
         Notice  of Proposed (Increased) Real Estate Transfer
    Tax for (commonly known name of county).
         A public  hearing  on  a  resolution  to  submit  to
    referendum  the  question  of a proposed (increased) real
    estate transfer tax for (legal name of the county) in  an
    amount  of (rate) to be paid by the buyer (seller) of the
    real estate transferred will be held on (date) at  (time)
    at  (location).  The current rate of real estate transfer
    tax imposed by (name of county) is (rate).
         Any person desiring to appear at the public  hearing
    and present testimony to the taxing district may do so.
    (c)  A notice that includes any information not specified
and  required  by  this  Section  is  an invalid notice.  All
hearings shall be open to the public.  At the public hearing,
the corporate authorities of the  county  shall  explain  the
reasons  for  the  proposed or increased real estate transfer
tax  and  shall  permit  persons  desiring  to  be  heard  an
opportunity  to  present  testimony  within  reasonable  time
limits determined by the corporate authorities.   A  copy  of
the proposed ordinance shall be made available to the general
public for inspection before the public hearing.
    (d)  No  home  rule county shall impose a new real estate
transfer tax after the effective date of this amendatory  Act
of  1996  without prior approval by referendum.  No home rule
county shall impose an increase of the rate of a current real
estate transfer tax without prior approval by referendum.   A
home rule county may impose a new real estate transfer tax or
may  increase an existing real estate transfer tax with prior
referendum approval.  The referendum shall  be  conducted  as
provided   in   subsection  (e).  An  existing  ordinance  or
resolution imposing a real estate transfer tax may be amended
without approval by referendum  if  the  amendment  does  not
increase the rate of the tax or add transactions on which the
tax is imposed.
    (e)  The  home  rule county shall, by resolution, provide
for submission of the proposition to the  voters.   The  home
rule  county shall certify the resolution and the proposition
to the proper  election  officials  in  accordance  with  the
general  election law.  If the proposition is to impose a new
real estate transfer tax, it shall be  in  substantially  the
following form:  "Shall (name of county) impose a real estate
transfer  tax  at  a  rate  of (rate) to be paid by the buyer
(seller) of the real estate transferred, with the revenue  of
the proposed transfer tax to be used for (purpose)?".  If the
proposition  is  to increase an existing real estate transfer
tax, it shall be in the  following  form:   "Shall  (name  of
county)  impose  a  real  estate  transfer  tax  increase  of
(percent  increase)  to  establish a new real estate transfer
tax rate of (rate) to be paid by the buyer  (seller)  of  the
real estate transferred?  The current rate of the real estate
transfer   tax  is  (rate),  and  the  revenue  is  used  for
(purpose).  The revenue from the increase is to be  used  for
(purpose).".
    If  a  majority of the electors voting on the proposition
vote in favor of it, the county may impose  or  increase  the
real estate transfer tax.
    (f)  Nothing  in  this amendatory Act of 1996 shall limit
the purposes for which real estate transfer tax revenues  may
be collected or expended.
    (g)  A  home  rule  county  may  not  impose  real estate
transfer taxes other than as authorized by this Section. This
Section is a denial and limitation of home  rule  powers  and
functions under subsection (g) of Section 6 of Article VII of
the Illinois Constitution.
    (h)  Notwithstanding  subsection (g) of this Section, any
real estate transfer taxes adopted by a county  at  any  time
prior  to  January 17, 1997 (the effective date of Public Act
89-701) and  any  amendments  to  any  existing  real  estate
transfer tax ordinance adopted after that date, in accordance
with  the  law  in  effect at the time of the adoption of the
amendments, are not preempted by this amendatory Act  of  the
93rd General Assembly.
(Source: P.A. 89-701, eff. 1-17-97; 90-14, eff. 7-1-97.)

    Section  20.   The  Illinois Municipal Code is amended by
changing Section 8-3-19 as follows:
    (65 ILCS 5/8-3-19)
    Sec. 8-3-19.  Home rule real estate transfer taxes.
    (a)  After the effective date of this amendatory  Act  of
the 93rd General Assembly 1996 and subject to this Section, a
home  rule municipality may impose or increase a tax or other
fee on the privilege of transferring title to real estate, as
represented by the deed that is filed for recordation, and on
the privilege of transferring a beneficial interest in a land
trust holding legal  title  to  real  property,  and  on  the
privilege  of  transferring  a controlling interest in a real
estate  entity,   as   the   terms   "beneficial   interest",
"controlling  interest", and "real estate entity" are defined
in Article 31 of the Property Tax Code as represented by  the
trust  document that is filed for recordation.  Such a tax or
other fee on the privilege  of  transferring  title  to  real
estate,  as  represented  by  the  deed  that  is  filed  for
recordation,   and   on   the  privilege  of  transferring  a
beneficial interest in a land trust holding  legal  title  to
real  property,  as represented by the trust document that is
filed for recordation, shall hereafter be referred  to  as  a
real estate transfer tax.
    (b)  Before  adopting a resolution to submit the question
of imposing or increasing  a  real  estate  transfer  tax  to
referendum,  the  corporate  authorities  shall  give  public
notice  of  and hold a public hearing on the intent to submit
the question to referendum.  This hearing may be  part  of  a
regularly  scheduled  meeting  of  the corporate authorities.
The notice shall be published not more than 30 nor less  than
10  days  prior  to  the  hearing  in  a newspaper of general
circulation within the municipality.   The  notice  shall  be
published in the following form:
         Notice  of Proposed (Increased) Real Estate Transfer
    Tax for (commonly known name of municipality).
         A public  hearing  on  a  resolution  to  submit  to
    referendum  the  question  of a proposed (increased) real
    estate transfer tax for (legal name of the  municipality)
    in  an  amount of (rate) to be paid by the buyer (seller)
    of the real estate transferred will be held on (date)  at
    (time)  at  (location).  The  current rate of real estate
    transfer tax imposed by (name of municipality) is (rate).
         Any person desiring to appear at the public  hearing
    and present testimony to the taxing district may do so.
    (c)  A notice that includes any information not specified
and  required  by  this  Section  is  an  invalid notice. All
hearings shall be open to the public. At the public  hearing,
the  corporate  authorities of the municipality shall explain
the  reasons  for  the  proposed  or  increased  real  estate
transfer tax and shall permit persons desiring to be heard an
opportunity  to  present  testimony  within  reasonable  time
limits determined by the corporate authorities. A copy of the
proposed ordinance shall be made  available  to  the  general
public for inspection before the public hearing.
    (d)  No  home  rule  municipality shall impose a new real
estate  transfer  tax  after  the  effective  date  of   this
amendatory  Act of 1996 without prior approval by referendum.
No home rule municipality shall impose  an  increase  of  the
rate  of  a  current  real  estate transfer tax without prior
approval by referendum.  A home rule municipality may  impose
a  new  real  estate transfer tax or may increase an existing
real estate transfer tax with prior referendum approval.  The
referendum shall be conducted as provided in subsection  (e).
An  existing  ordinance  or resolution imposing a real estate
transfer tax may be amended without approval by referendum if
the amendment does not increase the rate of the  tax  or  add
transactions on which the tax is imposed.
    (e)  The  home  rule  municipality  shall, by resolution,
provide for submission of the proposition to the voters.  The
home rule municipality shall certify the resolution  and  the
proposition  to  the  proper election officials in accordance
with the general election law.   If  the  proposition  is  to
impose  a  new  real  estate  transfer  tax,  it  shall be in
substantially  the   following   form:    "Shall   (name   of
municipality)  impose a real estate transfer tax at a rate of
(rate) to be paid by the buyer (seller) of  the  real  estate
transferred, with the revenue of the proposed transfer tax to
be  used  for (purpose)?".  If the proposition is to increase
an existing real estate transfer tax,  it  shall  be  in  the
following  form:  "Shall (name of municipality) impose a real
estate  transfer  tax  increase  of  (percent  increase)   to
establish a new transfer tax rate of (rate) to be paid by the
buyer  (seller)  of the real estate transferred?  The current
rate of the real estate  transfer  tax  is  (rate),  and  the
revenue is used for (purpose).  The revenue from the increase
is to be used for (purpose).".
    If  a  majority of the electors voting on the proposition
vote in favor of it, the municipality may impose or  increase
the municipal real estate transfer tax or fee.
    (f)  Nothing  in  this amendatory Act of 1996 shall limit
the purposes for which real estate transfer tax revenues  may
be collected or expended.
    (g)  A  home rule municipality may not impose real estate
transfer taxes other than as authorized by this Section. This
Section is a denial and limitation of home  rule  powers  and
functions under subsection (g) of Section 6 of Article VII of
the Illinois Constitution.
    (h)  Notwithstanding  subsection (g) of this Section, any
real estate transfer taxes adopted by a municipality  at  any
time  prior to January 17, 1997 (the effective date of Public
Act 89-701) and any amendments to any  existing  real  estate
transfer tax ordinance adopted after that date, in accordance
with  the  law  in  effect at the time of the adoption of the
amendments, are not preempted by this amendatory Act  of  the
93rd  General Assembly.
(Source: P.A. 89-701, eff. 1-17-97.)