SB2030sam001 94TH GENERAL ASSEMBLY

Sen. Jacqueline Y. Collins

Filed: 4/11/2005

09400SB2030sam001 LRB094 11526 BDD 44800 a

AMENDMENT TO SENATE BILL 2030

AMENDMENT NO. ______. Amend Senate Bill 2030 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Video Game Excise Tax Act.

Section 5. Definitions. As used in this Act:

"Department" means the Department of Revenue.

"Video game" means an object or device that stores recorded data or instructions, receives data or instructions generated by a person who uses it, and, by processing the data or instructions, creates an interactive game capable of being played, viewed, or experienced on or through a computer, gaming system, console, or other technology.

Section 10. The Video Game Excise Tax Fund. The Video Game Excise Tax Fund is created as a special fund in the State treasury. From appropriations to the Department of Human Services from the Fund, the Department of Human Services must make grants to public or private entities in Illinois for the purpose of funding youth outreach programs.

Moneys received for the purposes of this Section, including, without limitation, excise tax receipts and gifts, grants, and awards from any public or private entity, must be deposited into the Fund. Any interest earned on moneys in the Fund must be deposited into the Fund.

Section 15. Excise tax imposed.

(a) Beginning January 1, 2006, each person selling video games at retail in this State shall collect from retail customers a tax of $0.25 for each video game that is sold and delivered in this State. The seller must pay the tax to the Department for deposit into the Video Game Excise Tax Fund. This tax is imposed in addition to any other tax on the sale of video games in this State.

(b) The tax collected under this Section must be stated as a distinct item separate and apart from the selling price of the video game. The tax is not be includable in the gross receipts of the retailer subject to the Retailer's Occupation Tax Act, the Use Tax Act, or any locally imposed retailer's occupation tax. The tax, and any such tax collected by a retailer, shall constitute a debt owed by the retailer to the State.

Section 20. Tax returns by retailer.

(a) Each video game retailer maintaining a place of business in this State must make a return to the Department on a quarter-annual basis, with the return for January, February, and March of a given year being due by April 30 of that year; with the return for April, May, and June of a given year being due by July 31 of that year; with the return for July, August, and September of a given year being due by October 31 of that year; and with the return for October, November, and December of a given year being due by January 31 of the following year. Each return made to the Department must state:

(1) the name of the retailer;

(2) the address of the retailer's principal place of business and the address of the principal place of business (if that is a different address) from which the retailer engages in the business of making retail sales of video games;

(3) the total number of video games sold at retail for the preceding calendar quarter;

(4) the amount of tax due; and

(5) any other reasonable information that the Department requires.

(b) Notwithstanding any other provision of this Act concerning the time within which a retailer may file his or her return, in the case of any retailer who ceases to engage in the retail sale of video games, the retailer must file a final return under this Act with the Department not more than one month after discontinuing that business.

Section 25. Application of Retailers' Occupation Tax provisions. All the provisions of Sections 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, and 11 of the Retailers' Occupation Tax Act that are not inconsistent with this Act apply, as far as practicable, to the tax imposed by Section 15 of this Act to the same extent as if those provisions were included in this Act. References in the incorporated Sections of the Retailers' Occupation Tax Act to retailers, to sellers, or to persons engaged in the business of selling tangible personal property mean retailers of video games.

Section 30. Hearing; notice. The Department may adopt and enforce any reasonable rules relating to the administration and enforcement of the tax imposed by Section 15 of this Act that are expedient.

Whenever the Department is required to provide notice to a retailer under this Act, the notice may be personally served or given by United States certified or registered mail, addressed to the retailer or taxpayer concerned at his or her last known address. Proof of this mailing is sufficient for the purposes of this Act. In the case of a notice of hearing, the notice must be mailed not less than 7 days prior to the date fixed for the hearing.

All hearings provided by the Department under this Act with respect to or concerning a taxpayer having his or her principal place of business in this State other than in Cook County shall be held at the Department's office nearest to the location of the taxpayer's principal place of business. If the taxpayer has his or her principal place of business in Cook County, the hearing shall be held in Cook County. If the taxpayer does not have his or her principal place of business in this State, the hearing shall be held in Sangamon County.

Whenever any proceeding provided by this Act has been begun by the Department or by a person subject thereto and that person subsequently dies or becomes a person under legal disability before the proceeding has been concluded, the legal representative of the deceased person or person under legal disability shall notify the Department of the death or legal disability. The legal representative, as such, shall then be substituted by the Department in place of and for the person. Within 20 days after notice to the legal representative of the time fixed for that purpose, the proceeding may proceed in all respects and with like effect as though the person had not died or become a person under legal disability.

Section 35. Administrative procedures. The Illinois Administrative Procedure Act is hereby expressly adopted and applies to all administrative rules and procedures of the Department under this Act, except that: (1) paragraph (b) of Section 4 of the Illinois Administrative Procedure Act does not apply to final orders, decisions, and opinions of the Department; (2) subparagraph (a)(2) of Section 4 of the Illinois Administrative Procedure Act does not apply to forms established by the Department for use under this Act; and (3) the provisions of Section 13 of the Illinois Administrative Procedure Act regarding proposals for decision are excluded and not applicable to the Department under this Act.

Section 40. Review under Administrative Review Law.

(a) The circuit court of any county in which a hearing is held has the power to review all final administrative decisions of the Department in administering the tax imposed under Section 15 of this Act. If, however, the administrative proceeding that is to be reviewed judicially is a claim for refund proceeding commenced under this Act and Section 2a of the State Officers and Employees Money Disposition Act, the circuit court having jurisdiction over the action for judicial review under this Section and under the Administrative Review Law shall be the same court that entered the temporary restraining order or preliminary injunction that is provided for in that Section 2a, and that enables the claim proceeding to be processed and disposed of as a claim for refund proceeding other than as a claim for credit proceeding.

(b) The provisions of the Administrative Review Law, and the rules adopted pursuant thereto, apply to and govern all proceedings for the judicial review of final administrative decisions of the Department under this Act. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(c) Service of summons issued in any action to review a final administrative decision upon the Director or Assistant Director of Revenue shall be service upon the Department. The Department shall certify the record of its proceedings if the taxpayer pays to it the sum of $0.75 per page of testimony taken before the Department and $0.25 per page of all other matters contained in the record, except that these charges may be waived if the Department is satisfied that the aggrieved party cannot afford to pay these charges.

Section 45. Penalty. Any retailer who fails to make a return, or who makes a fraudulent return, or who willfully violates any rule of the Department for the administration and enforcement of the tax imposed by Section 15 of this Act is guilty of a Class 4 felony.

Section 50. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 900. The State Finance Act is amended by changing Section 8h and adding Section 5.640 as follows:

(30 ILCS 105/5.640 new)

Sec. 5.640. The Video Game Excise Tax Fund.

(30 ILCS 105/8h)

Sec. 8h. Transfers to General Revenue Fund.

(a) Except as provided in subsection (b), notwithstanding any other State law to the contrary, the Governor may, through June 30, 2007, from time to time direct the State Treasurer and Comptroller to transfer a specified sum from any fund held by the State Treasurer to the General Revenue Fund in order to help defray the State's operating costs for the fiscal year. The total transfer under this Section from any fund in any fiscal year shall not exceed the lesser of (i) 8% of the revenues to be deposited into the fund during that fiscal year or (ii) an amount that leaves a remaining fund balance of 25% of the July 1 fund balance of that fiscal year. In fiscal year 2005 only, prior to calculating the July 1, 2004 final balances, the Governor may calculate and direct the State Treasurer with the Comptroller to transfer additional amounts determined by applying the formula authorized in Public Act 93-839 to the funds balances on July 1, 2003. No transfer may be made from a fund under this Section that would have the effect of reducing the available balance in the fund to an amount less than the amount remaining unexpended and unreserved from the total appropriation from that fund estimated to be expended for that fiscal year. This Section does not apply to any funds that are restricted by federal law to a specific use, to any funds in the Motor Fuel Tax Fund, the Hospital Provider Fund, the Medicaid Provider Relief Fund, the Video Game Excise Tax Fund, or the Reviewing Court Alternative Dispute Resolution Fund, or to any funds to which subsection (f) of Section 20-40 of the Nursing and Advanced Practice Nursing Act applies. Notwithstanding any other provision of this Section, for fiscal year 2004, the total transfer under this Section from the Road Fund or the State Construction Account Fund shall not exceed the lesser of (i) 5% of the revenues to be deposited into the fund during that fiscal year or (ii) 25% of the beginning balance in the fund. For fiscal year 2005 through fiscal year 2007, no amounts may be transferred under this Section from the Road Fund, the State Construction Account Fund, the Criminal Justice Information Systems Trust Fund, the Wireless Service Emergency Fund, or the Mandatory Arbitration Fund.

In determining the available balance in a fund, the Governor may include receipts, transfers into the fund, and other resources anticipated to be available in the fund in that fiscal year.

The State Treasurer and Comptroller shall transfer the amounts designated under this Section as soon as may be practicable after receiving the direction to transfer from the Governor.

(b) This Section does not apply to any fund established under the Community Senior Services and Resources Act.

(Source: P.A. 93-32, eff. 6-20-03; 93-659, eff. 2-3-04; 93-674, eff. 6-10-04; 93-714, eff. 7-12-04; 93-801, eff. 7-22-04; 93-839, eff. 7-30-04; 93-1054, eff. 11-18-04; 93-1067, eff. 1-15-05.)

Section 999. Effective date. This Act takes effect July 1, 2005.".