SB3175 94TH GENERAL ASSEMBLY

LRB094 19785 BDD 56558 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB3175

Introduced 2/27/2006, by Sen. Steven J. Rauschenberger

SYNOPSIS AS INTRODUCED:

35 ILCS 630/1	from Ch. 120, par. 2001
35 ILCS 630/1.5 new
35 ILCS 630/2	from Ch. 120, par. 2002
35 ILCS 630/3	from Ch. 120, par. 2003
35 ILCS 630/4	from Ch. 120, par. 2004
35 ILCS 630/4.3 new
35 ILCS 630/5	from Ch. 120, par. 2005
35 ILCS 630/6	from Ch. 120, par. 2006
35 ILCS 630/8	from Ch. 120, par. 2008
35 ILCS 630/8.5 new
35 ILCS 630/9	from Ch. 120, par. 2009
35 ILCS 630/9.5 new
35 ILCS 630/10	from Ch. 120, par. 2010
35 ILCS 630/20	from Ch. 120, par. 2020
35 ILCS 635/15
35 ILCS 636/5-5
35 ILCS 636/5-10

Amends the Telecommunications Excise Tax Act. Changes the short title of the Act to the Telecommunications and Video Entertainment Excise Tax Act. Deletes a provision that the tax proceeds must be used for general revenue and education purposes. Imposes the excise tax on video entertainment. Provides that the rate of tax under the Act is the combined sales tax rate for general merchandise in each local jurisdiction, as published in the Department of Revenue's sales tax reference manual. Creates a credit for video entertainment providers equal to the amount of municipal franchise fees. Provides that certain waiver provisions set forth in the Simplified Municipal Telecommunications Tax Act apply to this Act. Amends the Telecommunications Infrastructure maintenance Fee Act. Repeals a Section concerning the imposition of telecommunications infrastructure maintenance fees. Amends the Simplified Municipal Telecommunications Tax Act. Repeals a Section authorizing municipalities to impose a tax on certain acts or privileges. Effective January 1, 2007.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning revenue.

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

Section 5. The Telecommunications Excise Tax Act is amended by changing Sections 1, 2, 3, 4, 5, 6, 8, 9, 10, and 20 and by adding Sections 1.5, 4.3, 8.5, and 9.5 as follows:

(35 ILCS 630/1) (from Ch. 120, par. 2001)

Sec. 1. This Article shall be known and may be cited as the "Telecommunications and Video Entertainment Excise Tax Act". The net proceeds from the taxes imposed by this Act shall be used for the support of the General Revenue Fund and education.

(Source: P.A. 84-126.)

(35 ILCS 630/1.5 new)

Sec. 1.5. Legislative intent.

(a) The General Assembly has authorized the State and corporate authorities of municipalities to impose various fees and taxes on the privilege of originating or receiving telecommunications and on retailers engaged in the business of transmitting such telecommunications. This has resulted in a heavy tax burden which, in many cases, exceeds the tax rate levied on general merchandise. Additionally, the competitive environment of telecommunications and video is changing rapidly. Traditional video providers are now offering telecommunications and traditional telecommunications providers are now offering video services. Under the current tax system, video and telecommunications have varying tax burdens. Therefore, the General Assembly is repealing the simplified municipal telecommunications tax and the State infrastructure maintenance fee and is enacting the State telecommunications and video entertainment excise tax.

(b) The enactment of this amendatory Act of the 94th General Assembly and the repeal of the simplified municipal telecommunications tax does not give municipalities the authority to levy new fees, charges, or other compensation for the use of the public right-of-way by telecommunications retailers. The waiver of franchise fees under Section 5-60 of the Simplified Municipal Telecommunications Tax Act shall carry forward to this Act even though the simplified municipal telecommunications tax is repealed. Additionally, the legislative intent in Section 5 of the Telecommunications Infrastructure Maintenance Fee Act with regard to franchise fees should be read in concert with the legislative intent found in Section 5-5 of the Simplified Municipal Telecommunications Tax Act with regard to the simplified municipal telecommunications tax.

(35 ILCS 630/2) (from Ch. 120, par. 2002)

Sec. 2. As used in this Article, unless the context clearly requires otherwise:

(a) "Gross charge" means the amount paid for the act or privilege of originating or receiving telecommunications or video entertainment in this State and for all services and equipment provided in connection therewith by a retailer, valued in money whether paid in money or otherwise, including cash, credits, services and property of every kind or nature, and shall be determined without any deduction on account of the cost of such telecommunications or video entertainment, the cost of materials used, labor or service costs or any other expense whatsoever. In case credit is extended, the amount thereof shall be included only as and when paid. "Gross charges" for private line service shall include charges imposed at each channel termination point within this State, charges for the channel mileage between each channel termination point within this State, and charges for that portion of the interstate inter-office channel provided within Illinois. Charges for that portion of the interstate inter-office channel provided in Illinois shall be determined by the retailer as follows: (i) for interstate inter-office channels having 2 channel termination points, only one of which is in Illinois, 50% of the total charge imposed; or (ii) for interstate inter-office channels having more than 2 channel termination points, one or more of which are in Illinois, an amount equal to the total charge multiplied by a fraction, the numerator of which is the number of channel termination points within Illinois and the denominator of which is the total number of channel termination points. Prior to January 1, 2004, any method consistent with this paragraph or other method that reasonably apportions the total charges for interstate inter-office channels among the states in which channel terminations points are located shall be accepted as a reasonable method to determine the charges for that portion of the interstate inter-office channel provided within Illinois for that period. However, "gross charges" shall not include any of the following:

(1) Any amounts added to a purchaser's bill because of a charge made pursuant to (i) the tax imposed by this Article; (ii) charges added to customers' bills pursuant to the provisions of Sections 9-221 or 9-222 of the Public Utilities Act, as amended, or any similar charges added to customers' bills by retailers who are not subject to rate regulation by the Illinois Commerce Commission for the purpose of recovering any of the tax liabilities or other amounts specified in such provisions of such Act; (iii) the tax imposed by Section 4251 of the Internal Revenue Code; (iv) 911 surcharges; or (v) the tax imposed by the Simplified Municipal Telecommunications Tax Act.

(2) Charges for a sent collect telecommunication received outside of the State.

(3) Charges for leased time on equipment or charges for the storage of data or information for subsequent retrieval or the processing of data or information intended to change its form or content. Such equipment includes, but is not limited to, the use of calculators, computers, data processing equipment, tabulating equipment or accounting equipment and also includes the usage of computers under a time-sharing agreement.

(4) Charges for customer equipment, including such equipment that is leased or rented by the customer from any source, wherein such charges are disaggregated and separately identified from other charges.

(5) Charges to business enterprises certified under Section 9-222.1 of the Public Utilities Act, as amended, to the extent of such exemption and during the period of time specified by the Department of Commerce and Economic Opportunity Community Affairs.

(6) Charges for telecommunications and video entertainment and all services and equipment provided in connection therewith between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries when the tax imposed under this Article has already been paid to a retailer and only to the extent that the charges between the parent corporation and wholly owned subsidiaries or between wholly owned subsidiaries represent expense allocation between the corporations and not the generation of profit for the corporation rendering such service.

(7) Bad debts. Bad debt means any portion of a debt that is related to a sale at retail for which gross charges are not otherwise deductible or excludable that has become worthless or uncollectable, as determined under applicable federal income tax standards. If the portion of the debt deemed to be bad is subsequently paid, the retailer shall report and pay the tax on that portion during the reporting period in which the payment is made.

(8) Charges paid by inserting coins in coin-operated telecommunication devices.

(9) Amounts paid by telecommunications retailers under the Telecommunications Municipal Infrastructure Maintenance Fee Act.

(10) Charges for nontaxable services or telecommunications if (i) those charges are aggregated with other charges for telecommunications that are taxable, (ii) those charges are not separately stated on the customer bill or invoice, and (iii) the retailer can reasonably identify the nontaxable charges on the retailer's books and records kept in the regular course of business. If the nontaxable charges cannot reasonably be identified, the gross charge from the sale of both taxable and nontaxable services or telecommunications billed on a combined basis shall be attributed to the taxable services or telecommunications. The burden of proving nontaxable charges shall be on the retailer of the telecommunications.

(b) "Amount paid" means the amount charged to the taxpayer's service address in this State regardless of where such amount is billed or paid.

(c) "Telecommunications", in addition to the meaning ordinarily and popularly ascribed to it, includes, without limitation, messages or information transmitted through use of local, toll and wide area telephone service; private line services; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber-optics, laser, microwave, radio, satellite or similar facilities. As used in this Act, "private line" means a dedicated non-traffic sensitive service for a single customer, that entitles the customer to exclusive or priority use of a communications channel or group of channels, from one or more specified locations to one or more other specified locations. The definition of "telecommunications" shall not include value added services in which computer processing applications are used to act on the form, content, code and protocol of the information for purposes other than transmission. "Telecommunications" shall not include purchases of telecommunications by a telecommunications service provider for use as a component part of the service provided by him to the ultimate retail consumer who originates or terminates the taxable end-to-end communications. Carrier access charges, right of access charges, charges for use of inter-company facilities, and all telecommunications resold in the subsequent provision of, used as a component of, or integrated into end-to-end telecommunications service shall be non-taxable as sales for resale.

(d) "Interstate telecommunications" means all telecommunications that either originate or terminate outside this State.

(e) "Intrastate telecommunications" means all telecommunications that originate and terminate within this State.

(f) "Department" means the Department of Revenue of the State of Illinois.

(g) "Director" means the Director of Revenue for the Department of Revenue of the State of Illinois.

(h) "Taxpayer" means a person who individually or through his agents, employees or permittees engages in the act or privilege of originating or receiving telecommunications in this State and who incurs a tax liability under this Article.

(i) "Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation, limited liability company, or a receiver, trustee, guardian or other representative appointed by order of any court, the Federal and State governments, including State universities created by statute or any city, town, county or other political subdivision of this State.

(j) "Purchase at retail" means the acquisition, consumption or use of telecommunication through a sale at retail.

(k) "Sale at retail" means the transmitting, supplying or furnishing of telecommunications or video entertainment and all services and equipment provided in connection therewith for a consideration to persons other than the Federal and State governments, and State universities created by statute and other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries for their use or consumption and not for resale.

(l) "Retailer" means and includes every person engaged in the business of making sales at retail as defined in this Article. The Department may, in its discretion, upon application, authorize the collection of the tax hereby imposed by any retailer not maintaining a place of business within this State, who, to the satisfaction of the Department, furnishes adequate security to insure collection and payment of the tax. Such retailer shall be issued, without charge, a permit to collect such tax. When so authorized, it shall be the duty of such retailer to collect the tax upon all of the gross charges for telecommunications or video entertainment in this State in the same manner and subject to the same requirements as a retailer maintaining a place of business within this State. The permit may be revoked by the Department at its discretion.

(m) "Retailer maintaining a place of business in this State", or any like term, means and includes any retailer having or maintaining within this State, directly or by a subsidiary, an office, distribution facilities, transmission facilities, sales office, warehouse or other place of business, or any agent or other representative operating within this State under the authority of the retailer or its subsidiary, irrespective of whether such place of business or agent or other representative is located here permanently or temporarily, or whether such retailer or subsidiary is licensed to do business in this State.

(n) "Service address" means the location of telecommunications or video entertainment equipment from which the telecommunications services are originated or at which telecommunications or video entertainment services are received by a taxpayer. In the event this may not be a defined location, as in the case of mobile phones, paging systems, and maritime systems, service address means the customer's place of primary use as defined in the Mobile Telecommunications Sourcing Conformity Act. For air-to-ground systems and the like, service address shall mean the location of a taxpayer's primary use of the telecommunications equipment as defined by telephone number, authorization code, or location in Illinois where bills are sent.

(o) "Prepaid telephone calling arrangements" mean the right to exclusively purchase telephone or telecommunications services that must be paid for in advance and enable the origination of one or more intrastate, interstate, or international telephone calls or other telecommunications using an access number, an authorization code, or both, whether manually or electronically dialed, for which payment to a retailer must be made in advance, provided that, unless recharged, no further service is provided once that prepaid amount of service has been consumed. Prepaid telephone calling arrangements include the recharge of a prepaid calling arrangement. For purposes of this subsection, "recharge" means the purchase of additional prepaid telephone or telecommunications services whether or not the purchaser acquires a different access number or authorization code. "Prepaid telephone calling arrangement" does not include an arrangement whereby a customer purchases a payment card and pursuant to which the service provider reflects the amount of such purchase as a credit on an invoice issued to that customer under an existing subscription plan.

(p) "Video entertainment" means providing a video service, for a fee, which regularly amplifies and transmits by wire, coaxial cable, lightwave, or microwave, to 50 or more subscribers, programs broadcast by television or radio stations or originated by themselves or any other party. "Video entertainment" does not include a master antenna system which serves one residential, commercial, or government building or complex of buildings under common ownership or control if that facility does not provide any broadcast signals other than those which may be viewed in that facility.

(Source: P.A. 92-474, eff. 8-1-02; 92-526, eff. 1-1-03; 92-878, eff. 1-1-04; 93-286, 1-1-04; revised 12-6-03.)

(35 ILCS 630/3) (from Ch. 120, par. 2003)

Sec. 3. Until December 31, 1997, a tax is imposed upon the act or privilege of originating or receiving intrastate telecommunications by a person in this State at the rate of 5% of the gross charge for such telecommunications purchased at retail from a retailer by such person. Beginning January 1, 1998, a tax is imposed upon the act or privilege of originating in this State or receiving in this State intrastate telecommunications by a person in this State at the rate of 7% of the gross charge for such telecommunications purchased at retail from a retailer by such person. However, such tax is not imposed on the act or privilege to the extent such act or privilege may not, under the Constitution and statutes of the United States, be made the subject of taxation by the State. Beginning January 1, 2001, prepaid telephone calling arrangements shall not be considered telecommunications subject to the tax imposed under this Act. Beginning January 1, 2007, the tax imposed by this Section shall be levied at the rate determined in Section 4.3 and shall also be levied on intrastate video entertainment.

(Source: P.A. 90-548, eff. 12-4-97; 91-870, eff. 6-22-00.)

(35 ILCS 630/4) (from Ch. 120, par. 2004)

Sec. 4. Until December 31, 1997, a tax is imposed upon the act or privilege of originating in this State or receiving in this State interstate telecommunications by a person in this State at the rate of 5% of the gross charge for such telecommunications purchased at retail from a retailer by such person. Beginning January 1, 1998, a tax is imposed upon the act or privilege of originating in this State or receiving in this State interstate telecommunications by a person in this State at the rate of 7% of the gross charge for such telecommunications purchased at retail from a retailer by such person. To prevent actual multi-state taxation of the act or privilege that is subject to taxation under this paragraph, any taxpayer, upon proof that that taxpayer has paid a tax in another state on such event, shall be allowed a credit against the tax imposed in this Section 4 to the extent of the amount of such tax properly due and paid in such other state. However, such tax is not imposed on the act or privilege to the extent such act or privilege may not, under the Constitution and statutes of the United States, be made the subject of taxation by the State. Beginning on January 1, 2001, prepaid telephone calling arrangements shall not be considered telecommunications subject to the tax imposed under this Act. Beginning January 1, 2007, the tax imposed by this Section shall be levied at the rate determined in Section 4.3 and shall also be levied on intrastate video entertainment.

(Source: P.A. 90-548, eff. 12-4-97; 91-870, eff. 6-22-00.)

(35 ILCS 630/4.3 new)

Sec. 4.3. Beginning January 1, 2007, the tax rate imposed in Sections 3 and 4 shall be the combined sales tax rate for general merchandise in each local jurisdiction, as published in the Department's sales tax reference manual.

(35 ILCS 630/5) (from Ch. 120, par. 2005)

Sec. 5. Any retailer maintaining a place of business in this State shall collect and remit to the Department the tax imposed by this Act. Any such retailer shall be liable for the tax whether or not the tax has been collected by the retailer. To the extent that a retailer required to collect the tax imposed by this Act has actually collected that tax, such tax is held in trust for the benefit of the Department. Retailers shall collect the tax from the taxpayer by adding the tax to the gross charge for the act or privilege of originating or receiving telecommunications or video entertainment in this State, when sold for use, in the manner prescribed by the Department. Whenever possible, the tax imposed by this Article shall, when collected, be stated as a distinct item separate and apart from the gross charge for telecommunications or video entertainment. The tax imposed by this Article shall constitute a debt of the purchaser to the retailer who provides such taxable services until paid, and, if unpaid, is recoverable at law in the same manner as the original charge for such taxable services.

(Source: P.A. 91-203, eff. 7-20-99.)

(35 ILCS 630/6) (from Ch. 120, par. 2006)

Sec. 6. Returns and payments of tax. Except as provided hereinafter in this Section, on or before the last day of each month, each retailer maintaining a place of business in this State shall make a return to the Department for the preceding calendar month, stating:

1. His name;

2. The address of his principal place of business, or the address of the principal place of business (if that is a different address) from which he engages in the business of transmitting telecommunications or video entertainment;

3. Total amount of gross charges billed by him during the preceding calendar month for providing telecommunications or video entertainment during such calendar month;

4. Total amount received by him during the preceding calendar month on credit extended;

5. Deductions allowed by law;

6. Gross charges which were billed by him during the preceding calendar month and upon the basis of which the tax is imposed;

7. Amount of tax (computed upon Item 6) and credits to tax;

8. Such other reasonable information as the Department may require.

Any taxpayer required to make payments under this Section may make the payments by electronic funds transfer. The Department shall adopt rules necessary to effectuate a program of electronic funds transfer. Any taxpayer who has average monthly tax billings due to the Department under this Act and the Simplified Municipal Telecommunications Tax Act that exceed $1,000 shall make all payments by electronic funds transfer as required by rules of the Department and shall file the return required by this Section by electronic means as required by rules of the Department.

If the retailer's average monthly tax billings due to the Department under this Act and the Simplified Municipal Telecommunications Tax Act do not exceed $1,000, the Department may authorize his returns to be filed on a quarter annual basis, with the return for January, February and March of a given year being due by April 30 of such year; with the return for April, May and June of a given year being due by July 31st of such year; with the return for July, August and September of a given year being due by October 31st of such year; and with the return of October, November and December of a given year being due by January 31st of the following year.

If the retailer is otherwise required to file a monthly or quarterly return and if the retailer's average monthly tax billings due to the Department under this Act and the Simplified Municipal Telecommunications Tax Act do not exceed $400, the Department may authorize his or her return to be filed on an annual basis, with the return for a given year being due by January 31st of the following year.

Notwithstanding any other provision of this Article containing the time within which a retailer may file his return, in the case of any retailer who ceases to engage in a kind of business which makes him responsible for filing returns under this Article, such retailer shall file a final return under this Article with the Department not more than one month after discontinuing such business.

In making such return, the retailer shall determine the value of any consideration other than money received by him and he shall include such value in his return. Such determination shall be subject to review and revision by the Department in the manner hereinafter provided for the correction of returns.

Each retailer whose average monthly liability to the Department under this Article and the Simplified Municipal Telecommunications Tax Act was $25,000 or more during the preceding calendar year, excluding the month of highest liability and the month of lowest liability in such calendar year, and who is not operated by a unit of local government, shall make estimated payments to the Department on or before the 7th, 15th, 22nd and last day of the month during which tax collection liability to the Department is incurred in an amount not less than the lower of either 22.5% of the retailer's actual tax collections for the month or 25% of the retailer's actual tax collections for the same calendar month of the preceding year. The amount of such quarter monthly payments shall be credited against the final liability of the retailer's return for that month. Any outstanding credit, approved by the Department, arising from the retailer's overpayment of its final liability for any month may be applied to reduce the amount of any subsequent quarter monthly payment or credited against the final liability of the retailer's return for any subsequent month. If any quarter monthly payment is not paid at the time or in the amount required by this Section, the retailer shall be liable for penalty and interest on the difference between the minimum amount due as a payment and the amount of such payment actually and timely paid, except insofar as the retailer has previously made payments for that month to the Department in excess of the minimum payments previously due.

The retailer making the return herein provided for shall, at the time of making such return, pay to the Department the amount of tax herein imposed, less a discount of 1% which is allowed to reimburse the retailer for the expenses incurred in keeping records, billing the customer, preparing and filing returns, remitting the tax, and supplying data to the Department upon request. No discount may be claimed by a retailer on returns not timely filed and for taxes not timely remitted. On and after the effective date of this Article of 1985, $1,000,000 of the moneys received by the Department of Revenue pursuant to this Article shall be paid each month into the Common School Fund and the remainder into the General Revenue Fund. On and after February 1, 1998, however, of the moneys received by the Department of Revenue pursuant to the additional taxes imposed by this amendatory Act of 1997 one-half shall be deposited into the School Infrastructure Fund and one-half shall be deposited into the Common School Fund. On and after the effective date of this amendatory Act of the 91st General Assembly, if in any fiscal year the total of the moneys deposited into the School Infrastructure Fund under this Act is less than the total of the moneys deposited into that Fund from the additional taxes imposed by Public Act 90-548 during fiscal year 1999, then, as soon as possible after the close of the fiscal year, the Comptroller shall order transferred and the Treasurer shall transfer from the General Revenue Fund to the School Infrastructure Fund an amount equal to the difference between the fiscal year total deposits and the total amount deposited into the Fund in fiscal year 1999.

(Source: P.A. 91-541, eff. 8-13-99; 91-870, 6-22-00; 92-526, eff. 1-1-03.)

(35 ILCS 630/8) (from Ch. 120, par. 2008)

Sec. 8. Resellers of telecommunications or video entertainment; resale number. If a person who originates or receives telecommunications or video entertainment in this State claims to be a reseller of such telecommunications or video entertainment, such person shall apply to the Department for a resale number. Such applicant shall state facts which will show the Department why such applicant is not liable for tax under this Article on any of his purchases and shall furnish such additional information as the Department may reasonably require.

Upon approval of the application, the Department shall assign a resale number to the applicant and shall certify such number to him. The Department may cancel any such number which is obtained through misrepresentation, or which is used to originate or receive such telecommunications or video entertainment tax-free when such actions in fact are not for resale, or which no longer applies because of the person's having discontinued the making of resales.

Except as provided hereinabove in this Section, the act or privilege of originating or receiving telecommunications or video entertainment in this State shall not be made tax-free on the ground of being a sale for resale unless the person has an active resale number from the Department and furnishes that number to the retailer in connection with certifying to the retailer that any sale to such person is nontaxable because of being a sale for resale.

(Source: P.A. 84-126.)

(35 ILCS 630/8.5 new)

Sec. 8.5. Credit for local franchise fees. A video entertainment provider that owes municipal franchise fees for providing video entertainment may take a credit against the tax imposed by this Act. The credit shall be equal to the sum total of all franchise fees owed throughout the State and shall be credited against the liability under this Act for the tax period covered by the return.

(35 ILCS 630/9) (from Ch. 120, par. 2009)

Sec. 9. All of the provisions of Sections 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i, 5j, 6b, and 6c of the Retailers' Occupation Tax Act, which are not inconsistent with this Act, and Section 3-7 of the Uniform Penalty and Interest Act, shall apply, as far as practicable, to the subject matter of this Act to the same extent as if such provisions were included herein. References in such 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, as defined in this Article, or persons engaged in the act or privilege of originating or receiving telecommunications or video entertainment. References in such incorporated Sections of the Retailers' Occupation Tax Act to purchasers of tangible personal property mean purchasers of telecommunications or video entertainment as defined in this Article. References in such incorporated Sections of the Retailers' Occupation Tax Act to sales of tangible personal property mean the act or privilege of originating or receiving telecommunications or video entertainment as defined in this Article.

(Source: P.A. 90-491, eff. 1-1-98.)

(35 ILCS 630/9.5 new)

Sec. 9.5. Waivers. The waiver provisions of Section 5-60 of the Simplified Municipal Telecommunications Tax Act apply to telecommunication providers under this Act and the intent provided in Section 5 of the Telecommunications Infrastructure Maintenance Fee Act shall apply to this Act as if such provisions were included herein.

(35 ILCS 630/10) (from Ch. 120, par. 2010)

Sec. 10. If it shall appear that an amount of tax or penalty or interest has been paid in error hereunder to the Department by a taxpayer, as distinguished from the retailer, whether such amount be paid through a mistake of fact or an error of law, such taxpayer may file a claim for credit or refund with the Department. If it shall appear that an amount of tax or penalty or interest has been paid in error to the Department hereunder by a retailer who is required or authorized to collect and remit the tax imposed by this Article, whether such amount be paid through a mistake of fact or an error of law, such retailer may file a claim for credit or refund with the Department, provided that no credit or refund shall be allowed for any amount paid by any such retailer unless it shall appear that he bore the burden of such amount and did not shift the burden thereof to anyone else, or unless it shall appear that he or she or his or her legal representative has unconditionally repaid such amount to his customer (1) who bore the burden thereof and has not shifted such burden directly or indirectly in any manner whatsoever; or (2) who, if he or she shifted such burden, has repaid unconditionally such amount to his or her own customer; and (3) who is not entitled to receive any reimbursement therefor from any other source than from his retailer, nor to be relieved of such burden in any other manner whatsoever.

If it is determined that the Department should issue a credit or refund under this Article, the Department may first apply the amount thereof against any amount of tax or penalty or interest due hereunder from the person entitled to such credit or refund. For this purpose, if proceedings are pending to determine whether or not any tax or penalty or interest is due under this Article from such person, the Department may withhold issuance of the credit or refund pending the final disposition of such proceedings and may apply such credit or refund against any amount found to be due to the Department as a result of such proceedings. The balance, if any, of the credit or refund shall be issued to the person entitled thereto.

If no tax or penalty or interest is due and no proceeding is pending to determine whether such person is indebted to the Department for tax or penalty or interest, the credit memorandum or refund shall be issued to the claimant; or (in the case of a credit memorandum) the credit memorandum may be assigned and set over by the lawful holder thereof, subject to reasonable rules of the Department, to any other person who is subject to this Article, and the amount thereof shall be applied by the Department against any tax or penalty or interest due or to become due under this Article from such assignee.

As to any claim for credit or refund filed with the Department on or after each January 1 and July 1, no amounts erroneously paid more than three years prior to such January 1 and July 1, respectively, shall be credited or refunded, except that if both the Department and the taxpayer have agreed to an extension of time to issue a notice of tax liability under this Act, the claim may be filed at any time prior to the expiration of the period agreed upon.

Claims for credit or refund shall be filed upon forms provided by the Department. As soon as practicable after any claim for credit or refund is filed, the Department shall examine the same and determine the amount of credit or refund to which the claimant is entitled and shall notify the claimant of such determination, which amount shall be prima facie correct.

A claim for credit or refund shall be considered to have been filed with the Department on the date upon which it is received by the Department. Upon receipt of any claim for credit or refund filed under this Article, any officer or employee of the Department, authorized in writing by the Director of Revenue to acknowledge receipt of such claims on behalf of the Department, shall execute on behalf of the Department, and shall deliver or mail to the claimant or his duly authorized agent, a written receipt, acknowledging that the claim has been filed with the Department, describing the claim in sufficient detail to identify it and stating the date upon which the claim was received by the Department. Such written receipt shall be prima facie evidence that the Department received the claim described in such receipt and shall be prima facie evidence of the date when such claim was received by the Department. In the absence of such a written receipt, the records of the Department as to when the claim was received by the Department, or as to whether or not the claim was received at all by the Department, shall be deemed to be prima facie correct upon these questions in the event of any dispute between the claimant (or his or her legal representative) and the Department concerning these questions.

Any credit or refund that is allowed under this Article shall bear interest at the rate and in the manner specified in the Uniform Penalty and Interest Act.

In case the Department determines that the claimant is entitled to a refund, such refund shall be made only from such appropriation as may be available for that purpose. If it appears unlikely that the amount appropriated would permit everyone having a claim allowed during the period covered by such appropriation to elect to receive a cash refund, the Department by rule or regulation shall provide for the payment of refunds in hardship cases and shall define what types of cases qualify as hardship cases.

If a retailer who has failed to pay tax on gross charges for telecommunications or video entertainment is required by the Department to pay such tax, such retailer, without filing any formal claim with the Department, shall be allowed to take credit against such tax liability to the extent, if any, to which such retailer has paid the tax to its vendor of the telecommunications or video entertainment which such retailer purchased and used for resale, and no penalty or interest shall be charged to such retailer on the amount of such credit. However, when such credit is allowed to the retailer by the Department, the vendor is precluded from refunding any of the tax to the retailer and filing a claim for credit or refund with respect thereto with the Department. The provisions of this Section added by this amendatory Act of 1988 shall be applied retroactively, regardless of the date of the transaction.

(Source: P.A. 90-491, eff. 1-1-98.)

(35 ILCS 630/20) (from Ch. 120, par. 2020)

Sec. 20. Severability. If any clause, sentence, Section, provision or part of this Article or the application thereof to any person or circumstance, other than the applicability of the Article to messages originating or terminating outside this State, shall be adjudged to be unconstitutional, the remainder of this Article or its application to persons or circumstances other than those to which it is held invalid shall not be affected thereby. In particular, if any provision which exempts or has the effect of exempting some class of persons or some act or privilege of sending or receiving telecommunication or video entertainment from the tax imposed by this Article should be held to constitute or to result in an invalid classification or to be unconstitutional for some other reason, such provision shall be deemed to be severable, with the remainder of this Article, without said provision, being held constitutional.

(Source: P.A. 84-126.)

Section 10. The Telecommunications Infrastructure Maintenance Fee Act is amended by changing Section 15 as follows:

(35 ILCS 635/15)

Sec. 15. State telecommunications infrastructure maintenance fees.

(a) A State infrastructure maintenance fee is hereby imposed upon telecommunications retailers as a replacement for the personal property tax in an amount specified in subsection (b).

(b) The amount of the State infrastructure maintenance fee imposed upon a telecommunications retailer under this Section shall be equal to 0.5% of all gross charges charged by the telecommunications retailer to service addresses in this State for telecommunications, other than wireless telecommunications, originating or received in this State. However, the State infrastructure maintenance fee is not imposed in any case in which the imposition of the fee would violate the Constitution or statutes of the United States.

(c) (Blank).

(d) (Blank).

(e) The State infrastructure maintenance fee authorized by this Section shall be collected, enforced, and administered as set forth in subsection (b) of Section 25 of this Act.

(f) This Section is repealed on January 1, 2007.

(Source: P.A. 92-526, eff. 1-1-03.)

Section 15. The Simplified Municipal Telecommunications Tax Act is amended by changing Sections 5-5 and 5-10 as follows:

(35 ILCS 636/5-5)

Sec. 5-5. Legislative intent.

(a) The General Assembly has authorized the corporate authorities of any municipality to impose various fees and taxes on the privilege of originating or receiving telecommunications, and on retailers engaged in the business of transmitting such telecommunications, all of which are remitted by such retailers directly to the imposing municipality. To simplify the imposition and collection of municipal telecommunications taxes and to reduce complication and burden, the General Assembly is repealing the municipal telecommunications tax, the municipal tax on the occupation or privilege of transmitting messages, and the municipal infrastructure maintenance fee, and is enacting this Simplified Municipal Telecommunications Tax Act which provides for a single municipally imposed telecommunications tax which, for municipalities with populations of less than 500,000, will be collected by the Illinois Department of Revenue, but which, for municipalities of 500,000 or more, will continue to be collected by such municipalities.

(b) This amendatory Act of the 94th General Assembly is intended to end the imposition of the tax under this Act.

(Source: P.A. 92-526, eff. 7-1-02.)

(35 ILCS 636/5-10)

Sec. 5-10. Authority. The corporate authorities of any municipality in this State may tax any and all of the following acts or privileges:

(a) The act or privilege of originating in such municipality or receiving in such municipality intrastate telecommunications by a person. To prevent actual multi-municipal taxation of the act or privilege that is subject to taxation under this subsection, any taxpayer, upon proof that the taxpayer has paid a tax in another municipality on that event, shall be allowed a credit against any tax enacted pursuant to or authorized by this Section to the extent of the amount of the tax properly due and paid in the municipality that was not previously allowed as a credit against any other municipal tax. However, such tax is not imposed on such act or privilege to the extent such act or privilege may not, under the Constitution and statutes of the United States, be made the subject of taxation by municipalities in this State.

(b) The act or privilege of originating in such municipality or receiving in such municipality interstate telecommunications by a person. To prevent actual multi-state or multi-municipal taxation of the act or privilege that is subject to taxation under this subsection, any taxpayer, upon proof that the taxpayer has paid a tax in another state or municipality in this State on such event, shall be allowed a credit against any tax enacted pursuant to or authorized by this Section to the extent of the amount of such tax properly due and paid in such other state or such tax properly due and paid in a municipality in this State which was not previously allowed as a credit against any other state or local tax in this State. However, such tax is not imposed on the act or privilege to the extent such act or privilege may not, under the Constitution and statutes of the United States, be made the subject of taxation by municipalities in this State.

(c) This Section is repealed January 1, 2007.

(Source: P.A. 92-526, eff. 7-1-02; 93-286, eff. 7-22-03.)

Section 99. Effective date. This Act takes effect January 1, 2007.