99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB2748

 

Introduced 2/16/2016, by Sen. Karen McConnaughay

 

SYNOPSIS AS INTRODUCED:
 
35 ILCS 5/211
35 ILCS 10/5-5
35 ILCS 10/5-15
35 ILCS 10/5-45
215 ILCS 5/405.1 new

    Amends the Illinois Income Tax Act and the Economic Development for a Growing Economy Tax Credit Act. Authorizes taxpayers to sell, assign, or transfer credits awarded under the Economic Development for a Growing Economy Tax Credit Act. Provides that credits awarded under the Economic Development for a Growing Economy Tax Credit Act may also be taken against privilege and retaliatory taxes paid under the Illinois Insurance Code. Amends the Illinois Insurance Code to make conforming changes. Effective immediately.


LRB099 18723 HLH 43107 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB2748LRB099 18723 HLH 43107 b

1    AN ACT concerning revenue.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Income Tax Act is amended by
5changing Section 211 as follows:
 
6    (35 ILCS 5/211)
7    Sec. 211. Economic Development for a Growing Economy Tax
8Credit. For tax years beginning on or after January 1, 1999, a
9Taxpayer who has entered into an Agreement under the Economic
10Development for a Growing Economy Tax Credit Act is entitled to
11a credit against the taxes imposed under subsections (a) and
12(b) of Section 201 of this Act and the taxes imposed under
13Sections 409, 444, and 444.1 of the Illinois Insurance Code in
14an amount to be determined in the Agreement. If the Taxpayer is
15a partnership or Subchapter S corporation, the credit shall be
16allowed to the partners or shareholders in accordance with the
17determination of income and distributive share of income under
18Sections 702 and 704 and subchapter S of the Internal Revenue
19Code. The Department, in cooperation with the Department of
20Commerce and Economic Opportunity, shall prescribe rules to
21enforce and administer the provisions of this Section. This
22Section is exempt from the provisions of Section 250 of this
23Act.

 

 

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1    The credit shall be subject to the conditions set forth in
2the Agreement and the following limitations:
3        (1) The tax credit shall not exceed the Incremental
4    Income Tax (as defined in Section 5-5 of the Economic
5    Development for a Growing Economy Tax Credit Act) with
6    respect to the project.
7        (2) The amount of the credit allowed during the tax
8    year plus the sum of all amounts allowed in prior years
9    shall not exceed 100% of the aggregate amount expended by
10    the Taxpayer during all prior tax years on approved costs
11    defined by Agreement.
12        (3) The amount of the credit shall be determined on an
13    annual basis. Except as applied in a carryover year
14    pursuant to Section 211(4) of this Act, the credit may not
15    be applied against any State income tax liability in more
16    than 10 taxable years; provided, however, that (i) an
17    eligible business certified by the Department of Commerce
18    and Economic Opportunity under the Corporate Headquarters
19    Relocation Act may not apply the credit against any of its
20    State income tax liability in more than 15 taxable years
21    and (ii) credits allowed to that eligible business are
22    subject to the conditions and requirements set forth in
23    Sections 5-35 and 5-45 of the Economic Development for a
24    Growing Economy Tax Credit Act.
25        (4) The credit taken against the taxes imposed under
26    subsections (a) and (b) of Section 201 of this Act may not

 

 

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1    exceed the amount of taxes imposed pursuant to subsections
2    (a) and (b) of Section 201 of this Act. Any credit that is
3    unused in the year the credit is computed may be carried
4    forward and applied to the tax liability of the 5 taxable
5    years following the excess credit year or may be taken as a
6    credit against the taxes imposed under Section 409, 444, or
7    444.1 of the Illinois Insurance Code, as provided in the
8    Agreement. Credits that are carried forward The credit
9    shall be applied to the earliest year for which there is a
10    tax liability. If there are credits from more than one tax
11    year that are available to offset a liability, the earlier
12    credit shall be applied first.
13        (5) No credit shall be allowed with respect to any
14    Agreement for any taxable year ending after the
15    Noncompliance Date. Upon receiving notification by the
16    Department of Commerce and Economic Opportunity of the
17    noncompliance of a Taxpayer with an Agreement, the
18    Department shall notify the Taxpayer that no credit is
19    allowed with respect to that Agreement for any taxable year
20    ending after the Noncompliance Date, as stated in such
21    notification. If any credit has been allowed with respect
22    to an Agreement for a taxable year ending after the
23    Noncompliance Date for that Agreement, any refund paid to
24    the Taxpayer for that taxable year shall, to the extent of
25    that credit allowed, be an erroneous refund within the
26    meaning of Section 912 of this Act.

 

 

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1        (5.5) A sale, assignment, or transfer of the tax credit
2    award may be made by the taxpayer in accordance with rules
3    adopted by the Department of Commerce and Economic
4    Opportunity.
5        (6) For purposes of this Section, the terms
6    "Agreement", "Incremental Income Tax", and "Noncompliance
7    Date" have the same meaning as when used in the Economic
8    Development for a Growing Economy Tax Credit Act.
9(Source: P.A. 94-793, eff. 5-19-06.)
 
10    Section 10. The Economic Development for a Growing Economy
11Tax Credit Act is amended by changing Sections 5-5, 5-15, and
125-45 as follows:
 
13    (35 ILCS 10/5-5)
14    Sec. 5-5. Definitions. As used in this Act:
15    "Agreement" means the Agreement between a Taxpayer and the
16Department under the provisions of Section 5-50 of this Act.
17    "Applicant" means a Taxpayer that is operating a business
18located or that the Taxpayer plans to locate within the State
19of Illinois and that is engaged in interstate or intrastate
20commerce for the purpose of manufacturing, processing,
21assembling, warehousing, or distributing products, conducting
22research and development, providing tourism services, or
23providing services in interstate commerce, office industries,
24or agricultural processing, but excluding retail, retail food,

 

 

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1health, or professional services. "Applicant" does not include
2a Taxpayer who closes or substantially reduces an operation at
3one location in the State and relocates substantially the same
4operation to another location in the State. This does not
5prohibit a Taxpayer from expanding its operations at another
6location in the State, provided that existing operations of a
7similar nature located within the State are not closed or
8substantially reduced. This also does not prohibit a Taxpayer
9from moving its operations from one location in the State to
10another location in the State for the purpose of expanding the
11operation provided that the Department determines that
12expansion cannot reasonably be accommodated within the
13municipality in which the business is located, or in the case
14of a business located in an incorporated area of the county,
15within the county in which the business is located, after
16conferring with the chief elected official of the municipality
17or county and taking into consideration any evidence offered by
18the municipality or county regarding the ability to accommodate
19expansion within the municipality or county.
20    "Committee" means the Illinois Business Investment
21Committee created under Section 5-25 of this Act within the
22Illinois Economic Development Board.
23    "Credit" means the amount agreed to between the Department
24and Applicant under this Act, but not to exceed the Incremental
25Income Tax attributable to the Applicant's project.
26    "Department" means the Department of Commerce and Economic

 

 

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1Opportunity.
2    "Director" means the Director of Commerce and Economic
3Opportunity.
4    "Full-time Employee" means an individual who is employed
5for consideration for at least 35 hours each week or who
6renders any other standard of service generally accepted by
7industry custom or practice as full-time employment. An
8individual for whom a W-2 is issued by a Professional Employer
9Organization (PEO) is a full-time employee if employed in the
10service of the Applicant for consideration for at least 35
11hours each week or who renders any other standard of service
12generally accepted by industry custom or practice as full-time
13employment to Applicant.
14    "Incremental Income Tax" means the total amount withheld
15during the taxable year from the compensation of New Employees
16under Article 7 of the Illinois Income Tax Act arising from
17employment at a project that is the subject of an Agreement.
18    "New Employee" means:
19        (a) A Full-time Employee first employed by a Taxpayer
20    in the project that is the subject of an Agreement and who
21    is hired after the Taxpayer enters into the tax credit
22    Agreement.
23        (b) The term "New Employee" does not include:
24            (1) an employee of the Taxpayer who performs a job
25        that was previously performed by another employee, if
26        that job existed for at least 6 months before hiring

 

 

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1        the employee;
2            (2) an employee of the Taxpayer who was previously
3        employed in Illinois by a Related Member of the
4        Taxpayer and whose employment was shifted to the
5        Taxpayer after the Taxpayer entered into the tax credit
6        Agreement; or
7            (3) a child, grandchild, parent, or spouse, other
8        than a spouse who is legally separated from the
9        individual, of any individual who has a direct or an
10        indirect ownership interest of at least 5% in the
11        profits, capital, or value of the Taxpayer.
12        (c) Notwithstanding paragraph (1) of subsection (b),
13    an employee may be considered a New Employee under the
14    Agreement if the employee performs a job that was
15    previously performed by an employee who was:
16            (1) treated under the Agreement as a New Employee;
17        and
18            (2) promoted by the Taxpayer to another job.
19        (d) Notwithstanding subsection (a), the Department may
20    award Credit to an Applicant with respect to an employee
21    hired prior to the date of the Agreement if:
22            (1) the Applicant is in receipt of a letter from
23        the Department stating an intent to enter into a credit
24        Agreement;
25            (2) the letter described in paragraph (1) is issued
26        by the Department not later than 15 days after the

 

 

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1        effective date of this Act; and
2            (3) the employee was hired after the date the
3        letter described in paragraph (1) was issued.
4    "Noncompliance Date" means, in the case of a Taxpayer that
5is not complying with the requirements of the Agreement or the
6provisions of this Act, the day following the last date upon
7which the Taxpayer was in compliance with the requirements of
8the Agreement and the provisions of this Act, as determined by
9the Director, pursuant to Section 5-65.
10    "Pass Through Entity" means an entity that is exempt from
11the tax under subsection (b) or (c) of Section 205 of the
12Illinois Income Tax Act.
13    "Professional Employer Organization" (PEO) means an
14employee leasing company, as defined in Section 206.1(A)(2) of
15the Illinois Unemployment Insurance Act.
16    "Related Member" means a person that, with respect to the
17Taxpayer during any portion of the taxable year, is any one of
18the following:
19        (1) An individual stockholder, if the stockholder and
20    the members of the stockholder's family (as defined in
21    Section 318 of the Internal Revenue Code) own directly,
22    indirectly, beneficially, or constructively, in the
23    aggregate, at least 50% of the value of the Taxpayer's
24    outstanding stock.
25        (2) A partnership, estate, or trust and any partner or
26    beneficiary, if the partnership, estate, or trust, and its

 

 

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1    partners or beneficiaries own directly, indirectly,
2    beneficially, or constructively, in the aggregate, at
3    least 50% of the profits, capital, stock, or value of the
4    Taxpayer.
5        (3) A corporation, and any party related to the
6    corporation in a manner that would require an attribution
7    of stock from the corporation to the party or from the
8    party to the corporation under the attribution rules of
9    Section 318 of the Internal Revenue Code, if the Taxpayer
10    owns directly, indirectly, beneficially, or constructively
11    at least 50% of the value of the corporation's outstanding
12    stock.
13        (4) A corporation and any party related to that
14    corporation in a manner that would require an attribution
15    of stock from the corporation to the party or from the
16    party to the corporation under the attribution rules of
17    Section 318 of the Internal Revenue Code, if the
18    corporation and all such related parties own in the
19    aggregate at least 50% of the profits, capital, stock, or
20    value of the Taxpayer.
21        (5) A person to or from whom there is attribution of
22    stock ownership in accordance with Section 1563(e) of the
23    Internal Revenue Code, except, for purposes of determining
24    whether a person is a Related Member under this paragraph,
25    20% shall be substituted for 5% wherever 5% appears in
26    Section 1563(e) of the Internal Revenue Code.

 

 

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1    "Taxpayer" means an individual, corporation, partnership,
2or other entity that has any Illinois Income Tax liability or
3any liability under Section 409, 444, or 444.1 of the Illinois
4Insurance Code.
5(Source: P.A. 94-793, eff. 5-19-06; 95-375, eff. 8-23-07.)
 
6    (35 ILCS 10/5-15)
7    Sec. 5-15. Tax Credit Awards. Subject to the conditions set
8forth in this Act, a Taxpayer is entitled to a Credit against
9or, as described in subsection (g) of this Section, a payment
10towards (i) taxes imposed pursuant to subsections (a) and (b)
11of Section 201 of the Illinois Income Tax Act that may be
12imposed on the Taxpayer for a taxable year beginning on or
13after January 1, 1999, (ii) taxes imposed on or after the
14effective date of this amendatory Act of the 99th General
15Assembly pursuant to Section 409, 444, or 444.1 of the Illinois
16Insurance Code, or (iii) both (i) and (ii), if the Taxpayer is
17awarded a Credit by the Department under this Act for that
18taxable year.
19    (a) The Department shall make Credit awards under this Act
20to foster job creation and retention in Illinois.
21    (b) A person that proposes a project to create new jobs in
22Illinois must enter into an Agreement with the Department for
23the Credit under this Act.
24    (c) The Credit shall be claimed for the taxable years
25specified in the Agreement.

 

 

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1    (d) The Credit shall not exceed the Incremental Income Tax
2attributable to the project that is the subject of the
3Agreement.
4    (e) Nothing herein shall prohibit a Tax Credit Award to an
5Applicant that uses a PEO if all other award criteria are
6satisfied.
7    (f) In lieu of the Credit allowed under this Act against
8the taxes imposed pursuant to subsections (a) and (b) of
9Section 201 of the Illinois Income Tax Act for any taxable year
10ending on or after December 31, 2009, the Taxpayer may elect to
11claim the Credit against its obligation to pay over withholding
12under Section 704A of the Illinois Income Tax Act.
13        (1) The election under this subsection (f) may be made
14    only by a Taxpayer that (i) is primarily engaged in one of
15    the following business activities: water purification and
16    treatment, motor vehicle metal stamping, automobile
17    manufacturing, automobile and light duty motor vehicle
18    manufacturing, motor vehicle manufacturing, light truck
19    and utility vehicle manufacturing, heavy duty truck
20    manufacturing, motor vehicle body manufacturing, cable
21    television infrastructure design or manufacturing, or
22    wireless telecommunication or computing terminal device
23    design or manufacturing for use on public networks and (ii)
24    meets the following criteria:
25            (A) the Taxpayer (i) had an Illinois net loss or an
26        Illinois net loss deduction under Section 207 of the

 

 

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1        Illinois Income Tax Act for the taxable year in which
2        the Credit is awarded, (ii) employed a minimum of 1,000
3        full-time employees in this State during the taxable
4        year in which the Credit is awarded, (iii) has an
5        Agreement under this Act on December 14, 2009 (the
6        effective date of Public Act 96-834), and (iv) is in
7        compliance with all provisions of that Agreement;
8            (B) the Taxpayer (i) had an Illinois net loss or an
9        Illinois net loss deduction under Section 207 of the
10        Illinois Income Tax Act for the taxable year in which
11        the Credit is awarded, (ii) employed a minimum of 1,000
12        full-time employees in this State during the taxable
13        year in which the Credit is awarded, and (iii) has
14        applied for an Agreement within 365 days after December
15        14, 2009 (the effective date of Public Act 96-834);
16            (C) the Taxpayer (i) had an Illinois net operating
17        loss carryforward under Section 207 of the Illinois
18        Income Tax Act in a taxable year ending during calendar
19        year 2008, (ii) has applied for an Agreement within 150
20        days after the effective date of this amendatory Act of
21        the 96th General Assembly, (iii) creates at least 400
22        new jobs in Illinois, (iv) retains at least 2,000 jobs
23        in Illinois that would have been at risk of relocation
24        out of Illinois over a 10-year period, and (v) makes a
25        capital investment of at least $75,000,000;
26            (D) the Taxpayer (i) had an Illinois net operating

 

 

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1        loss carryforward under Section 207 of the Illinois
2        Income Tax Act in a taxable year ending during calendar
3        year 2009, (ii) has applied for an Agreement within 150
4        days after the effective date of this amendatory Act of
5        the 96th General Assembly, (iii) creates at least 150
6        new jobs, (iv) retains at least 1,000 jobs in Illinois
7        that would have been at risk of relocation out of
8        Illinois over a 10-year period, and (v) makes a capital
9        investment of at least $57,000,000; or
10            (E) the Taxpayer (i) employed at least 2,500
11        full-time employees in the State during the year in
12        which the Credit is awarded, (ii) commits to make at
13        least $500,000,000 in combined capital improvements
14        and project costs under the Agreement, (iii) applies
15        for an Agreement between January 1, 2011 and June 30,
16        2011, (iv) executes an Agreement for the Credit during
17        calendar year 2011, and (v) was incorporated no more
18        than 5 years before the filing of an application for an
19        Agreement.
20        (1.5) The election under this subsection (f) may also
21    be made by a Taxpayer for any Credit awarded pursuant to an
22    agreement that was executed between January 1, 2011 and
23    June 30, 2011, if the Taxpayer (i) is primarily engaged in
24    the manufacture of inner tubes or tires, or both, from
25    natural and synthetic rubber, (ii) employs a minimum of
26    2,400 full-time employees in Illinois at the time of

 

 

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1    application, (iii) creates at least 350 full-time jobs and
2    retains at least 250 full-time jobs in Illinois that would
3    have been at risk of being created or retained outside of
4    Illinois, and (iv) makes a capital investment of at least
5    $200,000,000 at the project location.
6        (1.6) The election under this subsection (f) may also
7    be made by a Taxpayer for any Credit awarded pursuant to an
8    agreement that was executed within 150 days after the
9    effective date of this amendatory Act of the 97th General
10    Assembly, if the Taxpayer (i) is primarily engaged in the
11    operation of a discount department store, (ii) maintains
12    its corporate headquarters in Illinois, (iii) employs a
13    minimum of 4,250 full-time employees at its corporate
14    headquarters in Illinois at the time of application, (iv)
15    retains at least 4,250 full-time jobs in Illinois that
16    would have been at risk of being relocated outside of
17    Illinois, (v) had a minimum of $40,000,000,000 in total
18    revenue in 2010, and (vi) makes a capital investment of at
19    least $300,000,000 at the project location.
20        (1.7) Notwithstanding any other provision of law, the
21    election under this subsection (f) may also be made by a
22    Taxpayer for any Credit awarded pursuant to an agreement
23    that was executed or applied for on or after July 1, 2011
24    and on or before March 31, 2012, if the Taxpayer is
25    primarily engaged in the manufacture of original and
26    aftermarket filtration parts and products for automobiles,

 

 

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1    motor vehicles, light duty motor vehicles, light trucks and
2    utility vehicles, and heavy duty trucks, (ii) employs a
3    minimum of 1,000 full-time employees in Illinois at the
4    time of application, (iii) creates at least 250 full-time
5    jobs in Illinois, (iv) relocates its corporate
6    headquarters to Illinois from another state, and (v) makes
7    a capital investment of at least $4,000,000 at the project
8    location.
9        (2) An election under this subsection shall allow the
10    credit to be taken against payments otherwise due under
11    Section 704A of the Illinois Income Tax Act during the
12    first calendar year beginning after the end of the taxable
13    year in which the credit is awarded under this Act.
14        (3) The election shall be made in the form and manner
15    required by the Illinois Department of Revenue and, once
16    made, shall be irrevocable.
17        (4) If a Taxpayer who meets the requirements of
18    subparagraph (A) of paragraph (1) of this subsection (f)
19    elects to claim the Credit against its withholdings as
20    provided in this subsection (f), then, on and after the
21    date of the election, the terms of the Agreement between
22    the Taxpayer and the Department may not be further amended
23    during the term of the Agreement.
24    (g) A pass-through entity that has been awarded a credit
25under this Act, its shareholders, or its partners may treat
26some or all of the credit awarded pursuant to this Act as a tax

 

 

SB2748- 16 -LRB099 18723 HLH 43107 b

1payment for purposes of the Illinois Income Tax Act. The term
2"tax payment" means a payment as described in Article 6 or
3Article 8 of the Illinois Income Tax Act or a composite payment
4made by a pass-through entity on behalf of any of its
5shareholders or partners to satisfy such shareholders' or
6partners' taxes imposed pursuant to subsections (a) and (b) of
7Section 201 of the Illinois Income Tax Act. In no event shall
8the amount of the award credited pursuant to this Act exceed
9the Illinois income tax liability of the pass-through entity or
10its shareholders or partners for the taxable year.
11    (h) Effective July 1, 2016, any tax credits awarded under
12this Act and not previously claimed by a taxpayer against its
13income tax liability under Section 201 of the Illinois Income
14Tax Act may be sold, assigned, or transferred, in whole or in
15part, to another Illinois taxpayer subject to all of the
16following conditions:
17        (1) A taxpayer awarded an income tax credit under this
18    Act may make only a single sale, assignment, or transfer of
19    the tax credit earned in a taxable year; however, the
20    credit may be sold, assigned, or transferred to one or more
21    transferees.
22        (2) The tax credit earned by the transferor may be
23    transferred before the due date, including extensions, of
24    the Illinois income tax return of the transferor. The
25    amount of the credit transferred to the transferee or
26    transferees may not exceed the amount of the credit earned

 

 

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1    by the transferor in the transferor's taxable year.
2        (3) Written notification of the transfer or sale of
3    credits awarded under this Act shall be submitted to the
4    Department of Commerce and Economic Opportunity and the
5    Department of Revenue within 30 days after the sale,
6    assignment, or transfer. The Department of Revenue shall
7    provide by rule the information required to be provided in
8    such written notification.
9        (4) The transfer or sale of tax credits under this
10    subsection does not extend the time during which those tax
11    credits can be used. The carry-forward period for a tax
12    credit that is transferred or sold shall begin on the date
13    on which the tax credit was originally earned.
14        (5) A transferee shall have only those rights to claim
15    and use the tax credit that were available to the taxpayer
16    that earned the credit, except that credits sold or
17    transferred may not be used against a transferee's
18    withholding tax liability.
19        (6) If the taxpayer earning the credit fails to comply
20    with the terms and requirements of the Agreement, and,
21    pursuant to the provisions of Section 5-65 of this Act,
22    notice is provided to the Department of Revenue of the
23    taxpayer's non-compliance, the Department shall hold the
24    transferor liable for any tax, penalty, or interest due as
25    a result of non-compliance with the Agreement.
26(Source: P.A. 96-834, eff. 12-14-09; 96-836, eff. 12-16-09;

 

 

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196-905, eff. 6-4-10; 96-1000, eff. 7-2-10; 96-1534, eff.
23-4-11; 97-2, eff. 5-6-11; 97-636, eff. 6-1-12.)
 
3    (35 ILCS 10/5-45)
4    Sec. 5-45. Amount and duration of the credit.
5    (a) The Department shall determine the amount and duration
6of the credit awarded under this Act. The duration of the
7credit may not exceed 10 taxable years. The credit may be
8stated as a percentage of the Incremental Income Tax
9attributable to the applicant's project and may include a fixed
10dollar limitation.
11    (b) Notwithstanding subsection (a), and except as the
12credit may be applied in a carryover year pursuant to Section
13211(4) of the Illinois Income Tax Act, the credit may be
14applied against the State income tax liability, or the tax
15liability under Section 409, 444, or 444.1 of the Illinois
16Insurance Code, in more than 10 taxable years but not in more
17than 15 taxable years for an eligible business that (i)
18qualifies under this Act and the Corporate Headquarters
19Relocation Act and has in fact undertaken a qualifying project
20within the time frame specified by the Department of Commerce
21and Economic Opportunity under that Act, and (ii) applies
22against its State income tax liability and insurance tax
23liability, during the entire 15-year period, no more than 60%
24of the maximum credit per year that would otherwise be
25available under this Act.

 

 

SB2748- 19 -LRB099 18723 HLH 43107 b

1(Source: P.A. 94-793, eff. 5-19-06.)
 
2    Section 15. The Illinois Insurance Code is amended by
3adding Section 405.1 as follows:
 
4    (215 ILCS 5/405.1 new)
5    Sec. 405.1. Economic Development for a Growing Economy Tax
6Credit. Credits may be granted against the taxes imposed under
7Section 409, 444, or 444.1 of this Act on or after the
8effective date of this amendatory Act of the 99th General
9Assembly as provided in Section 211 of the Illinois Income Tax
10Act or the Economic Development for a Growing Economy Tax
11Credit Act.
 
12    Section 99. Effective date. This Act takes effect upon
13becoming law.