Full Text of HB5072 96th General Assembly
HB5072 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5072
Introduced 1/29/2010, by Rep. William B. Black SYNOPSIS AS INTRODUCED: |
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65 ILCS 5/8-11-1 |
from Ch. 24, par. 8-11-1 |
65 ILCS 5/8-11-1.3 |
from Ch. 24, par. 8-11-1.3 |
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Amends the Illinois Municipal Code. Provides that, for the purpose of imposing a home rule or non-home rule municipal retailers' occupation tax, if a purchase order is received at a retailer's branch location within a municipality, and delivery is made to the consumer within that municipality, then that municipality's tax applies regardless of whether or not the retailer has a primary place of business located in another municipality. Effective immediately.
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A BILL FOR
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| AN ACT concerning local government.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Municipal Code is amended by | 5 |
| changing Sections 8-11-1 and 8-11-1.3 as follows:
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| (65 ILCS 5/8-11-1) (from Ch. 24, par. 8-11-1)
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| Sec. 8-11-1. Home Rule Municipal Retailers' Occupation Tax | 8 |
| Act. The
corporate authorities of a home rule municipality may
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| impose a tax upon all persons engaged in the business of | 10 |
| selling tangible
personal property, other than an item of | 11 |
| tangible personal property titled
or registered with an agency | 12 |
| of this State's government, at retail in the
municipality on | 13 |
| the gross receipts from these sales made in
the course of such | 14 |
| business. If imposed, the tax shall only
be imposed in 1/4% | 15 |
| increments. On and after September 1, 1991, this
additional tax | 16 |
| may not be imposed on the sales of food for human
consumption | 17 |
| that is to be consumed off the premises where it
is sold (other | 18 |
| than alcoholic beverages, soft drinks and food that has
been | 19 |
| prepared for immediate consumption) and prescription and
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| nonprescription medicines, drugs, medical appliances and | 21 |
| insulin, urine
testing materials, syringes and needles used by | 22 |
| diabetics. The tax imposed
by a home rule municipality under | 23 |
| this Section and all
civil penalties that may be assessed as an |
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| incident of the tax shall
be collected and enforced by the | 2 |
| State Department of
Revenue. The certificate of registration | 3 |
| that is issued by
the Department to a retailer under the | 4 |
| Retailers' Occupation Tax Act
shall permit the retailer to | 5 |
| engage in a business that is taxable
under any ordinance or | 6 |
| resolution enacted pursuant to
this Section without | 7 |
| registering separately with the Department under such
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| ordinance or resolution or under this Section. The Department | 9 |
| shall have
full power to administer and enforce this Section; | 10 |
| to collect all taxes and
penalties due hereunder; to dispose of | 11 |
| taxes and penalties so collected in
the manner hereinafter | 12 |
| provided; and to determine all rights to
credit memoranda | 13 |
| arising on account of the erroneous payment of tax or
penalty | 14 |
| hereunder. In the administration of, and compliance with, this
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| Section the Department and persons who are subject to this | 16 |
| Section shall
have the same rights, remedies, privileges, | 17 |
| immunities, powers and duties,
and be subject to the same | 18 |
| conditions, restrictions, limitations, penalties
and | 19 |
| definitions of terms, and employ the same modes of procedure, | 20 |
| as are
prescribed in Sections 1, 1a, 1d, 1e, 1f, 1i, 1j, 1k, | 21 |
| 1m, 1n, 2 through
2-65 (in
respect to all provisions therein | 22 |
| other than the State rate of tax), 2c, 3
(except as to the | 23 |
| disposition of taxes and penalties collected), 4, 5, 5a,
5b, | 24 |
| 5c, 5d, 5e, 5f, 5g, 5h, 5i, 5j, 5k, 5l, 6, 6a, 6b, 6c, 7, 8, 9, | 25 |
| 10, 11,
12 and 13 of the Retailers' Occupation Tax Act and | 26 |
| Section 3-7 of the
Uniform Penalty and Interest Act, as fully |
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| as if those provisions were
set forth herein.
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| No tax may be imposed by a home rule municipality under | 3 |
| this Section
unless the municipality also imposes a tax at the | 4 |
| same rate under Section
8-11-5 of this Act.
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| Persons subject to any tax imposed under the authority | 6 |
| granted in this
Section may reimburse themselves for their | 7 |
| seller's tax liability hereunder
by separately stating that tax | 8 |
| as an additional charge, which charge may be
stated in | 9 |
| combination, in a single amount, with State tax which sellers | 10 |
| are
required to collect under the Use Tax Act, pursuant to such | 11 |
| bracket
schedules as the Department may prescribe.
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| Whenever the Department determines that a refund should be | 13 |
| made under
this Section to a claimant instead of issuing a | 14 |
| credit memorandum, the
Department shall notify the State | 15 |
| Comptroller, who shall cause the
order to be drawn for the | 16 |
| amount specified and to the person named
in the notification | 17 |
| from the Department. The refund shall be paid by the
State | 18 |
| Treasurer out of the home rule municipal retailers' occupation | 19 |
| tax fund.
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| The Department shall immediately pay over to the State
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| Treasurer, ex officio, as trustee, all taxes and penalties | 22 |
| collected
hereunder. On or before the 25th day of each calendar | 23 |
| month, the
Department shall prepare and certify to the | 24 |
| Comptroller the disbursement of
stated sums of money to named | 25 |
| municipalities, the municipalities to be
those from which | 26 |
| retailers have paid taxes or penalties hereunder to the
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LRB096 19775 RLJ 35212 b |
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| Department during the second preceding calendar month. The | 2 |
| amount to be
paid to each municipality shall be the amount (not | 3 |
| including credit
memoranda) collected hereunder during the | 4 |
| second preceding calendar month
by the Department plus an | 5 |
| amount the Department determines is necessary to
offset any | 6 |
| amounts that were erroneously paid to a different
taxing body, | 7 |
| and not including an amount equal to the amount of refunds
made | 8 |
| during the second preceding calendar month by the Department on
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| behalf of such municipality, and not including any amount that | 10 |
| the Department
determines is necessary to offset any amounts | 11 |
| that were payable to a
different taxing body but were | 12 |
| erroneously paid to the municipality. Within
10 days after | 13 |
| receipt by the Comptroller of the disbursement certification
to | 14 |
| the municipalities provided for in this Section to be given to | 15 |
| the
Comptroller by the Department, the Comptroller shall cause | 16 |
| the orders to be
drawn for the respective amounts in accordance | 17 |
| with the directions
contained in the certification.
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| In addition to the disbursement required by the preceding | 19 |
| paragraph and
in order to mitigate delays caused by | 20 |
| distribution procedures, an
allocation shall, if requested, be | 21 |
| made within 10 days after January 14,
1991, and in November of | 22 |
| 1991 and each year thereafter, to each
municipality that | 23 |
| received more than $500,000 during the preceding fiscal
year, | 24 |
| (July 1 through June 30) whether collected by the municipality | 25 |
| or
disbursed by the Department as required by this Section. | 26 |
| Within 10 days
after January 14, 1991, participating |
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| municipalities shall notify the
Department in writing of their | 2 |
| intent to participate. In addition, for the
initial | 3 |
| distribution, participating municipalities shall certify to | 4 |
| the
Department the amounts collected by the municipality for | 5 |
| each month under
its home rule occupation and service | 6 |
| occupation tax during the period July
1, 1989 through June 30, | 7 |
| 1990. The allocation within 10 days after January
14, 1991, | 8 |
| shall be in an amount equal to the monthly average of these
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| amounts, excluding the 2 months of highest receipts. The | 10 |
| monthly average
for the period of July 1, 1990 through June 30, | 11 |
| 1991 will be determined as
follows: the amounts collected by | 12 |
| the municipality under its home rule
occupation and service | 13 |
| occupation tax during the period of July 1, 1990
through | 14 |
| September 30, 1990, plus amounts collected by the Department | 15 |
| and
paid to such municipality through June 30, 1991, excluding | 16 |
| the 2 months of
highest receipts. The monthly average for each | 17 |
| subsequent period of July 1
through June 30 shall be an amount | 18 |
| equal to the monthly distribution made
to each such | 19 |
| municipality under the preceding paragraph during this period,
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| excluding the 2 months of highest receipts. The distribution | 21 |
| made in
November 1991 and each year thereafter under this | 22 |
| paragraph and the
preceding paragraph shall be reduced by the | 23 |
| amount allocated and disbursed
under this paragraph in the | 24 |
| preceding period of July 1 through June 30.
The Department | 25 |
| shall prepare and certify to the Comptroller for
disbursement | 26 |
| the allocations made in accordance with this paragraph.
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LRB096 19775 RLJ 35212 b |
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| For the purpose of determining the local governmental unit | 2 |
| whose tax
is applicable, a retail sale by a producer of coal or | 3 |
| other mineral
mined in Illinois is a sale at retail at the | 4 |
| place where the coal or
other mineral mined in Illinois is | 5 |
| extracted from the earth. This
paragraph does not apply to coal | 6 |
| or other mineral when it is delivered
or shipped by the seller | 7 |
| to the purchaser at a point outside Illinois so
that the sale | 8 |
| is exempt under the United States Constitution as a sale in
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| interstate or foreign commerce.
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| If a purchase order is received at a retailer's branch | 11 |
| location within a municipality that imposes a tax under this | 12 |
| Section, and delivery is made to the consumer within that | 13 |
| municipality, then that municipality's tax applies regardless | 14 |
| of whether or not the retailer has a primary place of business | 15 |
| located in another municipality. | 16 |
| Nothing in this Section shall be construed to authorize a
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| municipality to impose a tax upon the privilege of engaging in | 18 |
| any
business which under the Constitution of the United States | 19 |
| may not be
made the subject of taxation by this State.
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| An ordinance or resolution imposing or discontinuing a tax | 21 |
| hereunder or
effecting a change in the rate thereof shall be | 22 |
| adopted and a certified
copy thereof filed with the Department | 23 |
| on or before the first day of June,
whereupon the Department | 24 |
| shall proceed to administer and enforce this
Section as of the | 25 |
| first day of September next following the
adoption and filing. | 26 |
| Beginning January 1, 1992, an ordinance or resolution
imposing |
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LRB096 19775 RLJ 35212 b |
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| or discontinuing the tax hereunder or effecting a change in the
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| rate thereof shall be adopted and a certified copy thereof | 3 |
| filed with the
Department on or before the first day of July, | 4 |
| whereupon the Department
shall proceed to administer and | 5 |
| enforce this Section as of the first day of
October next | 6 |
| following such adoption and filing. Beginning January 1, 1993,
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| an ordinance or resolution imposing or discontinuing the tax | 8 |
| hereunder or
effecting a change in the rate thereof shall be | 9 |
| adopted and a certified
copy thereof filed with the Department | 10 |
| on or before the first day of
October, whereupon the Department | 11 |
| shall proceed to administer and enforce
this Section as of the | 12 |
| first day of January next following the
adoption and filing.
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| However, a municipality located in a county with a population | 14 |
| in excess of
3,000,000 that elected to become a home rule unit | 15 |
| at the general primary
election in
1994 may adopt an ordinance | 16 |
| or resolution imposing the tax under this Section
and file a | 17 |
| certified copy of the ordinance or resolution with the | 18 |
| Department on
or before July 1, 1994. The Department shall then | 19 |
| proceed to administer and
enforce this Section as of October 1, | 20 |
| 1994.
Beginning April 1, 1998, an ordinance or
resolution | 21 |
| imposing or
discontinuing the tax hereunder or effecting a | 22 |
| change in the rate thereof shall
either (i) be adopted and a | 23 |
| certified copy thereof filed with the Department on
or
before | 24 |
| the first day of April, whereupon the Department shall proceed | 25 |
| to
administer and enforce this Section as of the first day of | 26 |
| July next following
the adoption and filing; or (ii) be adopted |
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LRB096 19775 RLJ 35212 b |
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| and a certified copy thereof filed
with the Department on or | 2 |
| before the first day of October, whereupon the
Department shall | 3 |
| proceed to administer and enforce this Section as of the first
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| day of January next following the adoption and filing.
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| When certifying the amount of a monthly disbursement to a | 6 |
| municipality
under this Section, the Department shall increase | 7 |
| or decrease the amount by
an amount necessary to offset any | 8 |
| misallocation of previous disbursements.
The offset amount | 9 |
| shall be the amount erroneously disbursed
within the previous 6 | 10 |
| months from the time a misallocation is discovered.
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| Any unobligated balance remaining in the Municipal | 12 |
| Retailers' Occupation
Tax Fund on December 31, 1989, which fund | 13 |
| was abolished by Public Act
85-1135, and all receipts of | 14 |
| municipal tax as a result of audits of
liability periods prior | 15 |
| to January 1, 1990, shall be paid into the Local
Government Tax | 16 |
| Fund for distribution as provided by this Section prior to
the | 17 |
| enactment of Public Act 85-1135. All receipts of municipal tax | 18 |
| as a
result of an assessment not arising from an audit, for | 19 |
| liability periods
prior to January 1, 1990, shall be paid into | 20 |
| the Local Government Tax Fund
for distribution before July 1, | 21 |
| 1990, as provided by this Section prior to
the enactment of | 22 |
| Public Act 85-1135; and on and after July 1,
1990, all such | 23 |
| receipts shall be distributed as provided in Section
6z-18 of | 24 |
| the State Finance Act.
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| As used in this Section, "municipal" and "municipality" | 26 |
| means a city,
village or incorporated town, including an |
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LRB096 19775 RLJ 35212 b |
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| incorporated town that has
superseded a civil township.
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| This Section shall be known and may be cited as the Home | 3 |
| Rule Municipal
Retailers' Occupation Tax Act.
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| (Source: P.A. 90-689, eff. 7-31-98; 91-51, eff. 6-30-99.)
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| (65 ILCS 5/8-11-1.3) (from Ch. 24, par. 8-11-1.3)
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| Sec. 8-11-1.3. Non-Home Rule Municipal Retailers' | 7 |
| Occupation Tax Act. The corporate authorities of a non-home | 8 |
| rule municipality may impose
a tax upon all persons engaged in | 9 |
| the business of selling tangible
personal property, other than | 10 |
| on an item of tangible personal property
which is titled and | 11 |
| registered by an agency of this State's Government,
at retail | 12 |
| in the municipality for expenditure on
public infrastructure or | 13 |
| for property tax relief or both as defined in
Section 8-11-1.2 | 14 |
| if approved by
referendum as provided in Section 8-11-1.1, of | 15 |
| the gross receipts from such
sales made in the course of such | 16 |
| business.
The tax imposed may not be more than 1% and may be | 17 |
| imposed only in
1/4% increments. The tax may not be imposed on | 18 |
| the sale of food for human
consumption that is
to be consumed | 19 |
| off the premises where it is sold (other than alcoholic
| 20 |
| beverages, soft drinks, and food that has been prepared for | 21 |
| immediate
consumption) and prescription and nonprescription | 22 |
| medicines, drugs, medical
appliances, and insulin, urine | 23 |
| testing materials, syringes, and needles used by
diabetics.
The | 24 |
| tax imposed by a
municipality pursuant to this Section and all | 25 |
| civil penalties that may be
assessed as an incident thereof |
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LRB096 19775 RLJ 35212 b |
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| shall be collected and enforced by the
State Department of | 2 |
| Revenue. The certificate of registration which is
issued by the | 3 |
| Department to a retailer under the Retailers' Occupation Tax
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| Act shall permit such retailer to engage in a business which is | 5 |
| taxable
under any ordinance or resolution enacted pursuant to
| 6 |
| this Section without registering separately with the | 7 |
| Department under
such ordinance or resolution or under this | 8 |
| Section. The Department
shall have full power to administer and | 9 |
| enforce this Section; to collect
all taxes and penalties due | 10 |
| hereunder; to dispose of taxes and penalties
so collected in | 11 |
| the manner hereinafter provided, and to determine all
rights to | 12 |
| credit memoranda, arising on account of the erroneous payment
| 13 |
| of tax or penalty hereunder. In the administration of, and | 14 |
| compliance
with, this Section, the Department and persons who | 15 |
| are subject to this
Section shall have the same rights, | 16 |
| remedies, privileges, immunities,
powers and duties, and be | 17 |
| subject to the same conditions, restrictions,
limitations, | 18 |
| penalties and definitions of terms, and employ the same
modes | 19 |
| of procedure, as are prescribed in Sections 1, 1a, 1a-1, 1d, | 20 |
| 1e,
1f, 1i, 1j, 2 through 2-65 (in respect to all provisions | 21 |
| therein other than
the State rate of tax), 2c, 3 (except as to | 22 |
| the disposition of taxes and
penalties collected), 4, 5, 5a, | 23 |
| 5b, 5c, 5d, 5e, 5f, 5g, 5h, 5i, 5j, 5k, 5l,
6, 6a, 6b, 6c, 7, 8, | 24 |
| 9, 10, 11, 12 and 13 of the Retailers'
Occupation Tax Act and | 25 |
| Section 3-7 of the Uniform Penalty and Interest
Act as fully as | 26 |
| if those provisions were set forth herein.
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| No municipality may impose a tax under this Section unless | 2 |
| the municipality
also imposes a tax at the same rate under | 3 |
| Section 8-11-1.4 of this Code.
| 4 |
| Persons subject to any tax imposed pursuant to the | 5 |
| authority granted
in this Section may reimburse themselves for | 6 |
| their seller's tax
liability hereunder by separately stating | 7 |
| such tax as an additional
charge, which charge may be stated in | 8 |
| combination, in a single amount,
with State tax which sellers | 9 |
| are required to collect under the Use Tax
Act, pursuant to such | 10 |
| bracket schedules as the Department may prescribe.
| 11 |
| Whenever the Department determines that a refund should be | 12 |
| made under
this Section to a claimant instead of issuing a | 13 |
| credit memorandum, the
Department shall notify the State | 14 |
| Comptroller, who shall cause the
order to be drawn for the | 15 |
| amount specified, and to the person named,
in such notification | 16 |
| from the Department. Such refund shall be paid by
the State | 17 |
| Treasurer out of the non-home rule municipal retailers'
| 18 |
| occupation tax fund.
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| The Department shall forthwith pay over to the State | 20 |
| Treasurer, ex
officio, as trustee, all taxes and penalties | 21 |
| collected hereunder. On or
before the 25th day of each calendar | 22 |
| month, the Department shall
prepare and certify to the | 23 |
| Comptroller the disbursement of stated sums
of money to named | 24 |
| municipalities, the municipalities to be those from
which | 25 |
| retailers have paid taxes or penalties hereunder to the | 26 |
| Department
during the second preceding calendar month. The |
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| amount to be paid to each
municipality shall be the amount (not | 2 |
| including credit memoranda) collected
hereunder during the | 3 |
| second preceding calendar month by the Department plus
an | 4 |
| amount the Department determines is necessary to offset any | 5 |
| amounts
which were erroneously paid to a different taxing body, | 6 |
| and not including
an amount equal to the amount of refunds made | 7 |
| during the second preceding
calendar month by the Department on | 8 |
| behalf of such municipality, and not
including any amount which | 9 |
| the Department determines is necessary to offset
any amounts | 10 |
| which were payable to a different taxing body but were
| 11 |
| erroneously paid to the municipality. Within 10 days after | 12 |
| receipt, by the
Comptroller, of the disbursement certification | 13 |
| to the municipalities,
provided for in this Section to be given | 14 |
| to the Comptroller by the
Department, the Comptroller shall | 15 |
| cause the orders to be drawn for the
respective amounts in | 16 |
| accordance with the directions contained in such
| 17 |
| certification.
| 18 |
| For the purpose of determining the local governmental unit | 19 |
| whose tax
is applicable, a retail sale, by a producer of coal | 20 |
| or other mineral
mined in Illinois, is a sale at retail at the | 21 |
| place where the coal or
other mineral mined in Illinois is | 22 |
| extracted from the earth. This
paragraph does not apply to coal | 23 |
| or other mineral when it is delivered
or shipped by the seller | 24 |
| to the purchaser at a point outside Illinois so
that the sale | 25 |
| is exempt under the Federal Constitution as a sale in
| 26 |
| interstate or foreign commerce.
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| 1 |
| If a purchase order is received at a retailer's branch | 2 |
| location within a municipality that imposes a tax under this | 3 |
| Section, and delivery is made to the consumer within that | 4 |
| municipality, then that municipality's tax applies regardless | 5 |
| of whether or not the retailer has a primary place of business | 6 |
| located in another municipality. | 7 |
| Nothing in this Section shall be construed to authorize a
| 8 |
| municipality to impose a tax upon the privilege of engaging in | 9 |
| any
business which under the constitution of the United States | 10 |
| may not be
made the subject of taxation by this State.
| 11 |
| When certifying the amount of a monthly disbursement to a | 12 |
| municipality
under this Section, the Department shall increase | 13 |
| or decrease such amount
by an amount necessary to offset any | 14 |
| misallocation of previous
disbursements. The offset amount | 15 |
| shall be the amount erroneously disbursed
within the previous 6 | 16 |
| months from the time a misallocation is discovered.
| 17 |
| The Department of Revenue shall implement this amendatory | 18 |
| Act of the 91st
General Assembly so as to collect the tax on | 19 |
| and after January 1, 2002.
| 20 |
| As used in this Section, "municipal" and "municipality" | 21 |
| means a city,
village or incorporated town, including an | 22 |
| incorporated town which has
superseded a civil township.
| 23 |
| This Section shall be known and may be cited as the | 24 |
| "Non-Home Rule
Municipal Retailers' Occupation Tax Act".
| 25 |
| (Source: P.A. 94-679, eff. 1-1-06.)
| 26 |
| Section 99. Effective date. This Act takes effect upon |
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HB5072 |
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LRB096 19775 RLJ 35212 b |
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| becoming law.
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