Full Text of HB3215 94th General Assembly
HB3215ham002 94TH GENERAL ASSEMBLY
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Rep. Dan Brady
Filed: 4/12/2005
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| AMENDMENT TO HOUSE BILL 3215
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| AMENDMENT NO. ______. Amend House Bill 3215 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Illinois Municipal Code is amended by | 5 |
| changing Sections 8-11-6a and 8-11-6b as follows:
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| (65 ILCS 5/8-11-6a) (from Ch. 24, par. 8-11-6a)
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| Sec. 8-11-6a. Home rule municipalities; preemption of | 8 |
| certain taxes. Except
as provided in Sections 8-11-1, 8-11-5, | 9 |
| 8-11-6, 8-11-6b, and 11-74.3-6 on and after
September 1, 1990, | 10 |
| no home rule municipality has the
authority to impose, pursuant | 11 |
| to its home rule authority, a retailer's
occupation tax, | 12 |
| service occupation tax, use tax, sales tax or other
tax on the | 13 |
| use, sale or purchase of tangible personal property
based on | 14 |
| the gross receipts from such sales or the selling or purchase
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| price of said tangible personal property. Notwithstanding the | 16 |
| foregoing,
this Section does not preempt any home rule imposed | 17 |
| tax such as the
following: (1) a tax on alcoholic beverages, | 18 |
| whether based on gross receipts,
volume sold or any other | 19 |
| measurement; (2) a tax based on the number of units
of | 20 |
| cigarettes or tobacco products (provided, however, that a home | 21 |
| rule
municipality that has not imposed a tax based on the | 22 |
| number of units of
cigarettes or tobacco products before July | 23 |
| 1, 1993, shall not impose such a tax
after that date); (3) a | 24 |
| tax, however measured, based on
the use of a hotel or motel |
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| room or similar facility; (4) a tax, however
measured, on the | 2 |
| sale or transfer of real property; (5) a tax, however
measured, | 3 |
| on lease receipts; (6) a tax on food , which includes soft | 4 |
| drinks, prepared by the retailer for immediate
consumption and | 5 |
| on alcoholic beverages sold by a business which provides
for on | 6 |
| premise consumption of said food or alcoholic beverages ; for | 7 |
| purposes of this item (6), "soft drink" means that term as | 8 |
| defined in Section 2-10 of the Retailers' Occupation Tax Act, | 9 |
| except that the term also includes soft drinks contained in a | 10 |
| closed or sealed bottle, can, carton, or container if they are | 11 |
| chilled, opened by, or otherwise prepared for immediate | 12 |
| consumption by a retailer that provides for on premise | 13 |
| consumption of the soft drink ; or (7)
other taxes not based on | 14 |
| the selling or purchase price or gross receipts
from the use, | 15 |
| sale or purchase of tangible personal property. This Section
is | 16 |
| not intended to affect any existing tax on food and beverages | 17 |
| prepared
for immediate consumption on the premises where the | 18 |
| sale occurs, or any
existing tax on alcoholic beverages, or any | 19 |
| existing tax imposed on the
charge for renting a hotel or motel | 20 |
| room, which was in effect January 15,
1988, or any extension of | 21 |
| the effective date of such an existing tax by
ordinance of the | 22 |
| municipality imposing the tax, which extension is hereby
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| authorized, in any non-home rule municipality in which the | 24 |
| imposition of
such a tax has been upheld by judicial | 25 |
| determination, nor is this Section
intended to preempt the | 26 |
| authority granted by Public Act 85-1006. This
Section is a | 27 |
| limitation, pursuant to subsection (g) of Section 6 of Article
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| VII of the Illinois Constitution, on the power of home rule | 29 |
| units to tax.
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| (Source: P.A. 93-1053, eff. 1-1-05.)
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| (65 ILCS 5/8-11-6b)
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| Sec. 8-11-6b. Home rule soft drink taxes.
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| (a) Except as provided in Sections 8-11-1, 8-11-5 and |
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| 8-11-6 , and item (6) of Section 8-11-6a , or as provided
in this | 2 |
| Section, no home rule municipality has the authority to impose,
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| pursuant to its home rule authority, a tax on the sale, | 4 |
| purchase, or use of
soft
drinks regardless of whether the | 5 |
| measure of the tax is selling price, purchase
price, gross | 6 |
| receipts, unit of volumetric measure, or any other measure. For
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| purposes of this subsection, the
term "soft drink" has the | 8 |
| meaning set forth in Section 2-10 of the
Retailers' Occupation | 9 |
| Tax Act, as may be amended from time to time, except that
the | 10 |
| term shall not be limited to drinks contained in a closed or | 11 |
| sealed bottle,
can, carton, or container. This Section is a | 12 |
| denial and limitation, under
subsection
(g) of Section 6 of | 13 |
| Article VII of the Illinois Constitution, on the power of
home | 14 |
| rule units to tax.
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| (b) The corporate authorities of a home rule municipality
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| with a population in excess of 1,000,000 may impose a tax, | 17 |
| which shall not take
effect prior to April 1, 1994, upon all | 18 |
| persons engaged in the business of
selling soft drinks (other | 19 |
| than fountain soft drinks) at retail in the
municipality based | 20 |
| on the gross receipts from those sales made in the course of
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| such business. If imposed, the tax shall only be in 1/4% | 22 |
| increments and shall
not exceed 3%. For purposes of this | 23 |
| subsection, the term "soft drink"
has the meaning set forth in
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| Section 2-10 of the Retailers' Occupation Tax Act, as may be | 25 |
| amended from time
to time, except that the term shall not be | 26 |
| limited to drinks contained in a
closed or sealed bottle, can, | 27 |
| carton or container; the term "fountain soft
drinks" means soft | 28 |
| drinks which are prepared by the retail seller of the
soft | 29 |
| drinks by mixing syrup or concentrate with water, by hand or | 30 |
| through a
soft drink dispensing machine, at or near the point | 31 |
| and time of sale to the
retail purchaser; and the term "soft | 32 |
| drink dispensing machine" means
a device which mixes soft
drink | 33 |
| syrup or concentrate with water and
dispenses the mixture into | 34 |
| an open container as a ready to drink soft drink.
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| The tax imposed under this subsection and all civil | 2 |
| penalties that may be
assessed as an incident to that tax shall | 3 |
| be collected and enforced by the
Illinois Department of | 4 |
| Revenue. The Department shall have full power to
administer and | 5 |
| enforce this subsection, to collect all taxes and penalties so
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| collected in the manner provided in this subsection, and to | 7 |
| determine all
rights to credit memoranda arising on account of | 8 |
| the erroneous payment of tax
or penalty under this subsection. | 9 |
| In the administration of and compliance with
this subsection, | 10 |
| the Department and persons who are subject to this subsection
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| shall have the same rights, remedies, privileges, immunities, | 12 |
| powers and
duties, shall be subject to the same conditions, | 13 |
| restrictions, limitations,
penalties, exclusions, exemptions, | 14 |
| and definitions of terms, and shall employ
the same modes of | 15 |
| procedure applicable to the Retailers' Occupation Tax as are
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| prescribed in Sections 1, 2 through 2-65 (in respect to all | 17 |
| provisions of those
Sections other than the State rate of | 18 |
| taxes), 2c, 2h, 2i, 3 (except as to the
disposition of taxes | 19 |
| and penalties collected), 4, 5, 5a, 5b, 5c, 5d, 5e, 5f,
5g, 5i, | 20 |
| 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, 11, 12, 13 and, until January 1, | 21 |
| 1994,
13.5 of the Retailers' Occupation Tax Act, and on and | 22 |
| after January 1, 1994,
all applicable provisions of the
Uniform | 23 |
| Penalty and Interest Act that are not inconsistent with this
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| subsection, as fully as if provisions contained in those | 25 |
| Sections of the
Retailers' Occupation Tax Act were set forth in | 26 |
| this subsection.
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| Persons subject to any tax imposed under the authority | 28 |
| granted by this
subsection may reimburse themselves for their | 29 |
| seller's tax liability under this
subsection by separately | 30 |
| stating that tax as an additional charge, which charge
may be | 31 |
| stated in combination, in a single amount, with State taxes | 32 |
| that sellers
are required to collect under the Use Tax Act | 33 |
| pursuant to bracket schedules as
the Department may prescribe. | 34 |
| The retailer filing the return shall, at the
time of filing the |
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| return, pay to the Department the amount of tax imposed
under | 2 |
| this subsection, less the discount of 1.75%, which is allowed | 3 |
| to
reimburse the retailer for the expenses incurred in keeping | 4 |
| records, preparing
the filing returns, remitting the tax, and | 5 |
| supplying data to the Department on
request.
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| Whenever the Department determines that a refund should be | 7 |
| made under this
subsection to a claimant instead of issuing a | 8 |
| credit memoranda, the Department
shall notify the State | 9 |
| Comptroller, who shall cause a warrant to be drawn for
the | 10 |
| amount specified and to the person named in the notification | 11 |
| from the
Department. The refund shall be paid by the State | 12 |
| Treasurer out of the Home
Rule Municipal Soft Drink Retailers' | 13 |
| Occupation Tax Fund.
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| The Department shall forthwith pay over to the State | 15 |
| Treasurer, ex officio,
as trustee, all taxes and penalties | 16 |
| collected hereunder. On or before the 25th
day of each calendar
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| month, the Department shall prepare and certify to the | 18 |
| Comptroller the amount
to be paid to named municipalities, the | 19 |
| municipalities to be those from which
retailers have paid taxes | 20 |
| or penalties hereunder to the Department during the
second | 21 |
| preceding calendar month. The amount to be paid to each | 22 |
| municipality
shall be the amount collected hereunder during the | 23 |
| second preceding calendar
month by the Department, less any | 24 |
| amounts determined by the Department to be
necessary for the | 25 |
| payment of refunds, and less 4% for the first year the tax is
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| in effect and 2% thereafter of such balance, which sum
shall be | 27 |
| deposited by the State Treasurer into the Tax Compliance and
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| Administration Fund in the State treasury from which it shall | 29 |
| be appropriated
to the Department to cover the costs of the | 30 |
| Department in administering and
enforcing the provisions of | 31 |
| this subsection. Within 10 days after
receipt by the | 32 |
| Comptroller of the certification, the Comptroller shall cause
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| the orders to be drawn for the respective amount in accordance | 34 |
| with the
directions contained in such certification.
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| Nothing in this Section shall be construed to authorize a | 2 |
| municipality to
impose a tax upon the privilege of engaging in | 3 |
| any business which under the
Constitution of the United States | 4 |
| may not be made the subject of taxation by
the State.
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| A certificate of registration issued by the Illinois | 6 |
| Department of Revenue to
a retailer under the Retailers' | 7 |
| Occupation Tax Act shall permit the registrant
to engage in a | 8 |
| business that is taxed under the tax imposed under this
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| subsection and no additional registration shall be required | 10 |
| under the ordinance
imposing a tax or under this subsection.
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| A certified copy of any ordinance imposing or discontinuing | 12 |
| any tax under
this subsection or effecting a change in the rate | 13 |
| of that tax shall be filed
with the Department, whereupon the | 14 |
| Department shall proceed to administer and
enforce this | 15 |
| subsection on behalf of such municipality as of the first day | 16 |
| of
February following the date of filing. This tax shall be | 17 |
| known and cited as
the Home Rule Municipal Soft Drink | 18 |
| Retailers' Occupation Tax.
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| (c) The corporate authorities of a home rule
municipality | 20 |
| with a population in excess of 1,000,000 may impose a tax, | 21 |
| which
shall not take effect prior to April 1, 1994, on persons | 22 |
| engaged in the
business of selling fountain soft drinks at | 23 |
| retail at a rate not to exceed 9%
of the cost price of the | 24 |
| fountain soft drinks at retail in such municipality.
For | 25 |
| purposes of this subsection, the term "soft drink" has the | 26 |
| meaning set
forth in Section 2-10 of the
Retailers' Occupation | 27 |
| Tax Act, as may be amended from time to time, except that
the | 28 |
| term shall not be limited to drinks contained in a closed or | 29 |
| sealed bottle,
can,
carton, or container; the term "fountain | 30 |
| soft drinks" means soft drinks
which are prepared by the retail | 31 |
| seller of the soft drinks by mixing soft drink
syrup or | 32 |
| concentrate with water, by hand or through a soft drink | 33 |
| dispensing
machine at or near the point and time of sale to the | 34 |
| retail purchaser; the term
"soft
drink dispensing machine" |
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| means a device which mixes soft drink syrup or
concentrate with | 2 |
| water and dispenses such mixture into an open container as a
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| ready to drink soft drink; the term "sold at retail" shall mean | 4 |
| any transfer
of the ownership or title to tangible personal | 5 |
| property to a purchaser, for the
purpose of use or consumption, | 6 |
| and not for the purpose of resale, for valuable
consideration;
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| the term "cost price of
the fountain soft drinks" means the | 8 |
| consideration paid by the retail
seller of the fountain soft | 9 |
| drink, valued in money, whether paid in money or
otherwise, | 10 |
| including cash, credits and services, and shall be determined
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| without any deduction on account of the supplier's cost of the | 12 |
| property sold or
on account or any other expenses incurred by | 13 |
| the supplier, for the purchase of
soft drink syrup or | 14 |
| concentrate which is designed to be further mixed with
water | 15 |
| before it is consumed as a soft drink; and the term "supplier" | 16 |
| means
any person who makes sales of soft drink syrup or | 17 |
| concentrate to a retail
seller of fountain soft drinks for | 18 |
| purposes of resale as fountain soft drinks.
The tax authorized | 19 |
| by this subsection shall be collected, enforced, and
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| administered by the municipality imposing the tax. Persons | 21 |
| subject to the tax
may reimburse themselves for their tax
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| liability
hereunder by separately stating an amount equal to | 23 |
| the tax as an additional
charge to their retail purchasers or | 24 |
| may include such amount as part of the
selling price of the | 25 |
| soft drink. The municipality imposing the tax shall
provide for | 26 |
| its collection from the person subject
to the tax by requiring | 27 |
| that the supplier to the person subject to the tax
collect and | 28 |
| remit the tax to the municipality. If the supplier fails to
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| collect the tax or if the person subject to the tax fails to | 30 |
| pay the tax to its
supplier, the person subject to the tax | 31 |
| shall make the tax payment directly to
the municipality. | 32 |
| Payment of the tax by the retailer to the supplier shall
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| relieve the retailer of any further liability for the tax.
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| (d) If either tax imposed or authorized by this Section |
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| 8-11-6b is repealed
by the General Assembly or has its maximum | 2 |
| rate reduced by the General
Assembly, or is declared unlawful | 3 |
| or unconstitutional on its face by any court
of competent | 4 |
| jurisdiction after all appeals have been exhausted or the time | 5 |
| to
appeal has expired, then this Section 8-11-6b is | 6 |
| automatically repealed
and no longer effective without further | 7 |
| action by the General Assembly.
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| (e) Notwithstanding the preemption of taxes on the sale, | 9 |
| purchase or use
of soft drinks, taxes on the sale, purchase, or | 10 |
| use of soft drinks which had
been imposed by a municipality | 11 |
| prior to the effective date of this amendatory
Act of 1993 are | 12 |
| specifically authorized under this Section for sales made on or
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| after the effective date of this amendatory Act of 1993 through | 14 |
| March 31,
1994.
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| (Source: P.A. 88-507.)".
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