Full Text of SB0801 95th General Assembly
SB0801ham003 95TH GENERAL ASSEMBLY
|
Rep. Frank J. Mautino
Filed: 11/18/2008
|
|
09500SB0801ham003 |
|
LRB095 05480 HLH 53595 a |
|
| 1 |
| AMENDMENT TO SENATE BILL 801
| 2 |
| AMENDMENT NO. ______. Amend Senate Bill 801 by replacing | 3 |
| everything after the enacting clause with the following:
| 4 |
| "Section 3. The Retailers' Occupation Tax Act is amended by | 5 |
| changing Section 2a as follows:
| 6 |
| (35 ILCS 120/2a) (from Ch. 120, par. 441a)
| 7 |
| Sec. 2a. It is unlawful for any person to engage in the | 8 |
| business of
selling tangible personal property at retail in | 9 |
| this State without a
certificate of registration from the | 10 |
| Department. Application
for a certificate of registration | 11 |
| shall be made to the Department upon
forms furnished by it. | 12 |
| Each such application shall be signed and verified
and shall | 13 |
| state: (1) the name and social security number of the
| 14 |
| applicant; (2) the address of his principal place
of business; | 15 |
| (3) the address of the principal place of business from which
| 16 |
| he engages in the business of selling tangible personal |
|
|
|
09500SB0801ham003 |
- 2 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| property at retail
in this State and the addresses of all other | 2 |
| places of business, if any
(enumerating such addresses, if any, | 3 |
| in a separate list attached to and
made a part of the | 4 |
| application), from which he engages in the business of
selling | 5 |
| tangible personal property at retail in this State; (4)
the
| 6 |
| name and address of the person or persons who will be | 7 |
| responsible for
filing returns and payment of taxes due under | 8 |
| this Act; (5) in the
case of
a corporation, the name, title, | 9 |
| and social security number of
each corporate officer; (6) in | 10 |
| the case of a limited liability
company, the
name, social | 11 |
| security number, and FEIN number of
each
manager and member; | 12 |
| and (7) such other information
as the Department may reasonably | 13 |
| require. The application shall contain
an acceptance of | 14 |
| responsibility signed by the person or persons who will be
| 15 |
| responsible for filing returns and payment of the taxes due | 16 |
| under this
Act. If the applicant will sell tangible personal | 17 |
| property at retail
through vending machines, his application to | 18 |
| register shall indicate the
number of vending machines to be so | 19 |
| operated; and thereafter, he shall
notify the Department by | 20 |
| January 31 of the number of vending machines which
such person | 21 |
| was using in his business of selling tangible personal property
| 22 |
| at retail on the preceding December 31.
| 23 |
| The Department may deny a certificate of registration to | 24 |
| any applicant
if the owner, any partner, any manager or member | 25 |
| of a limited liability
company, or a corporate officer of the | 26 |
| applicant, is or
has been the owner, a partner, a manager or |
|
|
|
09500SB0801ham003 |
- 3 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| member of a limited
liability company, or a corporate officer, | 2 |
| of another retailer
that is in default for moneys due under | 3 |
| this Act.
| 4 |
| Every applicant for a certificate of registration | 5 |
| hereunder shall, at
the time of filing such application, | 6 |
| furnish a bond from a surety company
authorized to do business | 7 |
| in the State of Illinois, or an irrevocable
bank letter of | 8 |
| credit or a bond signed by 2
personal sureties who have filed, | 9 |
| with the Department, sworn statements
disclosing net assets | 10 |
| equal to at least 3 times the amount of the bond to
be required | 11 |
| of such applicant, or a bond secured by an assignment of a bank
| 12 |
| account or certificate of deposit, stocks or bonds, conditioned | 13 |
| upon the
applicant paying to the State of Illinois all moneys | 14 |
| becoming due under
this Act and under any other State tax law | 15 |
| or municipal or county tax
ordinance or resolution under which | 16 |
| the certificate of registration that is
issued to the applicant | 17 |
| under this Act will permit the applicant to engage
in business | 18 |
| without registering separately under such other law, ordinance
| 19 |
| or resolution. The Department shall fix the amount of such | 20 |
| security in each
case, taking into consideration the amount of | 21 |
| money expected to become due
from the applicant under this Act | 22 |
| and under any other State tax law or
municipal or county tax | 23 |
| ordinance or resolution under which the certificate
of | 24 |
| registration that is issued to the applicant under this Act | 25 |
| will permit
the applicant to engage in business without | 26 |
| registering separately under
such other law, ordinance or |
|
|
|
09500SB0801ham003 |
- 4 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| resolution. The amount of security required by
the Department | 2 |
| shall be such as, in its opinion, will protect the State of
| 3 |
| Illinois against failure to pay the amount which may become due | 4 |
| from the
applicant under this Act and under any other State tax | 5 |
| law or municipal or
county tax ordinance or resolution under | 6 |
| which the certificate of
registration that is issued to the | 7 |
| applicant under this Act will permit the
applicant to engage in | 8 |
| business without registering separately under such
other law, | 9 |
| ordinance or resolution, but the amount of the security | 10 |
| required
by the Department shall not exceed three times the | 11 |
| amount of the
applicant's average monthly tax liability, or | 12 |
| $50,000.00, whichever amount
is lower.
| 13 |
| No certificate of registration under this Act shall be | 14 |
| issued by the
Department until the applicant provides the | 15 |
| Department with satisfactory
security as herein provided for.
| 16 |
| Upon receipt of the application for certificate of | 17 |
| registration in
proper form, and upon approval by the | 18 |
| Department of the security furnished
by the applicant, the | 19 |
| Department shall issue to such applicant a
certificate of | 20 |
| registration which shall permit the person to whom it is
issued | 21 |
| to engage in the business of selling tangible personal property | 22 |
| at
retail in this State. The certificate of registration shall | 23 |
| be
conspicuously displayed at the place of business which the | 24 |
| person so
registered states in his application to be the | 25 |
| principal place of business
from which he engages in the | 26 |
| business of selling tangible personal property
at retail in |
|
|
|
09500SB0801ham003 |
- 5 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| this State.
| 2 |
| No certificate of registration issued to a taxpayer who | 3 |
| files returns
required by this Act on a monthly basis shall be | 4 |
| valid after the expiration
of 5 years from the date of its | 5 |
| issuance or last renewal. The expiration
date of a | 6 |
| sub-certificate of registration shall be that of the | 7 |
| certificate
of registration to which the sub-certificate | 8 |
| relates. A certificate of
registration shall automatically be | 9 |
| renewed, subject to revocation as
provided by this Act, for an | 10 |
| additional 5 years from the date of its
expiration unless | 11 |
| otherwise notified by the Department as provided by this
| 12 |
| paragraph. Where a taxpayer to whom a certificate of | 13 |
| registration is
issued under this Act is in default to the | 14 |
| State of Illinois for delinquent
returns or for moneys due
| 15 |
| under this Act or any other State tax law or municipal or | 16 |
| county ordinance
administered or enforced by the Department, | 17 |
| the Department shall, not less
than 120 days before the | 18 |
| expiration date of such certificate of
registration, give | 19 |
| notice to the taxpayer to whom the certificate was
issued of | 20 |
| the account period of the delinquent returns, the amount of
| 21 |
| tax,
penalty and interest due and owing from the
taxpayer, and | 22 |
| that the certificate of registration shall not be
automatically | 23 |
| renewed upon its expiration date unless the taxpayer, on or
| 24 |
| before the date of expiration, has filed and paid the | 25 |
| delinquent returns or
paid the defaulted amount in full. A
| 26 |
| taxpayer to whom such a notice is issued shall be deemed an |
|
|
|
09500SB0801ham003 |
- 6 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| applicant for
renewal. The Department shall promulgate | 2 |
| regulations establishing
procedures for taxpayers who file | 3 |
| returns on a monthly basis but desire and
qualify to change to | 4 |
| a quarterly or yearly filing basis and will no longer
be | 5 |
| subject to renewal under this Section, and for taxpayers who | 6 |
| file
returns on a yearly or quarterly basis but who desire or | 7 |
| are required to
change to a monthly filing basis and will be | 8 |
| subject to renewal under
this Section.
| 9 |
| The Department may in its discretion approve renewal by an | 10 |
| applicant
who is in default if, at the time of application for | 11 |
| renewal, the applicant
files all of the delinquent returns or | 12 |
| pays to the Department such
percentage of the defaulted amount | 13 |
| as may be
determined by the Department and agrees in writing to | 14 |
| waive all limitations
upon the Department for collection of the | 15 |
| remaining defaulted amount to the
Department over a period not | 16 |
| to exceed 5 years from the date of renewal of
the certificate; | 17 |
| however, no renewal application submitted by an applicant
who | 18 |
| is in default shall be approved if the immediately preceding | 19 |
| renewal by
the applicant was conditioned upon the installment | 20 |
| payment
agreement described in this Section. The payment | 21 |
| agreement herein provided
for shall be in addition to and not | 22 |
| in lieu of the security required by
this Section of a taxpayer | 23 |
| who is no longer considered a prior continuous
compliance | 24 |
| taxpayer. The execution of the payment agreement as provided in
| 25 |
| this Act shall not toll the accrual of interest at the | 26 |
| statutory rate.
|
|
|
|
09500SB0801ham003 |
- 7 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| The Department may suspend a certificate of registration if | 2 |
| the Department finds that the person to whom the certificate of | 3 |
| registration has been issued knowingly sold contraband | 4 |
| cigarettes. | 5 |
| A certificate of registration issued under this Act more | 6 |
| than 5 years
before the effective date of this amendatory Act | 7 |
| of 1989 shall expire and
be subject to the renewal provisions | 8 |
| of this Section on the next
anniversary of the date of issuance | 9 |
| of such certificate which occurs more
than 6 months after the | 10 |
| effective date of this amendatory Act of 1989. A
certificate of | 11 |
| registration issued less than 5 years before the effective
date | 12 |
| of this amendatory Act of 1989 shall expire and be subject to | 13 |
| the
renewal provisions of this Section on the 5th anniversary | 14 |
| of the issuance
of the certificate.
| 15 |
| If the person so registered states that he operates other | 16 |
| places of
business from which he engages in the business of | 17 |
| selling tangible personal
property at retail in this State, the | 18 |
| Department shall furnish him with a
sub-certificate of | 19 |
| registration for each such place of business, and the
applicant | 20 |
| shall display the appropriate sub-certificate of registration | 21 |
| at
each such place of business. All sub-certificates of | 22 |
| registration shall
bear the same registration number as that | 23 |
| appearing upon the certificate of
registration to which such | 24 |
| sub-certificates relate.
| 25 |
| If the applicant will sell tangible personal property at | 26 |
| retail through
vending machines, the Department shall furnish |
|
|
|
09500SB0801ham003 |
- 8 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| him with a sub-certificate
of registration for each such | 2 |
| vending machine, and the applicant shall
display the | 3 |
| appropriate sub-certificate of registration on each such
| 4 |
| vending machine by attaching the sub-certificate of | 5 |
| registration to a
conspicuous part of such vending machine.
| 6 |
| Where the same person engages in 2 or more businesses of | 7 |
| selling
tangible personal property at retail in this State, | 8 |
| which businesses are
substantially different in character or | 9 |
| engaged in under different trade
names or engaged in under | 10 |
| other substantially dissimilar circumstances (so
that it is | 11 |
| more practicable, from an accounting, auditing or bookkeeping
| 12 |
| standpoint, for such businesses to be separately registered), | 13 |
| the
Department may require or permit such person (subject to | 14 |
| the same
requirements concerning the furnishing of security as | 15 |
| those that are
provided for hereinbefore in this Section as to | 16 |
| each application for a
certificate of registration) to apply | 17 |
| for and obtain a separate certificate
of registration for each | 18 |
| such business or for any of such businesses, under
a single | 19 |
| certificate of registration supplemented by related
| 20 |
| sub-certificates of registration.
| 21 |
| Any person who is registered under the "Retailers' | 22 |
| Occupation Tax Act"
as of March 8, 1963, and who, during the | 23 |
| 3-year period immediately prior to
March 8, 1963, or during a | 24 |
| continuous 3-year period part of which passed
immediately | 25 |
| before and the remainder of which passes immediately after
| 26 |
| March 8, 1963, has been so registered continuously and who is |
|
|
|
09500SB0801ham003 |
- 9 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| determined by
the Department not to have been either delinquent | 2 |
| or deficient in the
payment of tax liability during that period | 3 |
| under this Act or under any
other State tax law or municipal or | 4 |
| county tax ordinance or resolution
under which the certificate | 5 |
| of registration that is issued to the
registrant under this Act | 6 |
| will permit the registrant to engage in business
without | 7 |
| registering separately under such other law, ordinance or
| 8 |
| resolution, shall be considered to be a Prior Continuous | 9 |
| Compliance
taxpayer. Also any taxpayer who has, as verified by | 10 |
| the Department,
faithfully and continuously complied with the | 11 |
| condition of his bond or
other security under the provisions of | 12 |
| this Act for a period of 3
consecutive years shall be | 13 |
| considered to be a Prior Continuous Compliance
taxpayer.
| 14 |
| Every Prior Continuous Compliance taxpayer shall be exempt | 15 |
| from all
requirements under this Act concerning the furnishing | 16 |
| of security as a
condition precedent to his being authorized to | 17 |
| engage in the business of
selling tangible personal property at | 18 |
| retail in this State. This exemption
shall continue for each | 19 |
| such taxpayer until such time as he may be
determined by the | 20 |
| Department to be delinquent in the filing of any returns,
or is | 21 |
| determined by the Department (either through the Department's
| 22 |
| issuance of a final assessment which has become final under the | 23 |
| Act, or by
the taxpayer's filing of a return which admits tax | 24 |
| that is not paid to be
due) to be delinquent or deficient in | 25 |
| the paying of any tax under this Act
or under any other State | 26 |
| tax law or municipal or county tax ordinance or
resolution |
|
|
|
09500SB0801ham003 |
- 10 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| under which the certificate of registration that is issued to
| 2 |
| the registrant under this Act will permit the registrant to | 3 |
| engage in
business without registering separately under such | 4 |
| other law, ordinance or
resolution, at which time that taxpayer | 5 |
| shall become subject to all the
financial responsibility | 6 |
| requirements of this Act and, as a condition of
being allowed | 7 |
| to continue to engage in the business of selling tangible
| 8 |
| personal property at retail, shall be required to post bond or | 9 |
| other
acceptable security with the Department covering | 10 |
| liability which such
taxpayer may thereafter incur. Any | 11 |
| taxpayer who fails to pay an admitted or
established liability | 12 |
| under this Act may also be required to post bond or
other | 13 |
| acceptable security with this Department guaranteeing the | 14 |
| payment of
such admitted or established liability.
| 15 |
| No certificate of registration shall be issued to any | 16 |
| person who is in
default to the State of Illinois for moneys | 17 |
| due under this Act or under any
other State tax law or | 18 |
| municipal or county tax ordinance or resolution
under which the | 19 |
| certificate of registration that is issued to the applicant
| 20 |
| under this Act will permit the applicant to engage in business | 21 |
| without
registering separately under such other law, ordinance | 22 |
| or resolution.
| 23 |
| Any person aggrieved by any decision of the Department | 24 |
| under this
Section may, within 20 days after notice of such | 25 |
| decision, protest and
request a hearing, whereupon the | 26 |
| Department shall give notice to such
person of the time and |
|
|
|
09500SB0801ham003 |
- 11 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| place fixed for such hearing and shall hold a
hearing in | 2 |
| conformity with the provisions of this Act and then issue its
| 3 |
| final administrative decision in the matter to such person. In | 4 |
| the absence
of such a protest within 20 days, the Department's | 5 |
| decision shall become
final without any further determination | 6 |
| being made or notice given.
| 7 |
| With respect to security other than bonds (upon which the | 8 |
| Department may
sue in the event of a forfeiture), if the | 9 |
| taxpayer fails to pay, when due,
any amount whose payment such | 10 |
| security guarantees, the Department shall,
after such | 11 |
| liability is admitted by the taxpayer or established by the
| 12 |
| Department through the issuance of a final assessment that has | 13 |
| become final
under the law, convert the security which that | 14 |
| taxpayer has furnished into
money for the State, after first | 15 |
| giving the taxpayer at least 10 days'
written notice, by | 16 |
| registered or certified mail, to pay the liability or
forfeit | 17 |
| such security to the Department. If the security consists of | 18 |
| stocks
or bonds or other securities which are listed on a | 19 |
| public exchange, the
Department shall sell such securities | 20 |
| through such public exchange. If
the security consists of an | 21 |
| irrevocable bank letter of credit, the
Department shall convert | 22 |
| the security in the manner provided for in the
Uniform | 23 |
| Commercial Code. If the security consists of a bank certificate | 24 |
| of
deposit, the Department shall convert the security into | 25 |
| money by demanding
and collecting the amount of such bank | 26 |
| certificate of deposit from the bank
which issued such |
|
|
|
09500SB0801ham003 |
- 12 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| certificate. If the security consists of a type of stocks
or | 2 |
| other securities which are not listed on a public exchange, the
| 3 |
| Department shall sell such security to the highest and best | 4 |
| bidder after
giving at least 10 days' notice of the date, time | 5 |
| and place of the intended
sale by publication in the "State | 6 |
| Official Newspaper". If the Department
realizes more than the | 7 |
| amount of such liability from the security, plus the
expenses | 8 |
| incurred by the Department in converting the security into | 9 |
| money,
the Department shall pay such excess to the taxpayer who | 10 |
| furnished such
security, and the balance shall be paid into the | 11 |
| State Treasury.
| 12 |
| The Department shall discharge any surety and shall release | 13 |
| and return
any security deposited, assigned, pledged or | 14 |
| otherwise provided to it by
a taxpayer under this Section | 15 |
| within 30 days after:
| 16 |
| (1) such taxpayer becomes a Prior Continuous | 17 |
| Compliance taxpayer; or
| 18 |
| (2) such taxpayer has ceased to collect receipts on | 19 |
| which he is required
to remit tax to the Department, has | 20 |
| filed a final tax return, and has paid
to the Department an | 21 |
| amount sufficient to discharge his remaining tax
| 22 |
| liability, as determined by the Department, under this Act | 23 |
| and under every
other State tax law or municipal or county | 24 |
| tax ordinance or resolution
under which the certificate of | 25 |
| registration issued under this Act permits
the registrant | 26 |
| to engage in business without registering separately under
|
|
|
|
09500SB0801ham003 |
- 13 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| such other law, ordinance or resolution. The Department | 2 |
| shall make a final
determination of the taxpayer's | 3 |
| outstanding tax liability as expeditiously
as possible | 4 |
| after his final tax return has been filed; if the | 5 |
| Department
cannot make such final determination within 45 | 6 |
| days after receiving the
final tax return, within such | 7 |
| period it shall so notify the taxpayer,
stating its reasons | 8 |
| therefor.
| 9 |
| (Source: P.A. 90-491, eff. 1-1-98; 91-357, eff. 7-29-99.)
| 10 |
| Section 5. The Cigarette Tax Act is amended by changing | 11 |
| Sections 1, 3, 3-10, 4, 20, and 21 and by adding Sections 3-15 | 12 |
| and 4d as follows:
| 13 |
| (35 ILCS 130/1) (from Ch. 120, par. 453.1)
| 14 |
| Sec. 1. For the purposes of this Act:
| 15 |
| "Brand Style" means a variety of cigarettes distinguished | 16 |
| by the tobacco used, tar and nicotine content, flavoring used, | 17 |
| size of the cigarette, filtration on the cigarette or | 18 |
| packaging. | 19 |
| "Cigarette", means any when used in this Act, shall be | 20 |
| construed to mean: Any
roll for smoking made wholly or in part | 21 |
| of tobacco irrespective of size
or shape and whether or not | 22 |
| such tobacco is flavored, adulterated or
mixed with any other | 23 |
| ingredient, and the wrapper or cover of which is
made of paper | 24 |
| or any other substance or material except tobacco.
|
|
|
|
09500SB0801ham003 |
- 14 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| "Contraband cigarettes" means: | 2 |
| (a) cigarettes that do not bear a required tax stamp | 3 |
| under this Act; | 4 |
| (b) cigarettes for which any required federal taxes | 5 |
| have not been paid; | 6 |
| (c) cigarettes that bear a counterfeit tax stamp; | 7 |
| (d) cigarettes that are manufactured, fabricated, | 8 |
| assembled, processed, packaged, or labeled by any person | 9 |
| other than (i) the owner of the trademark rights in the | 10 |
| cigarette brand or (ii) a person that is directly or | 11 |
| indirectly authorized by such owner; | 12 |
| (e) cigarettes imported into the United States, or | 13 |
| otherwise distributed, in violation of the federal | 14 |
| Imported Cigarette Compliance Act of 2000 (Title IV of | 15 |
| Public Law 106-476); or | 16 |
| (f) cigarettes that have false manufacturing labels. | 17 |
| "Person" means any natural individual, firm, partnership, | 18 |
| association, joint
stock company, joint adventure, public or | 19 |
| private corporation, however formed,
limited liability | 20 |
| company, or a receiver, executor, administrator, trustee,
| 21 |
| guardian or other representative appointed by order of any | 22 |
| court.
| 23 |
| "Prior Continuous Compliance Taxpayer" means any person | 24 |
| who is licensed
under this Act and who, having been a licensee | 25 |
| for a continuous period of 5
years, is determined by the | 26 |
| Department not to have been either delinquent
or deficient in |
|
|
|
09500SB0801ham003 |
- 15 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| the payment of tax liability during that period or
otherwise in | 2 |
| violation of this Act. Also, any taxpayer who has, as
verified | 3 |
| by the Department, continuously complied with the condition of | 4 |
| his
bond or other security under provisions of this Act for a | 5 |
| period of 5
consecutive years shall be considered to be a | 6 |
| "Prior continuous compliance
taxpayer". In calculating the | 7 |
| consecutive period of time described herein
for qualification | 8 |
| as a "prior continuous compliance taxpayer", a
consecutive | 9 |
| period of time of qualifying compliance immediately prior to
| 10 |
| the effective date of this amendatory Act of 1987 shall be | 11 |
| credited to any
licensee who became licensed on or before the | 12 |
| effective date of this
amendatory Act of 1987.
| 13 |
| "Department" means the Department of Revenue.
| 14 |
| "Sale" means any transfer, exchange or barter in any manner | 15 |
| or by any
means whatsoever for a consideration, and includes | 16 |
| and means all sales
made by any person.
| 17 |
| "Original Package" means the individual packet, box or | 18 |
| other container
whatsoever used to contain and to convey | 19 |
| cigarettes to the consumer.
| 20 |
| "Distributor" means any and each of the following:
| 21 |
| (1) Any person engaged in the business of selling | 22 |
| cigarettes in this
State who brings or causes to be brought | 23 |
| into this State from without
this State any original packages | 24 |
| of cigarettes, on which original
packages there is no | 25 |
| authorized evidence underneath a sealed transparent
wrapper | 26 |
| showing that the tax liability imposed by this Act has been |
|
|
|
09500SB0801ham003 |
- 16 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| paid
or assumed by the out-of-State seller of such cigarettes, | 2 |
| for sale or
other disposition in the course of such business.
| 3 |
| (2) Any person who makes, manufactures or fabricates | 4 |
| cigarettes in this
State for sale in this State, except a | 5 |
| person who makes, manufactures
or fabricates cigarettes as a | 6 |
| part of a correctional industries program
for sale to residents | 7 |
| incarcerated in penal institutions or resident patients
of a | 8 |
| State-operated mental health facility.
| 9 |
| (3) Any person who makes, manufactures or fabricates | 10 |
| cigarettes
outside this State, which cigarettes are placed in | 11 |
| original packages
contained in sealed transparent wrappers, | 12 |
| for delivery or shipment into
this State, and who elects to | 13 |
| qualify and is accepted by the Department
as a distributor | 14 |
| under Section 4b of this Act.
| 15 |
| "Place of business" shall mean and include any place where | 16 |
| cigarettes
are sold or where cigarettes are manufactured, | 17 |
| stored or kept for the
purpose of sale or consumption, | 18 |
| including any vessel, vehicle, airplane,
train or vending | 19 |
| machine.
| 20 |
| "Business" means any trade, occupation, activity or | 21 |
| enterprise
engaged in for the purpose of selling cigarettes in | 22 |
| this State.
| 23 |
| "Retailer" means any person who engages in the making of | 24 |
| transfers of
the ownership of, or title to, cigarettes to a | 25 |
| purchaser for use or
consumption and not for resale in any | 26 |
| form, for a valuable consideration. "Retailer" does not include |
|
|
|
09500SB0801ham003 |
- 17 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| a person:
| 2 |
| (1) who transfers to residents incarcerated in penal | 3 |
| institutions
or resident patients of a State-operated | 4 |
| mental health facility ownership
of cigarettes made, | 5 |
| manufactured, or fabricated as part of a correctional
| 6 |
| industries program; or | 7 |
| (2) who transfers cigarettes to a not-for-profit | 8 |
| research institution that conducts tests concerning the | 9 |
| health effects of tobacco products and who does not offer | 10 |
| the cigarettes for resale.
| 11 |
| "Retailer" shall be construed to include any person who | 12 |
| engages in
the making of transfers of the ownership of, or | 13 |
| title to, cigarettes to
a purchaser, for use or consumption by | 14 |
| any other person to whom such
purchaser may transfer the | 15 |
| cigarettes without a valuable consideration,
except a person | 16 |
| who transfers to residents incarcerated in penal institutions
| 17 |
| or resident patients of a State-operated mental health facility | 18 |
| ownership
of cigarettes made, manufactured or fabricated as | 19 |
| part of a correctional
industries program.
| 20 |
| "Stamp" or "stamps" mean the indicia required to be affixed | 21 |
| on a pack of cigarettes that evidence payment of the tax on | 22 |
| cigarettes under Section 2 of this Act (35 ILCS 130/2), or the | 23 |
| indicia used to indicate that the cigarettes are intended for a | 24 |
| sale or distribution within this State that is exempt from | 25 |
| State tax under any applicable provision of law. | 26 |
| "Within this State" means within the exterior limits of the |
|
|
|
09500SB0801ham003 |
- 18 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| State of Illinois and includes all territory within these | 2 |
| limits owned by or ceded to the United States of America. | 3 |
| "Related party" means any person that is associated with | 4 |
| any other person because he or she: | 5 |
| (a) is an officer or director of a business; | 6 |
| (b) is legally recognized as a partner in business; or | 7 |
| (c) is directly or indirectly controlled by another. | 8 |
| (Source: P.A. 95-462, eff. 8-27-07.)
| 9 |
| (35 ILCS 130/3) (from Ch. 120, par. 453.3)
| 10 |
| Sec. 3. Affixing tax stamp; remitting tax to the | 11 |
| Department. Payment of
the taxes imposed by Section 2 of this | 12 |
| Act shall
(except as hereinafter provided) be evidenced by | 13 |
| revenue tax stamps affixed
to each original package of | 14 |
| cigarettes. Each distributor of cigarettes,
before delivering | 15 |
| or causing to be delivered any original package of
cigarettes | 16 |
| in this State to a purchaser, shall firmly affix a proper stamp
| 17 |
| or stamps to each such package, or (in case of manufacturers of | 18 |
| cigarettes
in original packages which are contained inside a | 19 |
| sealed transparent
wrapper) shall imprint the required | 20 |
| language on the original package of
cigarettes beneath such | 21 |
| outside wrapper, as hereinafter provided. Any stamp required by | 22 |
| this Act shall note whether the State tax under Section 2 of | 23 |
| this Act (35 ILCS 130/2) was paid.
| 24 |
| No stamp or imprint may be affixed to, or made upon, any | 25 |
| package of
cigarettes unless that package complies with all |
|
|
|
09500SB0801ham003 |
- 19 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| requirements of the federal
Cigarette Labeling and Advertising | 2 |
| Act, 15 U.S.C. 1331 and following, for the
placement of labels, | 3 |
| warnings, or any other information upon a package of
cigarettes | 4 |
| that is sold within the United States. Under the authority of
| 5 |
| Section 6, the Department shall revoke the license of any | 6 |
| distributor that is
determined to have violated this paragraph.
| 7 |
| A person may not affix a stamp on a package of cigarettes, | 8 |
| cigarette papers,
wrappers, or tubes if that individual package | 9 |
| has been marked for export
outside the United States with a | 10 |
| label or notice in compliance with Section
290.185 of Title 27 | 11 |
| of the Code of Federal Regulations. It is not a defense to
a | 12 |
| proceeding for violation of this paragraph that the label or | 13 |
| notice has been
removed, mutilated, obliterated, or altered in | 14 |
| any manner.
| 15 |
| Only distributors licensed under this Act or out-of-state | 16 |
| manufacturers holding a permit under this Act may receive | 17 |
| unstamped packs of cigarettes. Prior to shipment to another | 18 |
| person, each licensed distributor or out-of-state manufacturer | 19 |
| holding a permit shall apply a stamp to each pack of cigarettes | 20 |
| imported, distributed, or sold whether or not such cigarettes | 21 |
| are subject to State tax under Section 2 of this Act (35 ILCS | 22 |
| 130/2) or any other provision of State law, provided that a | 23 |
| distributor or out-of-state manufacturer may only apply a tax | 24 |
| stamp to a pack of cigarettes purchased or obtained directly | 25 |
| from a licensed distributor or an out-of-state manufacturer | 26 |
| holding a permit. Only a licensed distributor or an |
|
|
|
09500SB0801ham003 |
- 20 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| out-of-state manufacturer holding a permit may ship or | 2 |
| otherwise cause to be delivered unstamped packs of cigarettes | 3 |
| in, into, or from this State, provided that a licensed | 4 |
| distributor or an out-of-state manufacturer holding a permit | 5 |
| may transport unstamped packs of cigarettes to a facility, | 6 |
| wherever located, owned by such distributor or manufacturer. | 7 |
| Any person that ships or otherwise causes to be delivered | 8 |
| unstamped packs of cigarettes into, within, or from this State | 9 |
| shall ensure that the invoice or equivalent documentation and | 10 |
| the bill of lading or freight bill for the shipment identifies | 11 |
| the true name and address of the cosignor or seller, the true | 12 |
| name and address of the cosignee or purchaser, and the quantity | 13 |
| by brand style of the cigarettes so transported, provided that | 14 |
| this Section shall not be construed as to impose any | 15 |
| requirement or liability upon any common or contract carrier. | 16 |
| The Department, or any person authorized by the Department, | 17 |
| shall
sell such stamps only to persons holding valid
licenses | 18 |
| as distributors under this Act. On and after July 1, 2003, | 19 |
| payment
for such stamps must be made by means of
electronic | 20 |
| funds transfer. The Department may refuse to sell stamps to any
| 21 |
| person who does not comply
with the provisions of this Act.
| 22 |
| Beginning on the effective date of this amendatory Act of the | 23 |
| 92nd General
Assembly and through June 30, 2002, persons | 24 |
| holding valid licenses as
distributors
may purchase cigarette | 25 |
| tax stamps up to an amount equal to 115% of the
distributor's | 26 |
| average monthly cigarette tax stamp purchases over the 12
|
|
|
|
09500SB0801ham003 |
- 21 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| calendar
months prior to the effective date of this amendatory | 2 |
| Act of the 92nd General
Assembly.
| 3 |
| Prior to December 1, 1985, the Department shall allow a | 4 |
| distributor
21 days in which to make final
payment of the | 5 |
| amount to be paid for such stamps, by allowing the
distributor | 6 |
| to make payment for the stamps at the time of purchasing them
| 7 |
| with a draft which shall be in such form as the Department | 8 |
| prescribes, and
which shall be payable within 21 days | 9 |
| thereafter: Provided that such
distributor has filed with the | 10 |
| Department, and has received the
Department's approval of, a | 11 |
| bond, which is in addition to the bond required
under Section 4 | 12 |
| of this Act, payable to the Department in an amount equal
to | 13 |
| 80% of such distributor's average monthly tax liability to
the | 14 |
| Department under this Act during the preceding calendar year or | 15 |
| $500,000,
whichever is less. The Bond shall be joint and
| 16 |
| several and shall be in the form of a surety company bond in | 17 |
| such form as
the Department prescribes, or it may be in the | 18 |
| form of a bank certificate
of deposit or bank letter of credit. | 19 |
| The bond shall be conditioned upon the
distributor's payment of | 20 |
| amount of any 21-day draft which the Department
accepts from | 21 |
| that distributor for the delivery of stamps to that
distributor | 22 |
| under this Act. The distributor's failure to pay any such
| 23 |
| draft, when due, shall also make such distributor automatically | 24 |
| liable to
the Department for a penalty equal to 25% of the | 25 |
| amount of such draft.
| 26 |
| On and after December 1, 1985 and until July 1, 2003, the |
|
|
|
09500SB0801ham003 |
- 22 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Department
shall allow a distributor
30 days in which to make
| 2 |
| final payment of the amount to be paid for such stamps, by | 3 |
| allowing the
distributor to make payment for the stamps at the | 4 |
| time of purchasing them
with a draft which shall be in such | 5 |
| form as the Department prescribes, and
which shall be payable | 6 |
| within 30 days thereafter, and beginning on January 1,
2003 and | 7 |
| thereafter, the draft shall be payable by means of electronic | 8 |
| funds
transfer: Provided that such
distributor has filed with | 9 |
| the Department, and has received the
Department's approval of, | 10 |
| a bond, which is in addition to the bond required
under Section | 11 |
| 4 of this Act, payable to the Department in an amount equal
to | 12 |
| 150% of such distributor's average monthly tax liability to the
| 13 |
| Department under this Act during the preceding calendar year or | 14 |
| $750,000,
whichever is less, except that as to bonds filed on | 15 |
| or after January 1,
1987, such additional bond shall be in an | 16 |
| amount equal to 100% of such
distributor's average monthly tax | 17 |
| liability under this Act during the
preceding calendar year or | 18 |
| $750,000, whichever is less. The bond shall be
joint and | 19 |
| several and shall be in the form of a surety company bond in | 20 |
| such
form as the Department prescribes, or it may be in the | 21 |
| form of a bank
certificate of deposit or bank letter of credit.
| 22 |
| The bond shall be conditioned upon the distributor's payment of | 23 |
| the amount
of any 30-day draft which the Department accepts | 24 |
| from that distributor for
the delivery of stamps to that | 25 |
| distributor under this Act. The
distributor's failure to pay | 26 |
| any such draft, when due, shall also make such
distributor |
|
|
|
09500SB0801ham003 |
- 23 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| automatically liable to the Department for a penalty equal to
| 2 |
| 25% of the amount of such draft.
| 3 |
| Every prior continuous compliance taxpayer shall be exempt | 4 |
| from all
requirements under this Section concerning the | 5 |
| furnishing of such bond, as
defined in this Section, as a | 6 |
| condition precedent to his being authorized
to engage in the | 7 |
| business licensed under this Act. This exemption shall
continue | 8 |
| for each such taxpayer until such time as he may be determined | 9 |
| by
the Department to be delinquent in the filing of any | 10 |
| returns, or is
determined by the Department (either through the | 11 |
| Department's issuance of a
final assessment which has become | 12 |
| final under the Act, or by the taxpayer's
filing of a return | 13 |
| which admits tax to be due that is not paid) to be
delinquent | 14 |
| or deficient in the paying of any tax under this Act, at which
| 15 |
| time that taxpayer shall become subject to the bond | 16 |
| requirements of this
Section and, as a condition of being | 17 |
| allowed to continue to engage in the
business licensed under | 18 |
| this Act, shall be required to furnish bond to the
Department | 19 |
| in such form as provided in this Section. Such taxpayer shall
| 20 |
| furnish such bond for a period of 2 years, after which, if the | 21 |
| taxpayer has
not been delinquent in the filing of any returns, | 22 |
| or delinquent or
deficient in the paying of any tax under this | 23 |
| Act, the Department may
reinstate such person as a prior | 24 |
| continuance compliance taxpayer. Any
taxpayer who fails to pay | 25 |
| an admitted or established liability under this
Act may also be | 26 |
| required to post bond or other acceptable security with the
|
|
|
|
09500SB0801ham003 |
- 24 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Department guaranteeing the payment of such admitted or | 2 |
| established liability.
| 3 |
| Any person aggrieved by any decision of the Department | 4 |
| under this
Section may, within the time allowed by law, protest | 5 |
| and request a hearing,
whereupon the Department shall give | 6 |
| notice and shall hold a hearing in
conformity with the | 7 |
| provisions of this Act and then issue its final
administrative | 8 |
| decision in the matter to such person. In the absence of
such a | 9 |
| protest filed within the time allowed by law, the Department's
| 10 |
| decision shall become final without any further determination | 11 |
| being made or
notice given.
| 12 |
| The Department shall discharge any surety and shall release | 13 |
| and return
any bond or security deposited, assigned, pledged, | 14 |
| or otherwise provided to
it by a taxpayer under this Section | 15 |
| within 30 days after:
| 16 |
| (1) Such taxpayer becomes a prior continuous compliance | 17 |
| taxpayer; or
| 18 |
| (2) Such taxpayer has ceased to collect receipts on which | 19 |
| he is
required to remit tax to the Department, has filed a | 20 |
| final tax return, and
has paid to the Department an amount | 21 |
| sufficient to discharge his remaining
tax liability as | 22 |
| determined by the Department under this Act. The
Department | 23 |
| shall make a final determination of the taxpayer's outstanding
| 24 |
| tax liability as expeditiously as possible after his final tax | 25 |
| return has
been filed. If the Department cannot make such final | 26 |
| determination within
45 days after receiving the final tax |
|
|
|
09500SB0801ham003 |
- 25 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| return, within such period it shall
so notify the taxpayer, | 2 |
| stating its reasons therefor.
| 3 |
| The Department may authorize distributors to affix revenue | 4 |
| tax stamps by
imprinting tax meter stamps upon original | 5 |
| packages of cigarettes. The
Department shall adopt rules and | 6 |
| regulations relating to the imprinting of
such tax meter stamps | 7 |
| as will result in payment of the proper taxes as
herein | 8 |
| imposed. No distributor may affix revenue tax stamps to | 9 |
| original
packages of cigarettes by imprinting tax meter stamps | 10 |
| thereon unless such
distributor has first obtained permission | 11 |
| from the Department to employ
this method of affixation. The | 12 |
| Department shall regulate the use of tax
meters and may, to | 13 |
| assure the proper collection of the taxes imposed by
this Act, | 14 |
| revoke or suspend the privilege, theretofore granted by the
| 15 |
| Department to any distributor, to imprint tax meter stamps upon | 16 |
| original
packages of cigarettes.
| 17 |
| Illinois cigarette manufacturers who place their | 18 |
| cigarettes in original
packages which are contained inside a | 19 |
| sealed transparent wrapper, and
similar out-of-State cigarette | 20 |
| manufacturers who elect to qualify and are
accepted by the | 21 |
| Department as distributors under Section 4b of this Act,
shall | 22 |
| pay the taxes imposed by this Act by remitting the amount | 23 |
| thereof to
the Department by the 5th day of each month covering | 24 |
| cigarettes shipped or
otherwise delivered in Illinois to | 25 |
| purchasers during the preceding calendar
month. Such | 26 |
| manufacturers of cigarettes in original packages which are
|
|
|
|
09500SB0801ham003 |
- 26 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| contained inside a sealed transparent wrapper, before | 2 |
| delivering such
cigarettes or causing such cigarettes to be | 3 |
| delivered in this State to
purchasers, shall evidence their | 4 |
| obligation to remit the taxes due with
respect to such | 5 |
| cigarettes by imprinting language to be prescribed by the
| 6 |
| Department on each original package of such cigarettes | 7 |
| underneath the
sealed transparent outside wrapper of such | 8 |
| original package, in such place
thereon and in such manner as | 9 |
| the Department may designate. Such imprinted
language shall | 10 |
| acknowledge the manufacturer's payment of or liability for
the | 11 |
| tax imposed by this Act with respect to the distribution of | 12 |
| such
cigarettes.
| 13 |
| A distributor shall not affix, or cause to be affixed, any | 14 |
| stamp or imprint
to a package of cigarettes, as provided for in | 15 |
| this Section, if the tobacco
product
manufacturer, as defined | 16 |
| in Section 10 of the Tobacco Product Manufacturers'
Escrow
Act, | 17 |
| that made or sold the cigarettes has failed to become a | 18 |
| participating
manufacturer, as defined in subdivision (a)(1) | 19 |
| of Section 15 of the Tobacco
Product
Manufacturers' Escrow Act, | 20 |
| or has failed to create a qualified escrow fund for
any | 21 |
| cigarettes manufactured by the tobacco product manufacturer | 22 |
| and sold in
this State or otherwise failed to bring itself into | 23 |
| compliance with subdivision
(a)(2) of Section 15 of the Tobacco | 24 |
| Product
Manufacturers' Escrow Act.
| 25 |
| (Source: P.A. 92-322, eff. 1-1-02; 92-536, eff. 6-6-02;
92-737, | 26 |
| eff. 7-25-02; 93-22, eff. 6-20-03.)
|
|
|
|
09500SB0801ham003 |
- 27 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (35 ILCS 130/3-10)
| 2 |
| Sec. 3-10. Cigarette enforcement.
| 3 |
| (a) Prohibitions. It is unlawful for any person:
| 4 |
| (1) to sell or distribute in this State; to acquire, | 5 |
| hold, own, possess,
or
transport, for sale or distribution | 6 |
| in this State; or to import, or cause to be
imported into | 7 |
| this State for sale or distribution in this State:
| 8 |
| (A) any cigarettes the package of which:
| 9 |
| (i) bears any statement, label, stamp, | 10 |
| sticker, or notice
indicating that the | 11 |
| manufacturer did not intend the cigarettes to be
| 12 |
| sold, distributed, or used in the United States, | 13 |
| including but not
limited to labels stating "For | 14 |
| Export Only", "U.S. Tax Exempt",
"For Use Outside | 15 |
| U.S.", or similar wording; or
| 16 |
| (ii) does not comply with:
| 17 |
| (aa) all requirements imposed by or | 18 |
| pursuant to
federal law regarding warnings and | 19 |
| other information on
packages of cigarettes | 20 |
| manufactured, packaged, or imported
for sale, | 21 |
| distribution, or use in the United States, | 22 |
| including
but not limited to the precise | 23 |
| warning labels specified in the
federal | 24 |
| Cigarette Labeling and Advertising Act, 15 | 25 |
| U.S.C.
1333; and
|
|
|
|
09500SB0801ham003 |
- 28 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (bb) all federal trademark and copyright | 2 |
| laws;
| 3 |
| (B) any cigarettes imported into the United States | 4 |
| in violation of
26 U.S.C. 5754 or any other federal | 5 |
| law, or implementing federal
regulations;
| 6 |
| (C) any cigarettes that such person otherwise | 7 |
| knows or has reason
to know the manufacturer did not | 8 |
| intend to be sold, distributed, or used in
the United | 9 |
| States; or
| 10 |
| (D) any cigarettes for which there has not been | 11 |
| submitted to the
Secretary of the U.S. Department of | 12 |
| Health and Human Services the list or
lists of the | 13 |
| ingredients added to tobacco in the manufacture of the
| 14 |
| cigarettes required by the federal Cigarette Labeling | 15 |
| and Advertising Act,
15 U.S.C. 1335a;
| 16 |
| (2) to alter the package of any cigarettes, prior to | 17 |
| sale or distribution
to
the
ultimate consumer, so as to | 18 |
| remove, conceal, or obscure:
| 19 |
| (A) any statement, label, stamp, sticker, or | 20 |
| notice described in
subdivision (a)(1)(A)(i) of this | 21 |
| Section;
| 22 |
| (B) any health warning that is not specified in, or | 23 |
| does not conform
with the requirements of, the federal | 24 |
| Cigarette Labeling and Advertising
Act, 15 U.S.C. | 25 |
| 1333; or
| 26 |
| (3) to affix any stamp required pursuant to this Act to |
|
|
|
09500SB0801ham003 |
- 29 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| the package of any
cigarettes described in subdivision | 2 |
| (a)(1) of this Section or altered in
violation of
| 3 |
| subdivision (a)(2) ; or . | 4 |
| (4) to knowingly possess, or possess for sale, | 5 |
| contraband cigarettes.
| 6 |
| (b) Documentation. On the first business day of each month, | 7 |
| each person
licensed
to affix the State tax stamp to cigarettes | 8 |
| shall file with the Department, for
all cigarettes
imported | 9 |
| into the United States to which the person has affixed the tax | 10 |
| stamp
in the
preceding month:
| 11 |
| (1) a copy of:
| 12 |
| (A) the permit issued pursuant to the Internal | 13 |
| Revenue Code, 26
U.S.C. 5713, to the person importing | 14 |
| the cigarettes into the United States
allowing the | 15 |
| person to import the cigarettes; and
| 16 |
| (B) the customs form containing, with respect to | 17 |
| the cigarettes, the
internal revenue tax information | 18 |
| required by the U.S. Bureau of Alcohol,
Tobacco and | 19 |
| Firearms;
| 20 |
| (2) a statement, signed by the person under penalty of | 21 |
| perjury, which shall
be treated as confidential by the | 22 |
| Department and exempt from disclosure under
the Freedom of | 23 |
| Information Act, identifying the brand and brand styles of | 24 |
| all such
cigarettes, the quantity of each brand style of | 25 |
| such cigarettes, the supplier of such
cigarettes, and the | 26 |
| person or persons, if any, to whom such cigarettes have |
|
|
|
09500SB0801ham003 |
- 30 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| been
conveyed for resale; and a separate statement, signed | 2 |
| by the individual under
penalty of perjury, which shall not | 3 |
| be treated as confidential or exempt from
disclosure, | 4 |
| separately identifying the brands and brand styles of such
| 5 |
| cigarettes;
and
| 6 |
| (3) a statement, signed by an officer of the | 7 |
| manufacturer or importer
under penalty of perjury, | 8 |
| certifying that the manufacturer or importer has
complied | 9 |
| with:
| 10 |
| (A) the package health warning and ingredient | 11 |
| reporting
requirements of the federal Cigarette | 12 |
| Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 13 |
| with respect to such cigarettes; and
| 14 |
| (B) the provisions of Exhibit T of the Master | 15 |
| Settlement Agreement
entered in
the case of People of | 16 |
| the State of Illinois v. Philip Morris, et al. (Circuit
| 17 |
| Court of Cook County, No. 96-L13146), including a | 18 |
| statement
indicating whether the manufacturer is, or | 19 |
| is not, a participating tobacco
manufacturer within | 20 |
| the meaning of Exhibit T.
| 21 |
| (c) Administrative sanctions.
| 22 |
| (1) Upon finding that a distributor has committed any | 23 |
| of the acts
prohibited by
subsection
(a), knowing or having | 24 |
| reason to know that he or she has done so, or has failed
to | 25 |
| comply
with any requirement of subsection (b), the | 26 |
| Department
may revoke or suspend the license or licenses of |
|
|
|
09500SB0801ham003 |
- 31 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| any
distributor pursuant to the procedures set forth in | 2 |
| Section 6 and impose on the
distributor a civil penalty in | 3 |
| an amount not to exceed the greater of 500% of
the
retail | 4 |
| value of the cigarettes involved or $5,000.
| 5 |
| (2) Cigarettes that are acquired, held, owned, | 6 |
| possessed, transported in,
imported into, or sold or | 7 |
| distributed in this State in violation of this
Section | 8 |
| shall be deemed contraband under this Act and are subject | 9 |
| to seizure
and forfeiture as provided in this Act, and all | 10 |
| such cigarettes seized and
forfeited shall be destroyed. | 11 |
| Such cigarettes shall be deemed contraband
whether the | 12 |
| violation of this Section is knowing or otherwise.
| 13 |
| (d) Unfair trade practices. A violation of subsection (a) | 14 |
| or subsection
(b) of this Section shall constitute an unlawful | 15 |
| practice as provided in the
Consumer Fraud and Deceptive | 16 |
| Business Practices Act.
| 17 |
| (e) Unfair cigarette sales. For purposes of the Trademark | 18 |
| Registration and
Protection Act and the Counterfeit Trademark | 19 |
| Act, cigarettes imported or
reimported into the United States | 20 |
| for sale or distribution under any trade
name, trade dress, or | 21 |
| trademark that is the same as, or is confusingly similar
to, | 22 |
| any trade name, trade dress, or trademark used for cigarettes | 23 |
| manufactured
in the United States for sale or distribution in | 24 |
| the United States shall be
presumed to have been purchased | 25 |
| outside of the ordinary channels of trade.
| 26 |
| (f) General provisions.
|
|
|
|
09500SB0801ham003 |
- 32 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (1) This Section shall be enforced by the Department; | 2 |
| provided that, at
the request of the Director of Revenue or | 3 |
| the Director's duly authorized agent,
the State police and | 4 |
| all local police authorities shall enforce the provisions
| 5 |
| of this Section. The Attorney General has concurrent power | 6 |
| with the State's
Attorney of any county to enforce this | 7 |
| Section.
| 8 |
| (2) For the purpose of enforcing this Section, the | 9 |
| Director of Revenue and
any agency to which the Director | 10 |
| has delegated enforcement
responsibility pursuant to | 11 |
| subdivision (f)(1) may request information from any
State | 12 |
| or local agency and may share information with and request | 13 |
| information
from any federal agency and any agency of any | 14 |
| other state or any local agency
of any other state.
| 15 |
| (3) In addition to any other remedy provided by law, | 16 |
| including
enforcement as provided in subdivision (a)(1), | 17 |
| any person may bring an action
for appropriate injunctive | 18 |
| or other equitable relief for a violation of this
Section; | 19 |
| actual damages, if any, sustained by reason of the | 20 |
| violation; and, as
determined by the court, interest on the | 21 |
| damages from the date of the
complaint, taxable costs, and | 22 |
| reasonable attorney's fees. If the trier of fact
finds that | 23 |
| the violation is flagrant, it may increase recovery to an | 24 |
| amount not
in excess of 3 times the actual damages | 25 |
| sustained by reason of the violation.
| 26 |
| (g) Definitions. As used in this Section:
|
|
|
|
09500SB0801ham003 |
- 33 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 2 |
| "Package" means that term as defined in 15 U.S.C. 1332(4).
| 3 |
| (h) Applicability.
| 4 |
| (1) This Section does not apply to:
| 5 |
| (A) cigarettes allowed to be imported or brought | 6 |
| into the United
States for personal use; and
| 7 |
| (B) cigarettes sold or intended to be sold as | 8 |
| duty-free merchandise
by a duty-free sales enterprise | 9 |
| in accordance with the provisions of 19
U.S.C. 1555(b) | 10 |
| and any implementing regulations; except that this | 11 |
| Section
shall apply to any such cigarettes that are | 12 |
| brought back into the customs
territory for resale | 13 |
| within the customs territory.
| 14 |
| (2) The penalties provided in this Section are in | 15 |
| addition to any other
penalties imposed under other | 16 |
| provision of law.
| 17 |
| (Source: P.A. 91-810, eff. 6-13-00.)
| 18 |
| (35 ILCS 130/3-15 new) | 19 |
| Sec. 3-15. Criminal penalties. | 20 |
| (1) Fraudulent offenses. Whoever intentionally fails to | 21 |
| comply with any of the requirements of this Act or regulations | 22 |
| prescribed hereunder shall, in addition to any other penalty | 23 |
| provided in this Act, for each such offense, be guilty of a | 24 |
| Class 3 felony. | 25 |
| (2) Knowing offenses. Whoever, knowingly violates any of |
|
|
|
09500SB0801ham003 |
- 34 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| the requirements of this Act or regulations prescribed | 2 |
| hereunder shall, in addition to any other penalty provided in | 3 |
| this Act, for each such offense, be guilty of a Class 4 felony. | 4 |
| (3) Penalties for contraband. Notwithstanding any other | 5 |
| provision of law, the possession for sale of contraband | 6 |
| cigarettes by a manufacturer, distributor, or retailer shall be | 7 |
| punishable as follows: | 8 |
| (A) A person who commits a first knowing violation | 9 |
| shall be guilty of a Class 4 felony. | 10 |
| (B) A person who commits a subsequent knowing violation | 11 |
| shall be guilty of a Class 3 felony and shall have his or | 12 |
| her license, permit, or certificate of registration | 13 |
| revoked by the Department. In no case shall the fine | 14 |
| imposed under this paragraph exceed ten times the retail | 15 |
| value of the cigarettes. | 16 |
| (4) For purposes of this Section, the term contraband | 17 |
| cigarettes includes cigarettes that have false manufacturing | 18 |
| labels or packs of cigarettes bearing counterfeit tax stamps. | 19 |
| Any contraband cigarette seized by this State shall be | 20 |
| destroyed. The Department may, prior to any destruction of | 21 |
| cigarettes, permit the true holder of the trademark rights in | 22 |
| the cigarette brand to inspect such contraband cigarettes, in | 23 |
| order to assist the Department in any investigation regarding | 24 |
| such cigarettes. | 25 |
| (5) The penalties provided in paragraph (3) shall not apply | 26 |
| where a licensed distributor is in possession of contraband |
|
|
|
09500SB0801ham003 |
- 35 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| cigarettes as a result of such cigarettes being returned to the | 2 |
| distributor by a retailer if such distributor promptly notified | 3 |
| appropriate law enforcement authorities. | 4 |
| (6) Criminal forfeiture. | 5 |
| (A) Notwithstanding any other provision of law, the | 6 |
| knowing possession for sale of contraband cigarettes by a | 7 |
| manufacturer, distributor, or retailer shall, after notice | 8 |
| and hearing, result in the forfeiture to this State of the | 9 |
| product and related machinery and equipment used in the | 10 |
| production of contraband cigarettes, or to falsely mark | 11 |
| cigarettes to reflect the payment of excise taxes. | 12 |
| (B) The knowing sale or possession for sale of | 13 |
| contraband cigarettes shall, after
notice and hearing, | 14 |
| result in the seizure of all related machinery and | 15 |
| equipment. | 16 |
| (C) All cigarettes forfeited to this State under this | 17 |
| Section shall be destroyed. The
Department may, prior to | 18 |
| any destruction of cigarettes, permit the true holder of | 19 |
| the trademark rights in the cigarette brand to inspect such | 20 |
| contraband cigarettes, in order to assist the Department in | 21 |
| any investigation regarding such cigarettes.
| 22 |
| (35 ILCS 130/4) (from Ch. 120, par. 453.4)
| 23 |
| Sec. 4. Distributor's license. No person may engage in | 24 |
| business as a distributor of cigarettes in this
State within | 25 |
| the meaning of the first 2 definitions of distributor in
|
|
|
|
09500SB0801ham003 |
- 36 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Section 1 of this Act without first having obtained a license | 2 |
| therefor from
the Department. Application for license shall be | 3 |
| made to the Department in
form as furnished and prescribed by | 4 |
| the Department. Each applicant for a
license under this Section | 5 |
| shall furnish to the Department on the form
signed and verified | 6 |
| by the applicant under penalty of perjury the following | 7 |
| information:
| 8 |
| (a) The name and address of the applicant;
| 9 |
| (b) The address of the location at which the applicant | 10 |
| proposes to
engage in business as a distributor of | 11 |
| cigarettes in this State;
| 12 |
| (c) Such other additional information as the | 13 |
| Department may lawfully
require by its rules and | 14 |
| regulations.
| 15 |
| The annual license fee payable to the Department for each | 16 |
| distributor's
license shall be $250. The purpose of such annual | 17 |
| license fee is to defray
the cost, to the Department, of
| 18 |
| serializing cigarette tax stamps. Each applicant for license | 19 |
| shall pay such
fee to the Department at the time of submitting | 20 |
| his application for license
to the Department.
| 21 |
| Every applicant who is required to procure a distributor's | 22 |
| license shall
file with his application a joint and several | 23 |
| bond. Such bond shall be
executed to the Department of Revenue, | 24 |
| with good and sufficient surety or
sureties residing or | 25 |
| licensed to do business within the State of Illinois,
in the | 26 |
| amount of $2,500, conditioned upon the true and faithful |
|
|
|
09500SB0801ham003 |
- 37 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| compliance
by the licensee with all of the provisions of this | 2 |
| Act. Such bond, or a
reissue thereof, or a substitute therefor, | 3 |
| shall be kept in effect during
the entire period covered by the | 4 |
| license. A separate application for
license shall be made, a | 5 |
| separate annual license fee paid, and a separate
bond filed, | 6 |
| for each place of business at which a person who is required to
| 7 |
| procure a distributor's license under this Section proposes to | 8 |
| engage in
business as a distributor in Illinois under this Act.
| 9 |
| The following are ineligible to receive a distributor's | 10 |
| license under
this Act:
| 11 |
| (1) a person who is not of good character and | 12 |
| reputation in the
community in which he resides;
| 13 |
| (2) a person who has been convicted of a felony | 14 |
| under any Federal or
State law, if the Department, | 15 |
| after investigation and a hearing, if
requested by the | 16 |
| applicant, determines that such person has not been
| 17 |
| sufficiently rehabilitated to warrant the public | 18 |
| trust;
| 19 |
| (3) a corporation, if any officer, manager or | 20 |
| director thereof, or any
stockholder or stockholders | 21 |
| owning in the aggregate more than 5% of the
stock of | 22 |
| such corporation, would not be eligible to receive a | 23 |
| license under
this Act for any reason. | 24 |
| (4) a person, or any person who owns more than 15 | 25 |
| percent of the ownership interests in a person or a | 26 |
| related party who: |
|
|
|
09500SB0801ham003 |
- 38 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (a) owes, at the time of application, $500 or | 2 |
| more in delinquent cigarette taxes that have been | 3 |
| determined by law to be due and unpaid, unless the | 4 |
| license applicant has entered into an agreement | 5 |
| approved by the Department to pay the amount due; | 6 |
| (b) had a license under this Act revoked within | 7 |
| the past two years by the Department for willful | 8 |
| misconduct relating to stolen or contraband | 9 |
| cigarettes or has been convicted of a State or | 10 |
| federal crime, punishable by imprisonment of one | 11 |
| year or more, relating to stolen or contraband | 12 |
| cigarettes; | 13 |
| (c) is a distributor who manufactures | 14 |
| cigarettes who is neither (i) a participating | 15 |
| manufacturer as defined in subsection II(jj) of | 16 |
| the "Master Settlement Agreement" as defined in | 17 |
| Sections 10 of the Tobacco Products Manufacturers' | 18 |
| Escrow Act and the Tobacco Products Manufacturers' | 19 |
| Escrow Enforcement Act of 2003 (30 ILCS 168/10 and | 20 |
| 30 ILCS 167/10); nor (ii) in full compliance with | 21 |
| Tobacco Products Manufacturers' Escrow Act and the | 22 |
| Tobacco Products Manufacturers' Escrow Enforcement | 23 |
| Act of 2003 (30 ILCS 168/ and 30 ILCS 167/); | 24 |
| (d) has been found to have willfully imported | 25 |
| or caused to be imported into the United States for | 26 |
| sale or distribution any cigarette in violation of |
|
|
|
09500SB0801ham003 |
- 39 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| 19 U.S.C. 1681a; | 2 |
| (e) has been found to have willfully imported | 3 |
| or caused to be imported into the United States for | 4 |
| sale or distribution or manufactured for sale or | 5 |
| distribution in the United States any cigarette | 6 |
| that does not fully comply with the Federal | 7 |
| Cigarette Labeling and Advertising Act (15 U.S.C. | 8 |
| 1331, et seq.); or | 9 |
| (f) has willfully made a material false | 10 |
| statement in the application or has willfully | 11 |
| failed to produce records required to be | 12 |
| maintained by this Act.
| 13 |
| The Department, upon receipt of an application, license fee | 14 |
| and bond in
proper form, from a person who is eligible to | 15 |
| receive a distributor's
license under this Act, shall issue to | 16 |
| such applicant a license in form as
prescribed by the | 17 |
| Department, which license shall permit the applicant to
which | 18 |
| it is issued to engage in business as a distributor at the | 19 |
| place
shown in his application. All licenses issued by the | 20 |
| Department under this
Act shall be valid for not to exceed one | 21 |
| year after issuance unless sooner
revoked, canceled or | 22 |
| suspended as provided in this Act. No license issued
under this | 23 |
| Act is transferable or assignable. Such license shall be
| 24 |
| conspicuously displayed in the place of business conducted by | 25 |
| the licensee
in Illinois under such license. No distributor | 26 |
| licensee acquires any vested interest or compensable property |
|
|
|
09500SB0801ham003 |
- 40 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| right in a license issued under this Act. | 2 |
| A licensed distributor shall notify the Department of any | 3 |
| change in the information contained on the application form, | 4 |
| including any change in ownership and shall do so within 30 | 5 |
| days after any such change.
| 6 |
| Any person aggrieved by any decision of the Department | 7 |
| under this Section
may, within 20 days after notice of the | 8 |
| decision, protest and request a
hearing. Upon receiving a | 9 |
| request for a hearing, the Department shall give
notice to the | 10 |
| person requesting the hearing of the time and place fixed for | 11 |
| the
hearing and shall hold a hearing in conformity with the | 12 |
| provisions of this Act
and then issue its final administrative | 13 |
| decision in the matter to that person.
In the absence of a | 14 |
| protest and request for a hearing within 20 days, the
| 15 |
| Department's decision shall become final without any further | 16 |
| determination
being made or notice given.
| 17 |
| (Source: P.A. 91-901, eff. 1-1-01; 92-322, eff. 1-1-02.)
| 18 |
| (35 ILCS 130/4d new) | 19 |
| Sec. 4d. Transactions only with licensed distributors, | 20 |
| out-of-state manufacturers holding a permit, and retailers | 21 |
| holding a certificate of registration. A distributor or | 22 |
| manufacturer may sell or distribute cigarettes to a person | 23 |
| located or doing business within this State only if such person | 24 |
| is a licensed distributor or a retailer holding a certificate | 25 |
| of registration. A retailer may only sell cigarettes obtained |
|
|
|
09500SB0801ham003 |
- 41 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| from a licensed distributor or an out-of-state manufacturer | 2 |
| holding a permit.
| 3 |
| (35 ILCS 130/20) (from Ch. 120, par. 453.20)
| 4 |
| Sec. 20. Whenever any peace officer of the State or any | 5 |
| duly authorized
officer or employee of the Department shall | 6 |
| have reason to believe that any
violation of this Act has | 7 |
| occurred and that the person so violating the
Act has in his, | 8 |
| her or its possession any original package of cigarettes,
not | 9 |
| tax stamped or tax imprinted underneath the sealed transparent | 10 |
| wrapper
of such original package as required by this Act, or | 11 |
| any vending device
containing such original packages to which | 12 |
| stamps have not been affixed, or
on which an authorized | 13 |
| substitute for stamps has not been imprinted
underneath the | 14 |
| sealed transparent wrapper of such original packages, as
| 15 |
| required by this Act, he may file or cause to be filed his | 16 |
| complaint in
writing, verified by affidavit, with any court | 17 |
| within whose jurisdiction
the premises to be searched are | 18 |
| situated, stating the facts upon which such
belief is founded, | 19 |
| the premises to be searched, and the property to be
seized, and | 20 |
| procure a search warrant and execute the same. Upon the
| 21 |
| execution of such search warrant, the peace officer, or officer | 22 |
| or employee
of the Department, executing such search warrant | 23 |
| shall make due return
thereof to the court issuing the same, | 24 |
| together with an inventory of the
property taken thereunder. | 25 |
| The court shall thereupon issue process against
the owner of |
|
|
|
09500SB0801ham003 |
- 42 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| such property if he is known; otherwise, such process shall be
| 2 |
| issued against the person in whose possession the property so | 3 |
| taken is
found, if such person is known. In case of inability | 4 |
| to serve such process
upon the owner or the person in | 5 |
| possession of the property at the time of
its seizure, as | 6 |
| hereinbefore provided, notice of the proceedings before the
| 7 |
| court shall be given as required by the statutes of the State | 8 |
| governing
cases of Attachment. Upon the return of the process | 9 |
| duly served or upon the
posting or publishing of notice made, | 10 |
| as hereinabove provided, the court or
jury, if a jury shall be | 11 |
| demanded, shall proceed to determine whether or
not such | 12 |
| property so seized was held or possessed in violation of this | 13 |
| Act,
or whether, if a vending device has been so seized, it | 14 |
| contained at the
time of its seizure original packages not tax | 15 |
| stamped or tax imprinted
underneath the sealed transparent | 16 |
| wrapper of such original packages as
required by this Act. In | 17 |
| case of a finding that the original packages
seized were not | 18 |
| tax stamped or tax imprinted underneath the sealed
transparent | 19 |
| wrapper of such original packages in accordance with the
| 20 |
| provisions of this Act, or that any vending device so seized | 21 |
| contained at
the time of its seizure original packages not tax | 22 |
| stamped or tax imprinted
underneath the sealed transparent | 23 |
| wrapper of such original packages in
accordance with the | 24 |
| provisions of this Act, judgment shall be entered
confiscating | 25 |
| and forfeiting the property to the State and ordering its
| 26 |
| delivery to the Department, and in addition thereto, the court |
|
|
|
09500SB0801ham003 |
- 43 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| shall have
power to tax and assess the costs of the | 2 |
| proceedings.
| 3 |
| When any original packages or any cigarette vending device | 4 |
| shall have
been declared forfeited to the State by any court, | 5 |
| as hereinbefore
provided, and when such confiscated and | 6 |
| forfeited property shall have been
delivered to the Department, | 7 |
| as provided in this Act, the said Department
shall destroy sell | 8 |
| such property . The Department may, prior to any destruction of | 9 |
| cigarettes, permit the true holder of the trademark rights in | 10 |
| the cigarette brand to inspect such contraband cigarettes, in | 11 |
| order to assist the Department in any investigation regarding | 12 |
| such cigarettes. for the best price obtainable and shall | 13 |
| forthwith
pay over the proceeds of such sale to the State | 14 |
| Treasurer; provided,
however, that if the value of such | 15 |
| property to be sold at any one time
shall be $500 or more, such | 16 |
| property shall be sold only to the highest and
best bidder on | 17 |
| such terms and conditions and on open competitive bidding
after | 18 |
| public advertisement, in such manner and for such terms as the
| 19 |
| Department, by rule, may prescribe.
| 20 |
| Upon making such a sale of original packages of cigarettes | 21 |
| which were
not tax stamped or tax imprinted underneath the | 22 |
| sealed transparent wrapper
of such original packages as | 23 |
| required by this Act, the Department shall
affix a distinctive | 24 |
| stamp to each of the original packages so sold
indicating that | 25 |
| the same are sold pursuant to the provisions of this
Section.
| 26 |
| (Source: Laws 1965, p. 3707.)
|
|
|
|
09500SB0801ham003 |
- 44 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (35 ILCS 130/21) (from Ch. 120, par. 453.21)
| 2 |
| Sec. 21. Destruction or use of forfeited property. | 3 |
| (a) When any original packages of cigarettes or
any | 4 |
| cigarette vending device shall have been declared forfeited to | 5 |
| the State by
the Department, as provided in Section 18a of this | 6 |
| Act, and when all proceedings
for the judicial review of the | 7 |
| Department's decision have terminated, the
Department shall, | 8 |
| to the extent that its decision is sustained on review, | 9 |
| destroy , or maintain and use such property in an undercover | 10 |
| capacity , or sell
such property for the best price obtainable | 11 |
| and shall forthwith pay over the
proceeds of such sale to the | 12 |
| State Treasurer.
If the value of such property to be sold at | 13 |
| any one time is
$500 or more, however,
such property shall be | 14 |
| sold only to the highest and best bidder on
such terms and | 15 |
| conditions and on open competitive bidding after public
| 16 |
| advertisement, in such manner and for such terms as the | 17 |
| Department, by
rule, may prescribe .
| 18 |
| (b) The Department may, prior to any destruction of | 19 |
| cigarettes, permit the true holder of the trademark rights in | 20 |
| the cigarette brand to inspect such contraband cigarettes in | 21 |
| order to assist the Department in any investigation regarding | 22 |
| such cigarettes. If no complaint for review, as provided in | 23 |
| Section 8 of
this Act, has been filed within the time required | 24 |
| by the Administrative
Review Law, and if no stay order has been | 25 |
| entered thereunder, the
Department shall proceed to sell the |
|
|
|
09500SB0801ham003 |
- 45 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| property for the
best price obtainable and shall forthwith pay | 2 |
| over the proceeds of such
sale to the State Treasurer. If the | 3 |
| value
of such property to be sold at any one time is $500
or | 4 |
| more, however, such property
shall be sold only to the highest | 5 |
| and best bidder on such terms and
conditions and on open | 6 |
| competitive bidding after public
advertisement, in such manner | 7 |
| and for such terms as the Department, by
rule, may prescribe.
| 8 |
| (c) Upon making a sale of unstamped original packages of
| 9 |
| cigarettes as provided in this Section, the Department shall | 10 |
| affix
a distinctive stamp to each of the original packages so | 11 |
| sold indicating
that the same are sold under this Section.
| 12 |
| (d) Notwithstanding the foregoing, any cigarettes seized | 13 |
| under
this Act or under the Cigarette Use Tax Act may, at the | 14 |
| discretion of the
Director of Revenue, be distributed to any | 15 |
| eleemosynary institution within
the State of Illinois.
| 16 |
| (Source: P.A. 94-776, eff. 5-19-06.)
| 17 |
| (35 ILCS 130/9c rep.)
| 18 |
| (35 ILCS 130/28 rep.)
| 19 |
| Section 10. The Cigarette Tax Act is amended by repealing | 20 |
| Sections 9c and 28. | 21 |
| Section 15. The Cigarette Use Tax Act is amended by | 22 |
| changing Sections 1, 3-10, 4, 26, and 27 and by adding Section | 23 |
| 3-15 as follows:
|
|
|
|
09500SB0801ham003 |
- 46 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (35 ILCS 135/1) (from Ch. 120, par. 453.31)
| 2 |
| Sec. 1. For the purpose of this Act, unless otherwise | 3 |
| required by the
context:
| 4 |
| "Use" means the exercise by any person of any right or | 5 |
| power over
cigarettes incident to the ownership or possession | 6 |
| thereof, other than the
making of a sale thereof in the course | 7 |
| of engaging in a business of selling
cigarettes and shall | 8 |
| include the keeping or retention of cigarettes for use.
| 9 |
| "Brand Style" means a variety of cigarettes distinguished | 10 |
| by the tobacco used, tar and nicotine content, flavoring used, | 11 |
| size of the cigarette, filtration on the cigarette or | 12 |
| packaging. | 13 |
| "Cigarette" means any roll for smoking made wholly or in | 14 |
| part of tobacco
irrespective of size or shape and whether or | 15 |
| not such tobacco is flavored,
adulterated or mixed with any | 16 |
| other ingredient, and the wrapper or cover of
which is made of | 17 |
| paper or any other substance or material except tobacco.
| 18 |
| "Contraband cigarettes" means: | 19 |
| (a) cigarettes that do not bear a required tax stamp | 20 |
| under this Act; | 21 |
| (b) cigarettes for which any required federal taxes | 22 |
| have not been paid; | 23 |
| (c) cigarettes that bear a counterfeit tax stamp; | 24 |
| (d) cigarettes that are manufactured, fabricated, | 25 |
| assembled, processed, packaged, or labeled by any person | 26 |
| other than (i) the owner of the trademark rights in the |
|
|
|
09500SB0801ham003 |
- 47 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| cigarette brand or (ii) a person that is directly or | 2 |
| indirectly authorized by such owner; | 3 |
| (e) cigarettes imported into the United States, or | 4 |
| otherwise distributed, in violation of the federal | 5 |
| Imported Cigarette Compliance Act of 2000 (Title IV of | 6 |
| Public Law 106-476); or | 7 |
| (f) cigarettes that have false manufacturing labels. | 8 |
| "Person" means any natural individual, firm, partnership, | 9 |
| association,
joint stock company, joint adventure, public or | 10 |
| private corporation,
however formed, limited liability | 11 |
| company, or a receiver, executor,
administrator, trustee, | 12 |
| guardian or other representative appointed by order of
any | 13 |
| court.
| 14 |
| "Department" means the Department of Revenue.
| 15 |
| "Sale" means any transfer, exchange or barter in any manner | 16 |
| or by any
means whatsoever for a consideration, and includes | 17 |
| and means all sales made
by any person.
| 18 |
| "Original Package" means the individual packet, box or | 19 |
| other container
whatsoever used to contain and to convey | 20 |
| cigarettes to the consumer.
| 21 |
| "Distributor" means any and each of the following:
| 22 |
| a. Any person engaged in the business of selling | 23 |
| cigarettes in this
State who brings or causes to be brought | 24 |
| into this State from without this
State any original | 25 |
| packages of cigarettes, on which original packages there
is | 26 |
| no authorized evidence underneath a sealed transparent |
|
|
|
09500SB0801ham003 |
- 48 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| wrapper showing
that the tax liability imposed by this Act | 2 |
| has been paid or assumed by the
out-of-State seller of such | 3 |
| cigarettes, for sale in the course of such
business.
| 4 |
| b. Any person who makes, manufactures or fabricates | 5 |
| cigarettes in this
State for sale, except a person who | 6 |
| makes, manufactures or fabricates
cigarettes for sale to | 7 |
| residents incarcerated in penal institutions or resident
| 8 |
| patients or a State-operated mental health facility.
| 9 |
| c. Any person who makes, manufactures or fabricates | 10 |
| cigarettes outside
this State, which cigarettes are placed | 11 |
| in original packages contained in
sealed transparent | 12 |
| wrappers, for delivery or shipment into this State, and
who | 13 |
| elects to qualify and is accepted by the Department as a | 14 |
| distributor
under Section 7 of this Act.
| 15 |
| "Distributor" does not include any person who transfers | 16 |
| cigarettes to a not-for-profit
research institution that | 17 |
| conducts tests concerning the
health effects of tobacco | 18 |
| products and who does not offer
the cigarettes for resale.
| 19 |
| "Distributor maintaining a place of business in this | 20 |
| State", or any like
term, means any distributor having or | 21 |
| maintaining within this State,
directly or by a subsidiary, an | 22 |
| office, distribution house, sales house,
warehouse or other | 23 |
| place of business, or any agent operating within this
State | 24 |
| under the authority of the distributor or its subsidiary,
| 25 |
| irrespective of whether such place of business or agent is | 26 |
| located here
permanently or temporarily, or whether such |
|
|
|
09500SB0801ham003 |
- 49 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| distributor or subsidiary is
licensed to transact business | 2 |
| within this State.
| 3 |
| "Business" means any trade, occupation, activity or | 4 |
| enterprise engaged
in or conducted in this State for the | 5 |
| purpose of selling cigarettes.
| 6 |
| "Prior Continuous Compliance Taxpayer" means any person | 7 |
| who is licensed
under this Act and who, having been a licensee | 8 |
| for a continuous period of 5
years, is determined by the | 9 |
| Department not to have been either delinquent
or deficient in | 10 |
| the payment of tax liability during that period or
otherwise in | 11 |
| violation of this Act. Also, any taxpayer who has, as
verified | 12 |
| by the Department, continuously complied with the
condition of | 13 |
| his bond or other security under provisions of this Act of a
| 14 |
| period of 5 consecutive years shall be considered to be a | 15 |
| "prior
continuous compliance taxpayer". In calculating the | 16 |
| consecutive period of
time described herein for qualification | 17 |
| as a "prior continuous compliance
taxpayer", a consecutive | 18 |
| period of time of qualifying compliance
immediately prior to | 19 |
| the effective date of this amendatory Act of 1987 shall be
| 20 |
| credited to any licensee who became licensed on or before the | 21 |
| effective date
of this amendatory Act of 1987.
| 22 |
| "Stamp" or "stamps" mean the indicia required to be affixed | 23 |
| on a pack of cigarettes that evidence payment of the tax on | 24 |
| cigarettes under Section 2 of this Act (35 ILCS 130/2), or the | 25 |
| indicia used to indicate that the cigarettes are intended for a | 26 |
| sale or distribution within this State that is exempt from |
|
|
|
09500SB0801ham003 |
- 50 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| State tax under any applicable provision of law. | 2 |
| "Within this State" means within the exterior limits of the | 3 |
| State of Illinois and includes all territory within these | 4 |
| limits owned by or ceded to the United States of America. | 5 |
| "Related party" means any person that is associated with | 6 |
| any other person because he or she: | 7 |
| (a) is an officer or director of a business; | 8 |
| (b) is legally recognized as a partner in business; or | 9 |
| (c) is directly or indirectly controlled by another. | 10 |
| (Source: P.A. 95-462, eff. 8-27-07.)
| 11 |
| (35 ILCS 135/3-10)
| 12 |
| Sec. 3-10. Cigarette enforcement.
| 13 |
| (a) Prohibitions. It is unlawful for any person:
| 14 |
| (1) to sell or distribute in this State; to acquire, | 15 |
| hold, own, possess,
or
transport, for sale or distribution | 16 |
| in this State; or to import, or cause to be
imported into | 17 |
| this State for sale or distribution in this State:
| 18 |
| (A) any cigarettes the package of which:
| 19 |
| (i) bears any statement, label, stamp, | 20 |
| sticker, or notice
indicating that the | 21 |
| manufacturer did not intend the cigarettes to be
| 22 |
| sold, distributed, or used in the United States, | 23 |
| including but not
limited to labels stating "For | 24 |
| Export Only", "U.S. Tax Exempt",
"For Use Outside | 25 |
| U.S.", or similar wording; or
|
|
|
|
09500SB0801ham003 |
- 51 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (ii) does not comply with:
| 2 |
| (aa) all requirements imposed by or | 3 |
| pursuant to
federal law regarding warnings and | 4 |
| other information on
packages of cigarettes | 5 |
| manufactured, packaged, or imported
for sale, | 6 |
| distribution, or use in the United States, | 7 |
| including
but not limited to the precise | 8 |
| warning labels specified in the
federal | 9 |
| Cigarette Labeling and Advertising Act, 15 | 10 |
| U.S.C.
1333; and
| 11 |
| (bb) all federal trademark and copyright | 12 |
| laws;
| 13 |
| (B) any cigarettes imported into the United States | 14 |
| in violation of
26 U.S.C. 5754 or any other federal | 15 |
| law, or implementing federal
regulations;
| 16 |
| (C) any cigarettes that such person otherwise | 17 |
| knows or has reason
to know the manufacturer did not | 18 |
| intend to be sold, distributed, or used in
the United | 19 |
| States; or
| 20 |
| (D) any cigarettes for which there has not been | 21 |
| submitted to the
Secretary of the U.S. Department of | 22 |
| Health and Human Services the list or
lists of the | 23 |
| ingredients added to tobacco in the manufacture of the
| 24 |
| cigarettes required by the federal Cigarette Labeling | 25 |
| and Advertising Act,
15 U.S.C. 1335a;
| 26 |
| (2) to alter the package of any cigarettes, prior to |
|
|
|
09500SB0801ham003 |
- 52 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| sale or distribution
to
the
ultimate consumer, so as to | 2 |
| remove, conceal, or obscure:
| 3 |
| (A) any statement, label, stamp, sticker, or | 4 |
| notice described in
subdivision (a)(1)(A)(i) of this | 5 |
| Section;
| 6 |
| (B) any health warning that is not specified in, or | 7 |
| does not conform
with the requirements of, the federal | 8 |
| Cigarette Labeling and Advertising
Act, 15 U.S.C. | 9 |
| 1333; or
| 10 |
| (3) to affix any stamp required pursuant to this Act to | 11 |
| the package of any
cigarettes described in subdivision | 12 |
| (a)(1) of this Section or altered in
violation of
| 13 |
| subdivision (a)(2) ; or .
| 14 |
| (4) to knowingly possess, or possess for sale, | 15 |
| contraband cigarettes. | 16 |
| (b) Documentation. On the first business day of each month, | 17 |
| each person
licensed
to affix the State tax stamp to cigarettes | 18 |
| shall file with the Department, for
all cigarettes
imported | 19 |
| into the United States to which the person has affixed the tax | 20 |
| stamp
in the
preceding month:
| 21 |
| (1) a copy of:
| 22 |
| (A) the permit issued pursuant to the Internal | 23 |
| Revenue Code, 26
U.S.C. 5713, to the person importing | 24 |
| the cigarettes into the United States
allowing the | 25 |
| person to import the cigarettes; and
| 26 |
| (B) the customs form containing, with respect to |
|
|
|
09500SB0801ham003 |
- 53 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| the cigarettes, the
internal revenue tax information | 2 |
| required by the U.S. Bureau of Alcohol,
Tobacco and | 3 |
| Firearms;
| 4 |
| (2) a statement, signed by the person under penalty of | 5 |
| perjury, which shall
be treated as confidential by the | 6 |
| Department and exempt from disclosure under
the Freedom of | 7 |
| Information Act, identifying the brand and brand styles of | 8 |
| all such
cigarettes, the quantity of each brand style of | 9 |
| such cigarettes, the supplier of such
cigarettes, and the | 10 |
| person or persons, if any, to whom such cigarettes have | 11 |
| been
conveyed for resale; and a separate statement, signed | 12 |
| by the individual under
penalty of perjury, which shall not | 13 |
| be treated as confidential or exempt from
disclosure, | 14 |
| separately identifying the brands and brand styles of such
| 15 |
| cigarettes;
and
| 16 |
| (3) a statement, signed by an officer of the | 17 |
| manufacturer or importer
under penalty of perjury, | 18 |
| certifying that the manufacturer or importer has
complied | 19 |
| with:
| 20 |
| (A) the package health warning and ingredient | 21 |
| reporting
requirements of the federal Cigarette | 22 |
| Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 23 |
| with respect to such cigarettes; and
| 24 |
| (B) the provisions of Exhibit T of the Master | 25 |
| Settlement Agreement
entered in
the case of People of | 26 |
| the State of Illinois v. Philip Morris, et al. (Circuit
|
|
|
|
09500SB0801ham003 |
- 54 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Court of Cook County, No. 96-L13146), including a | 2 |
| statement
indicating whether the manufacturer is, or | 3 |
| is not, a participating tobacco
manufacturer within | 4 |
| the meaning of Exhibit T.
| 5 |
| (c) Administrative sanctions.
| 6 |
| (1) Upon finding that a distributor has committed any | 7 |
| of the acts
prohibited by
subsection
(a), knowing or having | 8 |
| reason to know that he or she has done so, or has failed
to | 9 |
| comply
with any requirement of subsection (b), the | 10 |
| Department may revoke or suspend
the
license or licenses of | 11 |
| any
distributor pursuant to the procedures set forth in | 12 |
| Section 6 and impose on the
distributor a civil penalty in | 13 |
| an amount not to exceed the greater of 500% of
the
retail | 14 |
| value of the cigarettes involved or $5,000.
| 15 |
| (2) Cigarettes that are acquired, held, owned, | 16 |
| possessed, transported in,
imported into, or sold or | 17 |
| distributed in this State in violation of this
Section | 18 |
| shall be deemed contraband under this Act and are subject | 19 |
| to seizure
and forfeiture as provided in this Act, and all | 20 |
| such cigarettes seized and
forfeited shall be destroyed. | 21 |
| Such cigarettes shall be deemed contraband
whether the | 22 |
| violation of this Section is knowing or otherwise.
| 23 |
| (d) Unfair trade practices. A violation of subsection (a) | 24 |
| or subsection
(b) of this Section shall constitute an unlawful | 25 |
| practice as provided in the
Consumer Fraud and Deceptive | 26 |
| Business Practices Act.
|
|
|
|
09500SB0801ham003 |
- 55 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (e) Unfair cigarette sales. For purposes of the Trademark | 2 |
| Registration and
Protection Act and the Counterfeit Trademark | 3 |
| Act, cigarettes imported or
reimported into the United States | 4 |
| for sale or distribution under any trade
name, trade dress, or | 5 |
| trademark that is the same as, or is confusingly similar
to, | 6 |
| any trade name, trade dress, or trademark used for cigarettes | 7 |
| manufactured
in the United States for sale or distribution in | 8 |
| the United States shall be
presumed to have been purchased | 9 |
| outside of the ordinary channels of trade.
| 10 |
| (f) General provisions.
| 11 |
| (1) This Section shall be enforced by the Department; | 12 |
| provided that, at
the request of the Director of Revenue or | 13 |
| the Director's duly authorized agent,
the State police and | 14 |
| all local police authorities shall enforce the provisions
| 15 |
| of this Section. The Attorney General has concurrent power | 16 |
| with the State's
Attorney of any county to enforce this | 17 |
| Section.
| 18 |
| (2) For the purpose of enforcing this Section, the | 19 |
| Director of Revenue and
any agency to which the Director | 20 |
| has delegated enforcement
responsibility pursuant to | 21 |
| subdivision (f)(1) may request information from any
State | 22 |
| or local agency and may share information with and request | 23 |
| information
from any federal agency and any agency of any | 24 |
| other state or any local agency
of any other state.
| 25 |
| (3) In addition to any other remedy provided by law, | 26 |
| including
enforcement as provided in subdivision (a)(1), |
|
|
|
09500SB0801ham003 |
- 56 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| any person may bring an action
for appropriate injunctive | 2 |
| or other equitable relief for a violation of this
Section; | 3 |
| actual damages, if any, sustained by reason of the | 4 |
| violation; and, as
determined by the court, interest on the | 5 |
| damages from the date of the
complaint, taxable costs, and | 6 |
| reasonable attorney's fees. If the trier of fact
finds that | 7 |
| the violation is flagrant, it may increase recovery to an | 8 |
| amount not
in excess of 3 times the actual damages | 9 |
| sustained by reason of the violation.
| 10 |
| (g) Definitions. As used in this Section:
| 11 |
| "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 12 |
| "Package" means that term as defined in 15 U.S.C. 1332(4).
| 13 |
| (h) Applicability.
| 14 |
| (1) This Section does not apply to:
| 15 |
| (A) cigarettes allowed to be imported or brought | 16 |
| into the United
States for personal use; and
| 17 |
| (B) cigarettes sold or intended to be sold as | 18 |
| duty-free merchandise
by a duty-free sales enterprise | 19 |
| in accordance with the provisions of 19
U.S.C. 1555(b) | 20 |
| and any implementing regulations; except that this | 21 |
| Section
shall apply to any such cigarettes that are | 22 |
| brought back into the customs
territory for resale | 23 |
| within the customs territory.
| 24 |
| (2) The penalties provided in this Section are in | 25 |
| addition to any other
penalties imposed under other | 26 |
| provision of law.
|
|
|
|
09500SB0801ham003 |
- 57 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (Source: P.A. 91-810, eff. 6-13-00.)
| 2 |
| (35 ILCS 135/3-15 new) | 3 |
| Sec. 3-15. Criminal penalties. | 4 |
| (1) Fraudulent offenses. Whoever intentionally fails to | 5 |
| comply with any of the requirements of this Act or regulations | 6 |
| prescribed hereunder shall, in addition to any other penalty | 7 |
| provided in this Act, for each such offense, be guilty of a | 8 |
| Class 3 felony. | 9 |
| (2) Knowing offenses. Whoever, knowingly violates any of | 10 |
| the requirements of this Act or regulations prescribed | 11 |
| hereunder shall, in addition to any other penalty provided in | 12 |
| this Act, for each such offense, be guilty of a Class 4 felony. | 13 |
| (3) Penalties for contraband. Notwithstanding any other | 14 |
| provision of law, the possession for sale of contraband | 15 |
| cigarettes by a manufacturer, distributor, or retailer shall be | 16 |
| punishable as follows: | 17 |
| (A) A person who commits a first knowing violation | 18 |
| shall be guilty of a Class 4 felony. | 19 |
| (B) A person who commits a subsequent knowing violation | 20 |
| shall be guilty of a Class 3 felony and shall have his or | 21 |
| her license, permit, or certificate of registration | 22 |
| revoked by the Department. In no case shall the fine | 23 |
| imposed under this paragraph exceed ten times the retail | 24 |
| value of the cigarettes. | 25 |
| (4) For purposes of this Section, the term contraband |
|
|
|
09500SB0801ham003 |
- 58 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| cigarettes includes cigarettes that have false manufacturing | 2 |
| labels or packs of cigarettes bearing counterfeit tax stamps. | 3 |
| Any contraband cigarette seized by this State shall be | 4 |
| destroyed. The Department may, prior to any destruction of | 5 |
| cigarettes, permit the true holder of the trademark rights in | 6 |
| the cigarette brand to inspect such contraband cigarettes, in | 7 |
| order to assist the Department in any investigation regarding | 8 |
| such cigarettes. | 9 |
| (5) The penalties provided in paragraph (3) shall not apply | 10 |
| where a licensed distributor is in possession of contraband | 11 |
| cigarettes as a result of such cigarettes being returned to the | 12 |
| distributor by a retailer if such distributor promptly notified | 13 |
| appropriate law enforcement authorities. | 14 |
| (6) Criminal forfeiture. | 15 |
| (A) Notwithstanding any other provision of law, the | 16 |
| knowing possession for sale of contraband cigarettes by a | 17 |
| manufacturer, distributor, or retailer shall, after notice | 18 |
| and hearing, result in the forfeiture to this State of the | 19 |
| product and related machinery and equipment used in the | 20 |
| production of contraband cigarettes, or to falsely mark | 21 |
| cigarettes to reflect the payment of excise taxes. | 22 |
| (B) The knowing sale or possession for sale of | 23 |
| contraband cigarettes shall, after
notice and hearing, | 24 |
| result in the seizure of all related machinery and | 25 |
| equipment. | 26 |
| (C) All cigarettes forfeited to this State under this |
|
|
|
09500SB0801ham003 |
- 59 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Section shall be destroyed. The
Department may, prior to | 2 |
| any destruction of cigarettes, permit the true holder of | 3 |
| the trademark rights in the cigarette brand to inspect such | 4 |
| contraband cigarettes, in order to assist the Department in | 5 |
| any investigation regarding such cigarettes.
| 6 |
| (35 ILCS 135/4) (from Ch. 120, par. 453.34)
| 7 |
| Sec. 4. Distributor's license. A distributor maintaining a | 8 |
| place of business in this State, if required
to procure a | 9 |
| license or allowed to obtain a permit as a distributor under
| 10 |
| the Cigarette Tax Act, need not obtain an additional license or | 11 |
| permit
under this Act, but shall be deemed to be sufficiently | 12 |
| licensed or
registered by virtue of his being licensed or | 13 |
| registered under the
Cigarette Tax Act.
| 14 |
| Every distributor maintaining a place of business in this | 15 |
| State, if not
required to procure a license or allowed to | 16 |
| obtain a permit as a
distributor under the Cigarette Tax Act, | 17 |
| shall make a verified application
to the Department (upon a | 18 |
| form prescribed and furnished by the Department)
for a license | 19 |
| to act as a distributor under this Act. In completing such
| 20 |
| application, the applicant shall furnish such information as | 21 |
| the Department
may reasonably require.
| 22 |
| The annual license fee payable to the Department for each | 23 |
| distributor's
license shall be $250. The purpose of such annual | 24 |
| license fee is to defray
the cost, to the Department, of
| 25 |
| serializing cigarette tax stamps. The applicant for license |
|
|
|
09500SB0801ham003 |
- 60 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| shall pay such
fee to the Department at the time of submitting | 2 |
| the application for license
to the Department.
| 3 |
| Such applicant shall file, with his application, a joint | 4 |
| and several
bond. Such bond shall be executed to the Department | 5 |
| of Revenue, with good
and sufficient surety or sureties | 6 |
| residing or licensed to do business
within the State of | 7 |
| Illinois, in the amount of $2,500, conditioned upon the
true | 8 |
| and faithful compliance by the licensee with all of the | 9 |
| provisions of
this Act. Such bond, or a reissue thereof, or a | 10 |
| substitute therefor, shall
be kept in effect during the entire | 11 |
| period covered by the license. A
separate application for | 12 |
| license shall be made, a separate annual license
fee paid, and | 13 |
| a separate bond filed, for each place of business at or from
| 14 |
| which the applicant proposes to act as a distributor under this | 15 |
| Act and for
which the applicant is not required to procure a | 16 |
| license or allowed to
obtain a permit as a distributor under | 17 |
| the Cigarette Tax Act.
| 18 |
| The following are ineligible to receive a distributor's | 19 |
| license under
this Act:
| 20 |
| (1) a person who is not of good character and | 21 |
| reputation in the
community in which he resides;
| 22 |
| (2) a person who has been convicted of a felony under | 23 |
| any Federal or
State law, if the Department, after | 24 |
| investigation and a hearing, if
requested by the applicant, | 25 |
| determines that such person has not been
sufficiently | 26 |
| rehabilitated to warrant the public trust;
|
|
|
|
09500SB0801ham003 |
- 61 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (3) a corporation, if any officer, manager or director | 2 |
| thereof, or any
stockholder or stockholders owning in the | 3 |
| aggregate more than 5% of the
stock of such corporation, | 4 |
| would not be eligible to receive a license
hereunder for | 5 |
| any reason.
| 6 |
| (4) a person, or any person who owns more than 15 | 7 |
| percent of the ownership interests in a person or a related | 8 |
| party who: | 9 |
| (a) owes, at the time of application, $500 or more | 10 |
| in delinquent cigarette taxes that have been | 11 |
| determined by law to be due and unpaid, unless the | 12 |
| license applicant has entered into an agreement | 13 |
| approved by the Department to pay the amount due; | 14 |
| (b) had a license under this Act revoked within the | 15 |
| past 2 years by the Department for willful misconduct | 16 |
| relating to stolen or contraband cigarettes or has been | 17 |
| convicted of a State or federal crime, punishable by | 18 |
| imprisonment of one year or more, relating to stolen or | 19 |
| contraband cigarettes; | 20 |
| (c) is a distributor who manufactures cigarettes | 21 |
| who is neither (i) a participating manufacturer as | 22 |
| defined in subsection II(jj) of the "Master Settlement | 23 |
| Agreement" as defined in Sections 10 of the Tobacco | 24 |
| Products Manufacturers' Escrow Act and the Tobacco | 25 |
| Products Manufacturers' Escrow Enforcement Act of 2003 | 26 |
| (30 ILCS 168/10 and 30 ILCS 167/10); nor (ii) in full |
|
|
|
09500SB0801ham003 |
- 62 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| compliance with Tobacco Products Manufacturers' Escrow | 2 |
| Act and the Tobacco Products Manufacturers' Escrow | 3 |
| Enforcement Act of 2003 (30 ILCS 168/ and 30 ILCS | 4 |
| 167/); | 5 |
| (d) has been found to have willfully imported or | 6 |
| caused to be imported into the United States for sale | 7 |
| or distribution any cigarette in violation of 19 U.S.C. | 8 |
| 1681a; | 9 |
| (e) has been found to have willfully imported or | 10 |
| caused to be imported into the United States for sale | 11 |
| or distribution or manufactured for sale or | 12 |
| distribution in the United States any cigarette that | 13 |
| does not fully comply with the Federal Cigarette | 14 |
| Labeling and Advertising Act (15 U.S.C. 1331, et seq.); | 15 |
| or | 16 |
| (f) has willfully made a material false statement | 17 |
| in the application or has willfully failed to produce | 18 |
| records required to be maintained by this Act. | 19 |
| Upon approval of such application and bond and payment of | 20 |
| the required
annual license fee, the Department shall issue a | 21 |
| license to the applicant.
Such license shall permit the | 22 |
| applicant to engage in business as a
distributor at or from the | 23 |
| place shown in his application. All licenses
issued by the | 24 |
| Department under this Act shall be valid for not to exceed
one | 25 |
| year after issuance unless sooner revoked, canceled or | 26 |
| suspended as in
this Act provided. No license issued under this |
|
|
|
09500SB0801ham003 |
- 63 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Act is transferable or
assignable. Such license shall be | 2 |
| conspicuously displayed at the place of
business for which it | 3 |
| is issued.
| 4 |
| Any person aggrieved by any decision of the Department | 5 |
| under this Section
may, within 20 days after notice of the | 6 |
| decision, protest and request a
hearing. Upon receiving a | 7 |
| request for a hearing, the Department shall give
notice to the | 8 |
| person requesting the hearing of the time and place fixed for | 9 |
| the
hearing and shall hold a hearing in conformity with the | 10 |
| provisions of this Act
and then issue its final administrative | 11 |
| decision in the matter to that person.
In the absence of a | 12 |
| protest and request for a hearing within 20 days, the
| 13 |
| Department's decision shall become final without any further | 14 |
| determination
being made or notice given.
| 15 |
| (Source: P.A. 91-901, eff. 1-1-01; 92-322, eff. 1-1-02.)
| 16 |
| (35 ILCS 135/26) (from Ch. 120, par. 453.56)
| 17 |
| Sec. 26. Whenever any peace officer of the State or any | 18 |
| duly authorized
officer or employee of the Department shall | 19 |
| have reason to believe that any
violation of this Act has | 20 |
| occurred and that the person so violating the Act
has in his, | 21 |
| her or its possession any original package of cigarettes, not
| 22 |
| tax stamped or tax imprinted underneath the sealed transparent | 23 |
| wrapper of
such original packages, as required by this Act, or | 24 |
| any vending device
containing such original packages to which | 25 |
| stamps have not been affixed, or
on which an authorized |
|
|
|
09500SB0801ham003 |
- 64 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| substitute for stamps has not been imprinted
underneath the | 2 |
| sealed transparent wrapper of such original packages, as
| 3 |
| required by this Act, he may file or cause to be filed his | 4 |
| complaint in
writing, verified by affidavit, with any circuit | 5 |
| court within whose
jurisdiction the premises to be searched are | 6 |
| situated, stating the facts
upon which such belief is founded, | 7 |
| the premises to be searched, and the
property to be seized, and | 8 |
| procure a search warrant and execute the same.
Upon the | 9 |
| execution of such search warrant, the peace officer, or officer | 10 |
| or
employee of the Department, executing such search warrant | 11 |
| shall make due
return thereof to the court issuing the same, | 12 |
| together with an inventory of
the property taken thereunder. | 13 |
| The court shall thereupon issue process
against the owner of | 14 |
| such property if he is known; otherwise, such process
shall be | 15 |
| issued against the person in whose possession the property so
| 16 |
| taken is found, if such person is known. In case of inability | 17 |
| to serve such
process upon the owner or the person in | 18 |
| possession of the property at the
time of its seizure, as | 19 |
| hereinbefore provided, notice of the proceedings
before the | 20 |
| court shall be given as required by the statutes of the State
| 21 |
| governing cases of Attachment. Upon the return of the process | 22 |
| duly served
or upon the posting or publishing of notice made, | 23 |
| as hereinabove provided,
the court or jury, if a jury shall be | 24 |
| demanded, shall proceed to determine
whether or not such | 25 |
| property so seized was held or possessed in violation
of this | 26 |
| Act, or whether, if a vending device has been so seized, it
|
|
|
|
09500SB0801ham003 |
- 65 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| contained at the time of its seizure original packages not tax | 2 |
| stamped or
tax imprinted underneath the sealed transparent | 3 |
| wrapper of such original
packages as required by this Act. In | 4 |
| case of a finding that the original
packages seized were not | 5 |
| tax stamped or tax imprinted underneath the sealed
transparent | 6 |
| wrapper of such original packages in accordance with the
| 7 |
| provisions of this Act, or that any vending device so seized | 8 |
| contained at
the time of its seizure original packages not tax | 9 |
| stamped or tax imprinted
underneath the sealed transparent | 10 |
| wrapper of such original packages in
accordance with the | 11 |
| provisions of this Act, judgment shall be entered
confiscating | 12 |
| and forfeiting the property to the State and ordering its
| 13 |
| delivery to the Department, and in addition thereto, the court | 14 |
| shall have
power to tax and assess the costs of the | 15 |
| proceedings.
| 16 |
| When any original packages or any cigarette vending device | 17 |
| shall have
been declared forfeited to the State by any court, | 18 |
| as hereinbefore
provided, and when such confiscated and | 19 |
| forfeited property shall have been
delivered to the Department, | 20 |
| as provided in this Act, the said Department
shall destroy , or | 21 |
| maintain and use such property in an undercover capacity . The | 22 |
| Department may, prior to any destruction of cigarettes, permit | 23 |
| the true holder of the trademark rights in the cigarette brand | 24 |
| to inspect such contraband cigarettes, in order to assist the | 25 |
| Department in any investigation regarding such cigarettes. , or | 26 |
| sell such property for the best price obtainable and shall |
|
|
|
09500SB0801ham003 |
- 66 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| forthwith
pay over the proceeds of such sale to the State | 2 |
| Treasurer; provided,
however, that if the value of such | 3 |
| property to be sold at any one time
shall be $500 or more, such | 4 |
| property shall be sold only to the highest and
best bidder on | 5 |
| such terms and conditions and on open competitive bidding
after | 6 |
| public advertisement, in such manner and for such terms as the
| 7 |
| Department, by rule, may prescribe.
| 8 |
| Upon making such a sale of original packages of cigarettes | 9 |
| which were
not tax stamped or tax imprinted underneath the | 10 |
| sealed transparent wrapper
of such original packages as | 11 |
| required by this Act, the Department shall
affix a distinctive | 12 |
| stamp to each of the original packages so sold
indicating that | 13 |
| the same are sold pursuant to the provisions of this
Section.
| 14 |
| (Source: P.A. 94-776, eff. 5-19-06.)
| 15 |
| (35 ILCS 135/27) (from Ch. 120, par. 453.57)
| 16 |
| Sec. 27. Destruction or use of forfeited property. When | 17 |
| any original packages of cigarettes or any cigarette vending
| 18 |
| device shall have been declared forfeited to the State by the | 19 |
| Department,
as provided in Section 25 of this Act, and when all | 20 |
| proceedings for the
judicial review of the Department's | 21 |
| decision have terminated, the
Department shall, to the extent | 22 |
| that its decision is sustained on review,
destroy , or maintain | 23 |
| and use such property in an undercover capacity . The Department | 24 |
| may, prior to any destruction of cigarettes, permit the true | 25 |
| holder of the trademark rights in the cigarette brand to |
|
|
|
09500SB0801ham003 |
- 67 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| inspect such contraband cigarettes, in order to assist the | 2 |
| Department in any investigation regarding such cigarettes. , or | 3 |
| sell such property for the best price obtainable and shall | 4 |
| forthwith pay
over the proceeds of such sale to the State | 5 |
| Treasurer; provided, however,
that if the value of such | 6 |
| property to be sold at any one time shall be Five
Hundred | 7 |
| Dollars ($500) or more, such property shall be sold only to the
| 8 |
| highest and best bidder on such terms and conditions and on | 9 |
| open
competitive bidding after public advertisement, in such | 10 |
| manner and for such
terms as the Department, by rule, may | 11 |
| prescribe.
| 12 |
| If no complaint for review, as provided in Section 21 of | 13 |
| this Act, has
been filed within the time required by the | 14 |
| "Administrative Review Law,"
and if no stay order has been | 15 |
| entered thereunder, the Department shall
proceed to sell said | 16 |
| property for the best price obtainable and shall
forthwith pay | 17 |
| over the proceeds of such sale to the State Treasurer;
| 18 |
| provided, however, that if the value of such property to be | 19 |
| sold at any one
time shall be $500 or more, such property shall | 20 |
| be
sold only to the highest and best bidder on such terms and | 21 |
| conditions and
on open competitive bidding after public | 22 |
| advertisement, in such manner and
for such terms as the | 23 |
| Department, by rule, may prescribe.
| 24 |
| Upon making a sale of unstamped original packages of | 25 |
| cigarettes as
provided in this Section, the Department shall | 26 |
| affix a distinctive stamp to
each of the original packages so |
|
|
|
09500SB0801ham003 |
- 68 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| sold indicating that the same are sold
pursuant to the | 2 |
| provisions of this Section.
| 3 |
| (Source: P.A. 94-776, eff. 5-19-06.)
| 4 |
| Section 20. The Prevention of Cigarette Sales to Minors Act | 5 |
| is amended by changing Sections 5 and 10 and by adding Sections | 6 |
| 2, 6, 7, 8, 9, 20, 25, and 30 as follows: | 7 |
| (720 ILCS 678/2 new)
| 8 |
| Sec. 2. Definitions. For the purpose of this Act: | 9 |
| "Clear and conspicuous statement" means the statement is of | 10 |
| sufficient type size to be clearly readable by the recipient of | 11 |
| the communication. | 12 |
| "Consumer" means an individual who acquires or seeks to | 13 |
| acquire cigarettes for personal use. | 14 |
| "Delivery sale" means any sale of cigarettes to a consumer | 15 |
| if: | 16 |
| (a) the consumer submits the order for such sale by | 17 |
| means of a telephone or other method of voice transmission, | 18 |
| the mails, or the Internet or other online service, or the | 19 |
| seller is otherwise not in the physical presence of the | 20 |
| buyer when the request for purchase or order is made; or | 21 |
| (b) the cigarettes are delivered by use of a common | 22 |
| carrier, private delivery
service, or the mails, or the | 23 |
| seller is not in the physical presence of the buyer when | 24 |
| the buyer obtains possession of the cigarettes. |
|
|
|
09500SB0801ham003 |
- 69 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| "Delivery service" means any person (other than a person | 2 |
| that makes a delivery sale) who
delivers to the consumer the | 3 |
| cigarettes sold in a delivery sale. | 4 |
| "Department" means the Department of Revenue. | 5 |
| "Government-issued identification" means a State driver's | 6 |
| license, State identification card, passport, a military | 7 |
| identification or an official naturalization or immigration | 8 |
| document, such as an alien registration recipient card | 9 |
| (commonly known as a "green card") or an immigrant visa. | 10 |
| "Legal minimum age" means the minimum age at which an | 11 |
| individual may legally purchase cigarettes within this State, | 12 |
| as determined by either State or local government. | 13 |
| "Mails" or "mailing" mean the shipment of cigarettes | 14 |
| through the United States Postal Service. | 15 |
| "Out-of-state sale" means a sale of cigarettes to a | 16 |
| consumer located outside of this State where the consumer | 17 |
| submits the order for such sale by means of a telephonic or | 18 |
| other method of voice transmission, the mails or any other | 19 |
| delivery service, facsimile transmission, or the Internet or | 20 |
| other online service and where the cigarettes are delivered by | 21 |
| use of the mails or other delivery service. | 22 |
| "Person" means any individual, corporation, partnership, | 23 |
| limited liability company, association, or other organization | 24 |
| that engages in any for-profit or not-for-profit activities. | 25 |
| "Shipping package" means a container in which packs or | 26 |
| cartons of cigarettes are shipped in connection with a delivery |
|
|
|
09500SB0801ham003 |
- 70 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| sale. | 2 |
| "Shipping documents" means bills of lading, air bills, or | 3 |
| any other documents used to evidence the undertaking by a | 4 |
| delivery service to deliver letters, packages, or other | 5 |
| containers. | 6 |
| "Within this State" means within the exterior limits of the | 7 |
| State of Illinois and includes all territory within these | 8 |
| limits owned by or ceded to the United States of America. | 9 |
| (720 ILCS 678/5)
| 10 |
| Sec. 5. Unlawful shipment or transportation of cigarettes. | 11 |
| (a) It is unlawful for any person engaged in the business | 12 |
| of selling cigarettes to ship or cause to be shipped any | 13 |
| cigarettes unless the person shipping the cigarettes:
| 14 |
| (1) is licensed as a distributor under either
the | 15 |
| Cigarette Tax Act, or the Cigarette Use Tax Act; or
| 16 |
| delivers the cigarettes to a distributor licensed under | 17 |
| either the Cigarette Tax Act or the Cigarette Use Tax Act; | 18 |
| or | 19 |
| (2) ships them to an export warehouse proprietor | 20 |
| pursuant to
Chapter 52 of the Internal Revenue Code, or an | 21 |
| operator of
a customs bonded warehouse pursuant to Section | 22 |
| 1311 or
1555 of Title 19 of the United States Code.
| 23 |
| For purposes of this subsection (a), a person is a licensed | 24 |
| distributor if the person's name appears on a list of licensed | 25 |
| distributors published by the Illinois Department of Revenue.
|
|
|
|
09500SB0801ham003 |
- 71 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| The term cigarette has the same meaning as defined in Section 1 | 2 |
| of the Cigarette Tax Act and Section 1 of the Cigarette Use Tax | 3 |
| Act.
Nothing in this Act prohibits a person licensed as a | 4 |
| distributor under the Cigarette Tax Act or the Cigarette Use | 5 |
| Tax Act from shipping or causing to be shipped any cigarettes | 6 |
| to a registered retailer under the Retailers' Occupation Tax | 7 |
| Act and the Cigarette Tax Act provided the cigarette tax or | 8 |
| cigarette use tax has been paid.
| 9 |
| (b) A common or contract carrier may transport cigarettes | 10 |
| to any individual person in this State only if the carrier | 11 |
| reasonably believes such cigarettes have been received from a | 12 |
| person described in paragraph (a)(1). Common or contract | 13 |
| carriers may make deliveries of cigarettes to licensed | 14 |
| distributors described in paragraph (a)(1) of this Section. | 15 |
| Nothing in this subsection (b) shall be construed to prohibit a | 16 |
| person other than a common or contract carrier from | 17 |
| transporting not more than 1,000 cigarettes at any one time to | 18 |
| any person in this State.
| 19 |
| (c) A common or contract carrier may not complete the | 20 |
| delivery of any cigarettes to persons other than those | 21 |
| described in paragraph (a)(1) of this Section without first | 22 |
| obtaining from the purchaser an official written | 23 |
| identification from any state or federal agency that displays | 24 |
| the person's date of birth or a birth certificate that includes | 25 |
| a reliable confirmation that the purchaser is at least 18 years | 26 |
| of age; that the cigarettes purchased are not intended for |
|
|
|
09500SB0801ham003 |
- 72 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| consumption by an individual who is younger than 18 years of | 2 |
| age; and a written statement signed by the purchaser that | 3 |
| certifies the purchaser's address and that the purchaser is at | 4 |
| least 18 years of age. The statement shall also confirm: (1) | 5 |
| that the purchaser understands that signing another person's | 6 |
| name to the certification is illegal; (2) that the sale of | 7 |
| cigarettes to individuals under 18 years of age is illegal; and | 8 |
| (3) that the purchase of cigarettes by individuals under 18 | 9 |
| years of age is illegal under the laws of Illinois. | 10 |
| (d) When a person engaged in the business of selling
| 11 |
| cigarettes ships or causes to be shipped any cigarettes to any | 12 |
| person in this State, other than in the cigarette | 13 |
| manufacturer's or tobacco products manufacturer's original | 14 |
| container or wrapping, the container or wrapping must be | 15 |
| plainly and visibly marked with the word "cigarettes".
| 16 |
| (e) When a peace officer of this State or any duly | 17 |
| authorized officer or employee of the Illinois Department of | 18 |
| Public Health or Department of Revenue discovers any cigarettes | 19 |
| which have been or which are being shipped or transported in | 20 |
| violation of this Section, he or she shall seize and take | 21 |
| possession of the cigarettes, and the cigarettes shall be | 22 |
| subject to a forfeiture action pursuant to the procedures | 23 |
| provided under the Cigarette Tax Act or Cigarette Use Tax Act.
| 24 |
| (Source: P.A. 93-960, eff. 8-20-04.) | 25 |
| (720 ILCS 678/6 new)
|
|
|
|
09500SB0801ham003 |
- 73 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Sec. 6. Prevention of delivery sales to minors. | 2 |
| (a) No person shall make a delivery sale of cigarettes to | 3 |
| any individual who is
under the legal minimum age. | 4 |
| (b) Each person accepting a purchase order for a delivery | 5 |
| sale shall comply with
the provisions of this Act and all other | 6 |
| laws of this State generally applicable to sales of cigarettes | 7 |
| that occur entirely within this State, including, but not | 8 |
| limited to, those laws imposing: (i) excise taxes; (ii) sales | 9 |
| taxes; (iii) license and revenue-stamping requirements; and | 10 |
| (iv) escrow payment obligations. | 11 |
| (720 ILCS 678/7 new)
| 12 |
| Sec. 7. Age verification and shipping requirements to | 13 |
| prevent delivery sales to minors. | 14 |
| (a) No person, other than a delivery service, shall mail, | 15 |
| ship, or otherwise cause to be delivered a shipping package in | 16 |
| connection with a delivery sale unless the person: | 17 |
| (1) prior to the first delivery sale to the prospective | 18 |
| consumer, obtains
from the prospective consumer a written | 19 |
| certification which includes a statement signed by the | 20 |
| prospective consumer that certifies: | 21 |
| (A) the prospective consumer's current address; | 22 |
| and | 23 |
| (B) that the prospective consumer is at least the | 24 |
| legal minimum age; | 25 |
| (2) informs, in writing, such prospective consumer |
|
|
|
09500SB0801ham003 |
- 74 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| that: | 2 |
| (A) the signing of another person's name to the | 3 |
| certification described in
this Section is illegal; | 4 |
| (B) sales of cigarettes to individuals under the | 5 |
| legal minimum age are
illegal; | 6 |
| (C) the purchase of cigarettes by individuals | 7 |
| under the legal minimum age
is illegal; and | 8 |
| (D) the name and identity of the prospective | 9 |
| consumer may be reported to
the state of the consumer's | 10 |
| current address under the Act of October 19, 1949 (15 | 11 |
| U.S.C. § 375, et seq.), commonly known as the Jenkins | 12 |
| Act; | 13 |
| (3) makes a good faith effort to verify the date of | 14 |
| birth of the prospective
consumer provided pursuant to this | 15 |
| Section by: | 16 |
| (A) comparing the date of birth against a | 17 |
| commercially available database
or | 18 |
| (B) obtaining a photocopy or other image of a | 19 |
| valid, government-issued
identification stating the | 20 |
| date of birth or age of the prospective consumer; | 21 |
| (4) provides to the prospective consumer a notice that | 22 |
| meets the requirements of
subsection (b); | 23 |
| (5) receives payment for the delivery sale from the | 24 |
| prospective consumer by a
credit or debit card that has | 25 |
| been issued in such consumer's name, or by a check or other | 26 |
| written instrument in such consumer's name; and |
|
|
|
09500SB0801ham003 |
- 75 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| (6) ensures that the shipping package is delivered to | 2 |
| the same address as is shown
on the government-issued | 3 |
| identification or contained in the commercially available | 4 |
| database. | 5 |
| (b) The notice required under this Section shall include: | 6 |
| (1) a statement that cigarette sales to consumers below | 7 |
| the legal minimum age are
illegal; | 8 |
| (2) a statement that sales of cigarettes are restricted | 9 |
| to those consumers who
provide verifiable proof of age in | 10 |
| accordance with subsection (a); | 11 |
| (3) a statement that cigarette sales are subject to tax | 12 |
| under Section 2 of the
Cigarette Tax Act (35 ILCS 130/2) | 13 |
| and an explanation of how such tax has been, or is to be, | 14 |
| paid with respect to such delivery sale. | 15 |
| (c) A statement meets the requirement of this Section if: | 16 |
| (1) the statement is clear and conspicuous; | 17 |
| (2) the statement is contained in a printed box set | 18 |
| apart from the other contents of
the communication; | 19 |
| (3) the statement is printed in bold, capital letters; | 20 |
| (4) the statement is printed with a degree of color | 21 |
| contrast between the
background and the printed statement | 22 |
| that is no less than the color contrast between the | 23 |
| background and the largest text used in the communication; | 24 |
| and | 25 |
| (5) for any printed material delivered by electronic | 26 |
| means, the statement appears
at both the top and the bottom |
|
|
|
09500SB0801ham003 |
- 76 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| of the electronic mail message or both the top and the | 2 |
| bottom of the Internet website homepage. | 3 |
| (d) Each person, other than a delivery service, who mails, | 4 |
| ships, or otherwise causes to be delivered a shipping package | 5 |
| in connection with a delivery sale shall: | 6 |
| (1) include as part of the shipping documents a clear | 7 |
| and conspicuous statement
stating: "Cigarettes: Illinois | 8 |
| Law Prohibits Shipping to Individuals Under 18 and Requires | 9 |
| the Payment of All Applicable Taxes"; | 10 |
| (2) use a method of mailing, shipping, or delivery that | 11 |
| requires a signature before
the shipping package is | 12 |
| released to the consumer; and | 13 |
| (3) ensure that the shipping package is not delivered | 14 |
| to any post office box. | 15 |
| (720 ILCS 678/8 new)
| 16 |
| Sec. 8. Registration and reporting requirements to prevent | 17 |
| delivery sales to minors. | 18 |
| (a) Each person who makes a delivery sale of cigarettes to | 19 |
| a consumer located within this
State shall file with the | 20 |
| Department for each individual sale: | 21 |
| (1) a statement setting forth such person's name, trade | 22 |
| name, and the address of
such person's principal place of | 23 |
| business and any other place of business; and | 24 |
| (2) not later than the tenth day of each calendar | 25 |
| month, a memorandum or copy of
the invoice for each and |
|
|
|
09500SB0801ham003 |
- 77 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| every such delivery sale made during the previous calendar | 2 |
| month, which includes the following information: | 3 |
| (A) the name and address of the consumer to whom | 4 |
| such delivery sale
was made; | 5 |
| (B) the brand style or brand styles of the | 6 |
| cigarettes that were sold in such
delivery sale; | 7 |
| (C) the quantity of cigarettes that were sold in | 8 |
| such delivery sale; and | 9 |
| (D) an indication of whether or not the cigarettes | 10 |
| sold in the delivery sale
bore a tax stamp evidencing | 11 |
| payment of the tax under Section 2 of the Cigarette Tax | 12 |
| Act (35 ILCS 130/2). | 13 |
| (b) Each person engaged in business within this State who | 14 |
| makes an out-of-state sale
shall, for each individual sale, | 15 |
| submit to the appropriate tax official of the state in which | 16 |
| the consumer is located the information required in subsection | 17 |
| (a). | 18 |
| (c) Any person that satisfies the requirements of 15 U.S.C. | 19 |
| Section 376 shall be deemed to
satisfy the requirements of | 20 |
| subsections (a) and (b). | 21 |
| (d) The Department is authorized to disclose to the | 22 |
| Attorney General any information
received under this title and | 23 |
| requested by the Attorney General. The Department and the | 24 |
| Attorney General shall share with each other the information | 25 |
| received under this title and may share the information with | 26 |
| other federal, State, or local agencies for purposes of |
|
|
|
09500SB0801ham003 |
- 78 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| enforcement of this title or the laws of the federal government | 2 |
| or of other states. | 3 |
| (e) This Section shall not be construed to impose liability | 4 |
| upon any delivery service, or
officers or employees thereof, | 5 |
| when acting within the scope of business of the delivery | 6 |
| service. | 7 |
| (720 ILCS 678/9 new)
| 8 |
| Sec. 9. Statements for delivery sales. | 9 |
| (a) Each person who makes a delivery sale shall collect and | 10 |
| remit to the Department all excise taxes imposed by this State | 11 |
| with respect to such delivery sale and maintain evidence of | 12 |
| such payment unless the person is located outside the State and | 13 |
| includes a statement on the outside of the shipping package | 14 |
| stating: "Illinois law requires the payment of state taxes on | 15 |
| this shipment of cigarettes. You are legally responsible for | 16 |
| all applicable unpaid state taxes on these cigarettes." | 17 |
| (b) A statement meets the requirements of subsection (a) if | 18 |
| the statement is: | 19 |
| (1) clear and conspicuous; | 20 |
| (2) contained in a printed box set apart from the | 21 |
| shipping label and other markings
contained on the shipping | 22 |
| package; | 23 |
| (3) printed in bold, capital letters; | 24 |
| (4) printed with a degree of color contrast between the | 25 |
| background and the printed
statement that is no less than |
|
|
|
09500SB0801ham003 |
- 79 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| the color contrast between the background and the largest | 2 |
| text used on the shipping label; and | 3 |
| (5) located on the same side of the shipping package as | 4 |
| the shipping label. | 5 |
| (720 ILCS 678/10)
| 6 |
| Sec. 10. Violation. | 7 |
| (a) A person who violates subsection (a), (b), or (c) of | 8 |
| Section 5 or Section 6, 7, 8, or 9 is guilty of a Class A | 9 |
| misdemeanor. A second or subsequent violation of subsection | 10 |
| (a), (b), or (c) of Section 5 or Section 6, 7, 8, or 9 is a | 11 |
| Class 4 felony.
| 12 |
| (b) The Department of Revenue shall impose a civil penalty | 13 |
| not to exceed $5,000 on any person who violates subsection (a), | 14 |
| (b), or (c) of Section 5 or Section 6, 7, 8, or 9 . The | 15 |
| Department of Revenue shall impose a civil penalty not to | 16 |
| exceed $5,000 on any person engaged in the business of selling | 17 |
| cigarettes who ships or causes to be shipped any such | 18 |
| cigarettes to any person in this State in violation of | 19 |
| subsection (d) of Section 5.
| 20 |
| (c) All cigarettes sold or attempted to be sold in a | 21 |
| delivery sale that does not meet the requirements of this Act | 22 |
| shall be forfeited to the State. All cigarettes forfeited to | 23 |
| this State under this Act shall be destroyed. The Department | 24 |
| may, prior to any destruction of cigarettes, permit the true | 25 |
| holder of the trademark rights in the cigarette brand to |
|
|
|
09500SB0801ham003 |
- 80 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| inspect such contraband cigarettes, in order to assist the | 2 |
| Department in any investigation regarding such cigarettes. | 3 |
| (d) (c) Any person aggrieved by any decision of the | 4 |
| Department of Revenue may, within 60 days after notice of that | 5 |
| decision, protest in writing and request a hearing. The | 6 |
| Department of Revenue shall give notice to the person of the | 7 |
| time and place for the hearing and shall hold a hearing before | 8 |
| it issues a final administrative decision. Absent a written | 9 |
| protest within 60 days, the Department's decision shall become | 10 |
| final without any further determination made or notice given.
| 11 |
| (Source: P.A. 93-960, eff. 8-20-04.) | 12 |
| (720 ILCS 678/20 new)
| 13 |
| Sec. 20. Tip line. | 14 |
| (a) Not later than 120 days after the effective date of | 15 |
| this amendatory Act of the 95th General Assembly, the | 16 |
| Department shall establish, publicize, and maintain a | 17 |
| toll-free telephone number to receive information related to | 18 |
| the sale and delivery of contraband cigarettes. | 19 |
| (b) The Attorney General may pay a reward of up to $5,000 | 20 |
| to any person who furnishes information leading to the | 21 |
| Department's collection of excise taxes imposed upon delivery | 22 |
| sales which otherwise would not have been collected but for the | 23 |
| information provided by the person. | 24 |
| (720 ILCS 678/25 new)
|
|
|
|
09500SB0801ham003 |
- 81 - |
LRB095 05480 HLH 53595 a |
|
| 1 |
| Sec. 25. Construction. The requirements imposed by this Act | 2 |
| shall not apply where such application would be contrary to the | 3 |
| Constitution and laws of the United States. | 4 |
| (720 ILCS 678/30 new)
| 5 |
| Sec. 30. Severability. If any provision of this Act is for | 6 |
| any reason held to be unconstitutional or invalid, such holding | 7 |
| shall not affect the constitutionality or validity of the | 8 |
| remaining provisions of this Act, and to this end the | 9 |
| provisions of this Act are expressly declared to be severable.
| 10 |
| Section 99. Effective date. This Act takes effect January | 11 |
| 1, 2010.".
|
|