Full Text of SB2900 97th General Assembly
SB2900 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB2900 Introduced 2/1/2012, by Sen. Terry Link SYNOPSIS AS INTRODUCED: |
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Amends the Cigarette Tax Act and the Cigarette Use Tax Act. Requires a person who engages in the business of operating a cigarette machine in the State to obtain a cigarette machine operator's license from the Department. Provides that cigarettes made, manufactured, or fabricated by a cigarette machine may not be sold, distributed to, or possessed by, manufacturers, distributors, secondary distributors, or retailers, other than cigarette machine operators. Sets forth the amount of the license fee. Contains provisions concerning returns and records. Provides that a person who operates a cigarette machine without a license is guilty of a Class 4 felony. Effective immediately.
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| | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | | FISCAL NOTE ACT MAY APPLY |
| | A BILL FOR |
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| 1 | | AN ACT concerning revenue.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Cigarette Tax Act is amended by changing | 5 | | Sections 1, 2, 3, 3-10, 4a, 4d, 6, 7, 8, 9, 9a, 9d, 10, 11, 18, | 6 | | 18a, 20, 21, 23, and 28a and by adding Sections 4g, 4h, 17, and | 7 | | 26.5 as follows:
| 8 | | (35 ILCS 130/1) (from Ch. 120, par. 453.1)
| 9 | | Sec. 1. For the purposes of this Act:
| 10 | | "Brand Style" means a variety of cigarettes distinguished | 11 | | by the tobacco used, tar and nicotine content, flavoring used, | 12 | | size of the cigarette, filtration on the cigarette or | 13 | | packaging. | 14 | | "Cigarette", means any
roll for smoking made wholly or in | 15 | | part of tobacco irrespective of size
or shape and whether or | 16 | | not such tobacco is flavored, adulterated or
mixed with any | 17 | | other ingredient, and the wrapper or cover of which is
made of | 18 | | paper or any other substance or material except tobacco.
| 19 | | "Cigarette machine" means any machine, equipment, or | 20 | | device used to make, manufacture, or fabricate cigarettes. | 21 | | "Cigarette machine operator" means any person who is | 22 | | engaged in the business of operating a cigarette machine in | 23 | | this State and is licensed by the Department as a cigarette |
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| 1 | | machine operator under Section 4g of this Act. | 2 | | "Contraband cigarettes" means: | 3 | | (a) cigarettes that do not bear a required tax stamp | 4 | | under this Act; | 5 | | (b) cigarettes for which any required federal taxes | 6 | | have not been paid; | 7 | | (c) cigarettes that bear a counterfeit tax stamp; | 8 | | (d) cigarettes that are manufactured, fabricated, | 9 | | assembled, processed, packaged, or labeled by any person | 10 | | other than (i) the owner of the trademark rights in the | 11 | | cigarette brand or (ii) a person that is directly or | 12 | | indirectly authorized by such owner; | 13 | | (e) cigarettes imported into the United States, or | 14 | | otherwise distributed, in violation of the federal | 15 | | Imported Cigarette Compliance Act of 2000 (Title IV of | 16 | | Public Law 106-476); | 17 | | (f) cigarettes that have false manufacturing labels; | 18 | | (g) cigarettes identified in Section 3-10(a)(1) of | 19 | | this Act; or | 20 | | (h) cigarettes that are improperly tax stamped, | 21 | | including cigarettes that bear a tax stamp of another state | 22 | | or taxing jurisdiction ; . | 23 | | (i) cigarettes made, manufactured, or fabricated by a | 24 | | person holding a cigarette machine operator's license | 25 | | under Section 4g of this Act that are in the possession of | 26 | | manufacturers, distributors, secondary distributors, or |
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| 1 | | other retailers for the purpose of resale, regardless of | 2 | | whether the tax has been paid on such cigarettes; | 3 | | (j) cigarettes in the possession of a cigarette machine | 4 | | operator that do not meet the requirements of this Act or | 5 | | the Cigarette Fire Safety Standard Act; or | 6 | | (k) cigarettes in the possession of an individual that | 7 | | do not meet the requirements of Section 3-10 of this Act or | 8 | | the Cigarette Fire Safety Standard Act, unless the | 9 | | cigarettes were made, manufactured, or fabricated by an | 10 | | individual for the individual's own use and consumption | 11 | | without the aid or use of a cigarette machine in the | 12 | | possession of a cigarette machine operator holding a | 13 | | license under Section 4g of this Act. | 14 | | "Person" means any natural individual, firm, partnership, | 15 | | association, joint
stock company, joint adventure, public or | 16 | | private corporation, however formed,
limited liability | 17 | | company, or a receiver, executor, administrator, trustee,
| 18 | | guardian or other representative appointed by order of any | 19 | | court.
| 20 | | "Prior Continuous Compliance Taxpayer" means any person | 21 | | who is licensed
under this Act and who, having been a licensee | 22 | | for a continuous period of 5
years, is determined by the | 23 | | Department not to have been either delinquent
or deficient in | 24 | | the payment of tax liability during that period or
otherwise in | 25 | | violation of this Act. Also, any taxpayer who has, as
verified | 26 | | by the Department, continuously complied with the condition of |
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| 1 | | his
bond or other security under provisions of this Act for a | 2 | | period of 5
consecutive years shall be considered to be a | 3 | | "Prior continuous compliance
taxpayer". In calculating the | 4 | | consecutive period of time described herein
for qualification | 5 | | as a "prior continuous compliance taxpayer", a
consecutive | 6 | | period of time of qualifying compliance immediately prior to
| 7 | | the effective date of this amendatory Act of 1987 shall be | 8 | | credited to any
licensee who became licensed on or before the | 9 | | effective date of this
amendatory Act of 1987.
| 10 | | "Department" means the Department of Revenue.
| 11 | | "Sale" means any transfer, exchange or barter in any manner | 12 | | or by any
means whatsoever for a consideration, and includes | 13 | | and means all sales
made by any person.
| 14 | | "Operate or operating a cigarette machine" means to possess | 15 | | a cigarette machine for the purpose of making the cigarette | 16 | | machine available to individuals who use the cigarette machine | 17 | | to make, manufacture, or fabricate cigarettes for their own use | 18 | | or consumption, and not for resale. For purposes of this Act, | 19 | | the cigarette machine is considered to be operated by the | 20 | | person possessing the cigarette machine. For purposes of this | 21 | | Act, cigarettes made, manufactured, or fabricated by the use of | 22 | | a cigarette machine in the possession of a cigarette machine | 23 | | operator holding a license under Section 4g of this Act are | 24 | | considered to be made, manufactured, and fabricated by the | 25 | | person holding the cigarette machine operator's license and not | 26 | | the individual. |
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| 1 | | "Possess or possessing a cigarette machine" means to own, | 2 | | lease, rent, or have on one's premises a cigarette machine. | 3 | | "Original Package" means the individual packet, box or | 4 | | other container
whatsoever used to contain and to convey | 5 | | cigarettes to the consumer.
| 6 | | "Distributor" means any and each of the following:
| 7 | | (1) Any person engaged in the business of selling | 8 | | cigarettes in this
State who brings or causes to be brought | 9 | | into this State from without
this State any original | 10 | | packages of cigarettes, on which original
packages there is | 11 | | no authorized evidence underneath a sealed transparent
| 12 | | wrapper showing that the tax liability imposed by this Act | 13 | | has been paid
or assumed by the out-of-State seller of such | 14 | | cigarettes, for sale or
other disposition in the course of | 15 | | such business.
| 16 | | (2) Any person who makes, manufactures or fabricates | 17 | | cigarettes in this
State for sale in this State, except a | 18 | | person who makes, manufactures
or fabricates cigarettes as | 19 | | a part of a correctional industries program
for sale to | 20 | | residents incarcerated in penal institutions or resident | 21 | | patients
of a State-operated mental health facility.
| 22 | | (3) Any person who makes, manufactures or fabricates | 23 | | cigarettes
outside this State, which cigarettes are placed | 24 | | in original packages
contained in sealed transparent | 25 | | wrappers, for delivery or shipment into
this State, and who | 26 | | elects to qualify and is accepted by the Department
as a |
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| 1 | | distributor under Section 4b of this Act.
| 2 | | "Place of business" shall mean and include any place where | 3 | | cigarettes
are sold or where cigarettes are manufactured, | 4 | | stored or kept for the
purpose of sale or consumption, | 5 | | including any vessel, vehicle, airplane,
train or vending | 6 | | machine.
| 7 | | "Manufacturer representative" means a director, officer, | 8 | | or employee of a manufacturer who has obtained authority from | 9 | | the Department under Section 4f to maintain representatives in | 10 | | Illinois that provide or sell original packages of cigarettes | 11 | | made, manufactured, or fabricated by the manufacturer to | 12 | | retailers in compliance with Section 4f of this Act to promote | 13 | | cigarettes made, manufactured, or fabricated by the | 14 | | manufacturer. | 15 | | "Business" means any trade, occupation, activity or | 16 | | enterprise
engaged in for the purpose of selling cigarettes in | 17 | | this State.
| 18 | | "Retailer" means any person who engages in the making of | 19 | | transfers of
the ownership of, or title to, cigarettes to a | 20 | | purchaser for use or
consumption and not for resale in any | 21 | | form, for a valuable consideration. For purposes of collecting | 22 | | the tax imposed by this Act, "retailer" also includes a person | 23 | | licensed as a cigarette machine operator under Section 4g of | 24 | | this Act. "Retailer" does not include a person:
| 25 | | (1) who transfers to residents incarcerated in penal | 26 | | institutions
or resident patients of a State-operated |
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| 1 | | mental health facility ownership
of cigarettes made, | 2 | | manufactured, or fabricated as part of a correctional
| 3 | | industries program; or | 4 | | (2) who transfers cigarettes to a not-for-profit | 5 | | research institution that conducts tests concerning the | 6 | | health effects of tobacco products and who does not offer | 7 | | the cigarettes for resale.
| 8 | | "Retailer" shall be construed to include any person who | 9 | | engages in
the making of transfers of the ownership of, or | 10 | | title to, cigarettes to
a purchaser, for use or consumption by | 11 | | any other person to whom such
purchaser may transfer the | 12 | | cigarettes without a valuable consideration,
except a person | 13 | | who transfers to residents incarcerated in penal institutions
| 14 | | or resident patients of a State-operated mental health facility | 15 | | ownership
of cigarettes made, manufactured or fabricated as | 16 | | part of a correctional
industries program.
| 17 | | "Secondary distributor" means any person engaged in the | 18 | | business of selling cigarettes who purchases stamped original | 19 | | packages of cigarettes from a licensed distributor under this | 20 | | Act or the Cigarette Use Tax Act, sells 75% or more of those | 21 | | cigarettes to retailers for resale, and maintains an | 22 | | established business where a substantial stock of cigarettes is | 23 | | available to retailers for resale. | 24 | | "Stamp" or "stamps" mean the indicia required to be affixed | 25 | | on a pack of cigarettes that evidence payment of the tax on | 26 | | cigarettes under Section 2 of this Act. |
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| 1 | | "Related party" means any person that is associated with | 2 | | any other person because he or she: | 3 | | (a) is an officer or director of a business; or | 4 | | (b) is legally recognized as a partner in business. | 5 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10; | 6 | | 97-587, eff. 8-26-11.)
| 7 | | (35 ILCS 130/2) (from Ch. 120, par. 453.2)
| 8 | | Sec. 2. Tax imposed; rate; collection, payment, and | 9 | | distribution;
discount. | 10 | | (a) A tax is imposed upon any person engaged in business as | 11 | | a
retailer of cigarettes in this State at the rate of 5 1/2 | 12 | | mills per
cigarette sold, or otherwise disposed of in the | 13 | | course of such business in
this State. In addition to any other | 14 | | tax imposed by this Act, a tax is
imposed upon any person | 15 | | engaged in business as a retailer of cigarettes in
this State | 16 | | at a rate of 1/2 mill per cigarette sold or otherwise disposed
| 17 | | of in the course of such business in this State on and after | 18 | | January 1,
1947, and shall be paid into the Metropolitan Fair | 19 | | and Exposition Authority
Reconstruction Fund or as otherwise | 20 | | provided in Section 29. On and after December 1, 1985, in | 21 | | addition to any
other tax imposed by this Act, a tax is imposed | 22 | | upon any person engaged in
business as a retailer of cigarettes | 23 | | in this State at a rate of 4 mills per
cigarette sold or | 24 | | otherwise disposed of in the course of such business in
this | 25 | | State. Of the additional tax imposed by this amendatory Act of |
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| 1 | | 1985,
$9,000,000 of the moneys received by the Department of | 2 | | Revenue pursuant to
this Act shall be paid each month into the | 3 | | Common School Fund. On and after
the effective date of this | 4 | | amendatory Act of 1989, in addition to any other tax
imposed by | 5 | | this Act, a tax is imposed upon any person engaged in business | 6 | | as a
retailer of cigarettes at the rate of 5 mills per | 7 | | cigarette sold or
otherwise disposed of in the course of such | 8 | | business in this State.
On and after the effective date of this | 9 | | amendatory Act of 1993, in addition
to any other tax imposed by | 10 | | this Act, a tax is imposed upon any person engaged
in business | 11 | | as a retailer of cigarettes at the rate of 7 mills per | 12 | | cigarette
sold or otherwise disposed of in the course of such | 13 | | business in this State.
On and after December 15, 1997, in | 14 | | addition
to any other tax imposed by this Act, a tax is imposed | 15 | | upon any person engaged
in business as a retailer of cigarettes | 16 | | at the rate of 7 mills per cigarette
sold or otherwise disposed | 17 | | of in the course of such business of this State.
All of the | 18 | | moneys received by the Department of Revenue pursuant to this | 19 | | Act
and the Cigarette Use Tax Act from the additional taxes | 20 | | imposed by this
amendatory Act of 1997, shall be paid each | 21 | | month into the Common School Fund.
On and after July 1, 2002, | 22 | | in addition to any other tax imposed by this Act,
a tax is | 23 | | imposed upon any person engaged in business as a retailer of
| 24 | | cigarettes at the rate of 20.0 mills per cigarette sold or | 25 | | otherwise disposed
of
in the course of such business in this | 26 | | State.
The payment of such taxes shall be evidenced by a stamp |
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| 1 | | affixed to
each original package of cigarettes, or an | 2 | | authorized substitute for such stamp
imprinted on each original | 3 | | package of such cigarettes underneath the sealed
transparent | 4 | | outside wrapper of such original package, as hereinafter | 5 | | provided.
However, such taxes are not imposed upon any activity | 6 | | in such business in
interstate commerce or otherwise, which | 7 | | activity may not under
the Constitution and statutes of the | 8 | | United States be made the subject of
taxation by this State.
| 9 | | Beginning on the effective date of this amendatory Act of | 10 | | the 92nd General
Assembly and through June 30, 2006,
all of the | 11 | | moneys received by the Department of Revenue pursuant to this | 12 | | Act
and the Cigarette Use Tax Act, other than the moneys that | 13 | | are dedicated to the Common
School Fund, shall be distributed | 14 | | each month as follows: first, there shall be
paid into the | 15 | | General Revenue Fund an amount which, when added to the amount
| 16 | | paid into the Common School Fund for that month, equals | 17 | | $33,300,000, except that in the month of August of 2004, this | 18 | | amount shall equal $83,300,000; then, from
the moneys | 19 | | remaining, if any amounts required to be paid into the General
| 20 | | Revenue Fund in previous months remain unpaid, those amounts | 21 | | shall be paid into
the General Revenue Fund;
then, beginning on | 22 | | April 1, 2003, from the moneys remaining, $5,000,000 per
month | 23 | | shall be paid into the School Infrastructure Fund; then, if any | 24 | | amounts
required to be paid into the School Infrastructure Fund | 25 | | in previous months
remain unpaid, those amounts shall be paid | 26 | | into the School Infrastructure
Fund;
then the moneys remaining, |
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| 1 | | if any, shall be paid into the Long-Term Care
Provider Fund.
To | 2 | | the extent that more than $25,000,000 has been paid into the | 3 | | General
Revenue Fund and Common School Fund per month for the | 4 | | period of July 1, 1993
through the effective date of this | 5 | | amendatory Act of 1994 from combined
receipts
of the Cigarette | 6 | | Tax Act and the Cigarette Use Tax Act, notwithstanding the
| 7 | | distribution provided in this Section, the Department of | 8 | | Revenue is hereby
directed to adjust the distribution provided | 9 | | in this Section to increase the
next monthly payments to the | 10 | | Long Term Care Provider Fund by the amount paid to
the General | 11 | | Revenue Fund and Common School Fund in excess of $25,000,000 | 12 | | per
month and to decrease the next monthly payments to the | 13 | | General Revenue Fund and
Common School Fund by that same excess | 14 | | amount.
| 15 | | Beginning on July 1, 2006, all of the moneys received by | 16 | | the Department of Revenue pursuant to this Act and the | 17 | | Cigarette Use Tax Act, other than the moneys that are dedicated | 18 | | to the Common School Fund, shall be distributed each month as | 19 | | follows: first, there shall be paid into the General Revenue | 20 | | Fund an amount that, when added to the amount paid into the | 21 | | Common School Fund for that month, equals $29,200,000; then, | 22 | | from the moneys remaining, if any amounts required to be paid | 23 | | into the General Revenue Fund in previous months remain unpaid, | 24 | | those amounts shall be paid into the General Revenue Fund; then | 25 | | from the moneys remaining, $5,000,000 per month shall be paid | 26 | | into the School Infrastructure Fund; then, if any amounts |
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| 1 | | required to be paid into the School Infrastructure Fund in | 2 | | previous months remain unpaid, those amounts shall be paid into | 3 | | the School Infrastructure Fund; then the moneys remaining, if | 4 | | any, shall be paid into the Long-Term Care Provider Fund.
| 5 | | When any tax imposed herein terminates or has terminated, | 6 | | distributors
and cigarette machine operators who have bought | 7 | | stamps while such tax was in effect and who therefore paid
such | 8 | | tax, but who can show, to the Department's satisfaction, that | 9 | | they
sold the cigarettes to which they affixed such stamps | 10 | | after such tax had
terminated and did not recover the tax or | 11 | | its equivalent from purchasers,
shall be allowed by the | 12 | | Department to take credit for such absorbed tax
against | 13 | | subsequent tax stamp purchases from the Department by such
| 14 | | distributor or cigarette machine operator .
| 15 | | The impact of the tax levied by this Act is imposed upon | 16 | | the retailer
and shall be prepaid or pre-collected by the | 17 | | distributor or cigarette machine operator for the purpose of
| 18 | | convenience and facility only, and the amount of the tax shall | 19 | | be added to
the price of the cigarettes sold by such | 20 | | distributor or cigarette machine operator . Collection of the | 21 | | tax
shall be evidenced by a stamp or stamps affixed to each | 22 | | original package of
cigarettes, as hereinafter provided.
| 23 | | Each distributor and each cigarette machine operator shall | 24 | | collect the tax from the retailer at or before
the time of the | 25 | | sale, shall affix the stamps as hereinafter required, and
shall | 26 | | remit the tax collected from retailers to the Department, as
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| 1 | | hereinafter provided. Any distributor or cigarette machine | 2 | | operator who fails to properly collect and pay
the tax imposed | 3 | | by this Act shall be liable for the tax. Any distributor having
| 4 | | cigarettes to which stamps have been affixed in his possession | 5 | | for sale on the
effective date of this amendatory Act of 1989 | 6 | | shall not be required to pay the
additional tax imposed by this | 7 | | amendatory Act of 1989 on such stamped
cigarettes. Any | 8 | | distributor having cigarettes to which stamps have been affixed
| 9 | | in his or her possession for sale at 12:01 a.m. on the | 10 | | effective date of this
amendatory Act of 1993, is required to | 11 | | pay the additional tax imposed by this
amendatory Act of 1993 | 12 | | on such stamped cigarettes. This payment, less the
discount | 13 | | provided in subsection (b), shall be due when the distributor | 14 | | first
makes a purchase of cigarette tax stamps after the | 15 | | effective date of this
amendatory Act of 1993, or on the first | 16 | | due date of a return under this Act
after the effective date of | 17 | | this amendatory Act of 1993, whichever occurs
first. Any | 18 | | distributor having cigarettes to which stamps have been affixed
| 19 | | in his possession for sale on December 15, 1997
shall not be | 20 | | required to pay the additional tax imposed by this amendatory | 21 | | Act
of 1997 on such stamped cigarettes.
| 22 | | Any distributor having cigarettes to which stamps have been | 23 | | affixed in his
or her
possession for sale on July 1, 2002 shall | 24 | | not be required to pay the additional
tax imposed by this | 25 | | amendatory Act of the 92nd General Assembly on those
stamped
| 26 | | cigarettes.
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| 1 | | Distributors making sales of cigarettes to secondary | 2 | | distributors shall add the amount of the tax to the price of | 3 | | the cigarettes sold by the distributors. Secondary | 4 | | distributors making sales of cigarettes to retailers shall | 5 | | include the amount of the tax in the price of the cigarettes | 6 | | sold to retailers. The amount of tax shall not be less than the | 7 | | amount of taxes imposed by the State and all local | 8 | | jurisdictions. The amount of local taxes shall be calculated | 9 | | based on the location of the retailer's place of business shown | 10 | | on the retailer's certificate of registration or | 11 | | sub-registration issued to the retailer pursuant to Section 2a | 12 | | of the Retailers' Occupation Tax Act. The original packages of | 13 | | cigarettes sold to the retailer shall bear all the required | 14 | | stamps, or other indicia, for the taxes included in the price | 15 | | of cigarettes. | 16 | | The amount of the Cigarette Tax imposed by this Act shall | 17 | | be separately
stated, apart from the price of the goods, by | 18 | | distributors, cigarette machine operators, manufacturer | 19 | | representatives, secondary distributors, and
retailers, in all | 20 | | bills and sales invoices.
| 21 | | (b) The distributor or cigarette machine operator shall be | 22 | | required to collect the taxes provided
under paragraph (a) | 23 | | hereof, and, to cover the costs of such collection,
shall be | 24 | | allowed a discount during any year commencing July 1st and | 25 | | ending
the following June 30th in accordance with the schedule | 26 | | set out
hereinbelow, which discount shall be allowed at the |
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| 1 | | time of purchase of the
stamps when purchase is required by | 2 | | this Act, or at the time when the tax
is remitted to the | 3 | | Department without the purchase of stamps from the
Department | 4 | | when that method of paying the tax is required or authorized by
| 5 | | this Act. Prior to December 1, 1985, a discount equal to 1 2/3% | 6 | | of
the amount of the tax up to and including the first $700,000 | 7 | | paid hereunder by
such distributor to the Department during any | 8 | | such year; 1 1/3% of the next
$700,000 of tax or any part | 9 | | thereof, paid hereunder by such distributor to the
Department | 10 | | during any such year; 1% of the next $700,000 of tax, or any | 11 | | part
thereof, paid hereunder by such distributor to the | 12 | | Department during any such
year, and 2/3 of 1% of the amount of | 13 | | any additional tax paid hereunder by such
distributor to the | 14 | | Department during any such year shall apply. On and after
| 15 | | December 1, 1985, a discount equal to 1.75% of the amount of | 16 | | the tax payable
under this Act up to and including the first | 17 | | $3,000,000 paid hereunder by such
distributor or cigarette | 18 | | machine operator to the Department during any such year and | 19 | | 1.5% of the amount of
any additional tax paid hereunder by such | 20 | | distributor or cigarette machine operator to the Department | 21 | | during
any such year shall apply.
| 22 | | Two or more distributors that use a common means of | 23 | | affixing revenue tax
stamps or that are owned or controlled by | 24 | | the same interests shall be
treated as a single distributor for | 25 | | the purpose of computing the discount.
| 26 | | (c) The taxes herein imposed are in addition to all other |
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| 1 | | occupation or
privilege taxes imposed by the State of Illinois, | 2 | | or by any political
subdivision thereof, or by any municipal | 3 | | corporation.
| 4 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 5 | | (35 ILCS 130/3) (from Ch. 120, par. 453.3)
| 6 | | Sec. 3. Affixing tax stamp; remitting tax to the | 7 | | Department. Payment of
the taxes imposed by Section 2 of this | 8 | | Act shall
(except as hereinafter provided) be evidenced by | 9 | | revenue tax stamps affixed
to each original package of | 10 | | cigarettes. Each distributor of cigarettes and each cigarette | 11 | | machine operator ,
before delivering or causing to be delivered | 12 | | any original package of
cigarettes in this State to a | 13 | | purchaser, shall firmly affix a proper stamp
or stamps to each | 14 | | such package, or (in case of manufacturers of cigarettes
in | 15 | | original packages which are contained inside a sealed | 16 | | transparent
wrapper) shall imprint the required language on the | 17 | | original package of
cigarettes beneath such outside wrapper, as | 18 | | hereinafter provided.
| 19 | | No stamp or imprint may be affixed to, or made upon, any | 20 | | package of
cigarettes unless that package complies with all | 21 | | requirements of the federal
Cigarette Labeling and Advertising | 22 | | Act, 15 U.S.C. 1331 and following, for the
placement of labels, | 23 | | warnings, or any other information upon a package of
cigarettes | 24 | | that is sold within the United States. Under the authority of
| 25 | | Section 6, the Department shall revoke the license of any |
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| 1 | | distributor or cigarette machine operator that is
determined to | 2 | | have violated this paragraph.
A person may not affix a stamp on | 3 | | a package of cigarettes, cigarette papers,
wrappers, or tubes | 4 | | if that individual package has been marked for export
outside | 5 | | the United States with a label or notice in compliance with | 6 | | Section
290.185 of Title 27 of the Code of Federal Regulations. | 7 | | It is not a defense to
a proceeding for violation of this | 8 | | paragraph that the label or notice has been
removed, mutilated, | 9 | | obliterated, or altered in any manner.
| 10 | | Only distributors licensed under this Act and | 11 | | transporters, as defined in Section 9c of this Act, may possess | 12 | | unstamped original packages of cigarettes. Prior to shipment to | 13 | | a secondary distributor or an Illinois retailer, a stamp shall | 14 | | be applied to each original package of cigarettes sold to the | 15 | | secondary distributor or retailer. Prior to removal from the | 16 | | cigarette machine operator's licensed place of business, a | 17 | | stamp or stamps shall be applied to each original package of | 18 | | cigarettes made, manufactured, or fabricated by the cigarette | 19 | | machine operator. A distributor may apply tax stamps only to | 20 | | original packages of cigarettes purchased or obtained directly | 21 | | from an in-state maker, manufacturer, or fabricator licensed as | 22 | | a distributor under Section 4 of this Act or an out-of-state | 23 | | maker, manufacturer, or fabricator holding a permit under | 24 | | Section 4b of this Act. A cigarette machine operator may apply | 25 | | tax stamps only to original packages of cigarettes made, | 26 | | manufactured, or fabricated by a cigarette machine located at |
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| 1 | | the cigarette machine operator's licensed place of business. A | 2 | | licensed distributor may ship or otherwise cause to be | 3 | | delivered unstamped original packages of cigarettes in, into, | 4 | | or from this State. A licensed distributor may transport | 5 | | unstamped original packages of cigarettes to a facility, | 6 | | wherever located, owned or controlled by such distributor; | 7 | | however, a distributor may not transport unstamped original | 8 | | packages of cigarettes to a facility where retail sales of | 9 | | cigarettes take place or to a facility where a secondary | 10 | | distributor makes sales for resale. Any licensed distributor | 11 | | that ships or otherwise causes to be delivered unstamped | 12 | | original packages of cigarettes into, within, or from this | 13 | | State shall ensure that the invoice or equivalent documentation | 14 | | and the bill of lading or freight bill for the shipment | 15 | | identifies the true name and address of the consignor or | 16 | | seller, the true name and address of the consignee or | 17 | | purchaser, and the quantity by brand style of the cigarettes so | 18 | | transported, provided that this Section shall not be construed | 19 | | as to impose any requirement or liability upon any common or | 20 | | contract carrier. A cigarette machine operator may not ship or | 21 | | otherwise cause to be delivered stamped or unstamped original | 22 | | packages of cigarettes made, manufactured, or fabricated by a | 23 | | cigarette machine located at the cigarette machine operator's | 24 | | licensed place of business into, within, or from this State. | 25 | | The Department, or any person authorized by the Department, | 26 | | shall
sell such stamps only to persons holding valid
licenses |
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| 1 | | as distributors under this Act or holding valid licenses as | 2 | | cigarette machine operators under this Act . On and after July | 3 | | 1, 2003, payment
for such stamps must be made by means of
| 4 | | electronic funds transfer. The Department may refuse to sell | 5 | | stamps to any
person who does not comply
with the provisions of | 6 | | this Act.
Beginning on the effective date of this amendatory | 7 | | Act of the 92nd General
Assembly and through June 30, 2002, | 8 | | persons holding valid licenses as
distributors
may purchase | 9 | | cigarette tax stamps up to an amount equal to 115% of the
| 10 | | distributor's average monthly cigarette tax stamp purchases | 11 | | over the 12
calendar
months prior to the effective date of this | 12 | | amendatory Act of the 92nd General
Assembly.
| 13 | | Prior to December 1, 1985, the Department shall allow a | 14 | | distributor
21 days in which to make final
payment of the | 15 | | amount to be paid for such stamps, by allowing the
distributor | 16 | | to make payment for the stamps at the time of purchasing them
| 17 | | with a draft which shall be in such form as the Department | 18 | | prescribes, and
which shall be payable within 21 days | 19 | | thereafter: Provided that such
distributor has filed with the | 20 | | Department, and has received the
Department's approval of, a | 21 | | bond, which is in addition to the bond required
under Section 4 | 22 | | of this Act, payable to the Department in an amount equal
to | 23 | | 80% of such distributor's average monthly tax liability to
the | 24 | | Department under this Act during the preceding calendar year or | 25 | | $500,000,
whichever is less. The Bond shall be joint and
| 26 | | several and shall be in the form of a surety company bond in |
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| 1 | | such form as
the Department prescribes, or it may be in the | 2 | | form of a bank certificate
of deposit or bank letter of credit. | 3 | | The bond shall be conditioned upon the
distributor's payment of | 4 | | amount of any 21-day draft which the Department
accepts from | 5 | | that distributor for the delivery of stamps to that
distributor | 6 | | under this Act. The distributor's failure to pay any such
| 7 | | draft, when due, shall also make such distributor automatically | 8 | | liable to
the Department for a penalty equal to 25% of the | 9 | | amount of such draft.
| 10 | | On and after December 1, 1985 and until July 1, 2003, the | 11 | | Department
shall allow a distributor
30 days in which to make
| 12 | | final payment of the amount to be paid for such stamps, by | 13 | | allowing the
distributor to make payment for the stamps at the | 14 | | time of purchasing them
with a draft which shall be in such | 15 | | form as the Department prescribes, and
which shall be payable | 16 | | within 30 days thereafter, and beginning on January 1,
2003 and | 17 | | thereafter, the draft shall be payable by means of electronic | 18 | | funds
transfer: Provided that such
distributor has filed with | 19 | | the Department, and has received the
Department's approval of, | 20 | | a bond, which is in addition to the bond required
under Section | 21 | | 4 of this Act, payable to the Department in an amount equal
to | 22 | | 150% of such distributor's average monthly tax liability to the
| 23 | | Department under this Act during the preceding calendar year or | 24 | | $750,000,
whichever is less, except that as to bonds filed on | 25 | | or after January 1,
1987, such additional bond shall be in an | 26 | | amount equal to 100% of such
distributor's average monthly tax |
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| 1 | | liability under this Act during the
preceding calendar year or | 2 | | $750,000, whichever is less. The bond shall be
joint and | 3 | | several and shall be in the form of a surety company bond in | 4 | | such
form as the Department prescribes, or it may be in the | 5 | | form of a bank
certificate of deposit or bank letter of credit.
| 6 | | The bond shall be conditioned upon the distributor's payment of | 7 | | the amount
of any 30-day draft which the Department accepts | 8 | | from that distributor for
the delivery of stamps to that | 9 | | distributor under this Act. The
distributor's failure to pay | 10 | | any such draft, when due, shall also make such
distributor | 11 | | automatically liable to the Department for a penalty equal to
| 12 | | 25% of the amount of such draft.
| 13 | | Every prior continuous compliance taxpayer shall be exempt | 14 | | from all
requirements under this Section concerning the | 15 | | furnishing of such bond, as
defined in this Section, as a | 16 | | condition precedent to his being authorized
to engage in the | 17 | | business licensed under this Act. This exemption shall
continue | 18 | | for each such taxpayer until such time as he may be determined | 19 | | by
the Department to be delinquent in the filing of any | 20 | | returns, or is
determined by the Department (either through the | 21 | | Department's issuance of a
final assessment which has become | 22 | | final under the Act, or by the taxpayer's
filing of a return | 23 | | which admits tax to be due that is not paid) to be
delinquent | 24 | | or deficient in the paying of any tax under this Act, at which
| 25 | | time that taxpayer shall become subject to the bond | 26 | | requirements of this
Section and, as a condition of being |
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| 1 | | allowed to continue to engage in the
business licensed under | 2 | | this Act, shall be required to furnish bond to the
Department | 3 | | in such form as provided in this Section. Such taxpayer shall
| 4 | | furnish such bond for a period of 2 years, after which, if the | 5 | | taxpayer has
not been delinquent in the filing of any returns, | 6 | | or delinquent or
deficient in the paying of any tax under this | 7 | | Act, the Department may
reinstate such person as a prior | 8 | | continuance compliance taxpayer. Any
taxpayer who fails to pay | 9 | | an admitted or established liability under this
Act may also be | 10 | | required to post bond or other acceptable security with the
| 11 | | Department guaranteeing the payment of such admitted or | 12 | | established liability.
| 13 | | Any person aggrieved by any decision of the Department | 14 | | under this
Section may, within the time allowed by law, protest | 15 | | and request a hearing,
whereupon the Department shall give | 16 | | notice and shall hold a hearing in
conformity with the | 17 | | provisions of this Act and then issue its final
administrative | 18 | | decision in the matter to such person. In the absence of
such a | 19 | | protest filed within the time allowed by law, the Department's
| 20 | | decision shall become final without any further determination | 21 | | being made or
notice given.
| 22 | | The Department shall discharge any surety and shall release | 23 | | and return
any bond or security deposited, assigned, pledged, | 24 | | or otherwise provided to
it by a taxpayer under this Section | 25 | | within 30 days after:
| 26 | | (1) Such taxpayer becomes a prior continuous compliance |
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| 1 | | taxpayer; or
| 2 | | (2) Such taxpayer has ceased to collect receipts on which | 3 | | he is
required to remit tax to the Department, has filed a | 4 | | final tax return, and
has paid to the Department an amount | 5 | | sufficient to discharge his remaining
tax liability as | 6 | | determined by the Department under this Act. The
Department | 7 | | shall make a final determination of the taxpayer's outstanding
| 8 | | tax liability as expeditiously as possible after his final tax | 9 | | return has
been filed. If the Department cannot make such final | 10 | | determination within
45 days after receiving the final tax | 11 | | return, within such period it shall
so notify the taxpayer, | 12 | | stating its reasons therefor.
| 13 | | The Department may authorize distributors to affix revenue | 14 | | tax stamps by
imprinting tax meter stamps upon original | 15 | | packages of cigarettes. The
Department shall adopt rules and | 16 | | regulations relating to the imprinting of
such tax meter stamps | 17 | | as will result in payment of the proper taxes as
herein | 18 | | imposed. No distributor may affix revenue tax stamps to | 19 | | original
packages of cigarettes by imprinting tax meter stamps | 20 | | thereon unless such
distributor has first obtained permission | 21 | | from the Department to employ
this method of affixation. The | 22 | | Department shall regulate the use of tax
meters and may, to | 23 | | assure the proper collection of the taxes imposed by
this Act, | 24 | | revoke or suspend the privilege, theretofore granted by the
| 25 | | Department to any distributor, to imprint tax meter stamps upon | 26 | | original
packages of cigarettes.
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| 1 | | Illinois cigarette manufacturers who place their | 2 | | cigarettes in original
packages which are contained inside a | 3 | | sealed transparent wrapper, and
similar out-of-State cigarette | 4 | | manufacturers who elect to qualify and are
accepted by the | 5 | | Department as distributors under Section 4b(a) of this Act,
| 6 | | shall pay the taxes imposed by this Act by remitting the amount | 7 | | thereof to
the Department by the 5th day of each month covering | 8 | | cigarettes shipped or
otherwise delivered in Illinois to | 9 | | purchasers during the preceding calendar
month. Such | 10 | | manufacturers of cigarettes in original packages which are
| 11 | | contained inside a sealed transparent wrapper, before | 12 | | delivering such
cigarettes or causing such cigarettes to be | 13 | | delivered in this State to
purchasers, shall evidence their | 14 | | obligation to remit the taxes due with
respect to such | 15 | | cigarettes by imprinting language to be prescribed by the
| 16 | | Department on each original package of such cigarettes | 17 | | underneath the
sealed transparent outside wrapper of such | 18 | | original package, in such place
thereon and in such manner as | 19 | | the Department may designate. Such imprinted
language shall | 20 | | acknowledge the manufacturer's payment of or liability for
the | 21 | | tax imposed by this Act with respect to the distribution of | 22 | | such
cigarettes.
| 23 | | A distributor shall not affix, or cause to be affixed, any | 24 | | stamp or imprint
to a package of cigarettes, as provided for in | 25 | | this Section, if the tobacco
product
manufacturer, as defined | 26 | | in Section 10 of the Tobacco Product Manufacturers'
Escrow
Act, |
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| 1 | | that made or sold the cigarettes has failed to become a | 2 | | participating
manufacturer, as defined in subdivision (a)(1) | 3 | | of Section 15 of the Tobacco
Product
Manufacturers' Escrow Act, | 4 | | or has failed to create a qualified escrow fund for
any | 5 | | cigarettes manufactured by the tobacco product manufacturer | 6 | | and sold in
this State or otherwise failed to bring itself into | 7 | | compliance with subdivision
(a)(2) of Section 15 of the Tobacco | 8 | | Product
Manufacturers' Escrow Act.
| 9 | | A cigarette machine operator shall not affix, or cause to | 10 | | be affixed, any stamp or imprint to an original package of | 11 | | cigarettes, as provided for in this Section, if the cigarette | 12 | | machine operator has failed to become a participating | 13 | | manufacturer, as defined in item (1) of subsection (a) of | 14 | | Section 15 of the Tobacco Product Manufacturers' Escrow Act, or | 15 | | has failed to create a qualified escrow fund for any cigarettes | 16 | | manufactured by the tobacco product manufacturer and sold in | 17 | | this State or otherwise failed to bring itself into compliance | 18 | | with item (2) of subsection (a) of Section 15 of the Tobacco | 19 | | Product Manufacturers' Escrow Act. | 20 | | A cigarette machine operator shall not affix, or cause to | 21 | | be affixed, any stamp or imprint to an original package of | 22 | | cigarettes, as provided for in this Section, unless the | 23 | | cigarette machine operator and the cigarettes contained in such | 24 | | package have complied with the Cigarette Fire Safety Standards | 25 | | Act. | 26 | | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10; |
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| 1 | | 96-1027, eff. 7-12-10.)
| 2 | | (35 ILCS 130/3-10)
| 3 | | Sec. 3-10. Cigarette enforcement.
| 4 | | (a) Prohibitions. It is unlawful for any person:
| 5 | | (1) to sell or distribute in this State; to acquire, | 6 | | hold, own, possess,
or
transport, for sale or distribution | 7 | | in this State; or to import, or cause to be
imported into | 8 | | this State for sale or distribution in this State:
| 9 | | (A) any cigarettes the package of which:
| 10 | | (i) bears any statement, label, stamp, | 11 | | sticker, or notice
indicating that the | 12 | | manufacturer did not intend the cigarettes to be
| 13 | | sold, distributed, or used in the United States, | 14 | | including but not
limited to labels stating "For | 15 | | Export Only", "U.S. Tax Exempt",
"For Use Outside | 16 | | U.S.", or similar wording; or
| 17 | | (ii) does not comply with:
| 18 | | (aa) all requirements imposed by or | 19 | | pursuant to
federal law regarding warnings and | 20 | | other information on
packages of cigarettes | 21 | | manufactured, packaged, or imported
for sale, | 22 | | distribution, or use in the United States, | 23 | | including
but not limited to the precise | 24 | | warning labels specified in the
federal | 25 | | Cigarette Labeling and Advertising Act, 15 |
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| 1 | | U.S.C.
1333; and
| 2 | | (bb) all federal trademark and copyright | 3 | | laws;
| 4 | | (B) any cigarettes imported into the United States | 5 | | in violation of
26 U.S.C. 5754 or any other federal | 6 | | law, or implementing federal
regulations;
| 7 | | (C) any cigarettes that such person otherwise | 8 | | knows or has reason
to know the manufacturer did not | 9 | | intend to be sold, distributed, or used in
the United | 10 | | States; or
| 11 | | (D) any cigarettes for which there has not been | 12 | | submitted to the
Secretary of the U.S. Department of | 13 | | Health and Human Services the list or
lists of the | 14 | | ingredients added to tobacco in the manufacture of the
| 15 | | cigarettes required by the federal Cigarette Labeling | 16 | | and Advertising Act,
15 U.S.C. 1335a;
| 17 | | (2) to alter the package of any cigarettes, prior to | 18 | | sale or distribution
to
the
ultimate consumer, so as to | 19 | | remove, conceal, or obscure:
| 20 | | (A) any statement, label, stamp, sticker, or | 21 | | notice described in
subdivision (a)(1)(A)(i) of this | 22 | | Section;
| 23 | | (B) any health warning that is not specified in, or | 24 | | does not conform
with the requirements of, the federal | 25 | | Cigarette Labeling and Advertising
Act, 15 U.S.C. | 26 | | 1333; or
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| 1 | | (3) to affix any stamp required pursuant to this Act to | 2 | | the package of any
cigarettes described in subdivision | 3 | | (a)(1) of this Section or altered in
violation of
| 4 | | subdivision (a)(2).
| 5 | | (b) Documentation. On the first business day of each month, | 6 | | each person
licensed
to affix the State tax stamp to cigarettes | 7 | | shall file with the Department, for
all cigarettes
imported | 8 | | into the United States to which the person has affixed the tax | 9 | | stamp
in the
preceding month:
| 10 | | (1) a copy of:
| 11 | | (A) the permit issued pursuant to the Internal | 12 | | Revenue Code, 26
U.S.C. 5713, to the person importing | 13 | | the cigarettes into the United States
allowing the | 14 | | person to import the cigarettes; and
| 15 | | (B) the customs form containing, with respect to | 16 | | the cigarettes, the
internal revenue tax information | 17 | | required by the U.S. Bureau of Alcohol,
Tobacco and | 18 | | Firearms;
| 19 | | (2) a statement, signed by the person under penalty of | 20 | | perjury, which shall
be treated as confidential by the | 21 | | Department and exempt from disclosure under
the Freedom of | 22 | | Information Act, identifying the brand and brand styles of | 23 | | all such
cigarettes, the quantity of each brand style of | 24 | | such cigarettes, the supplier of such
cigarettes, and the | 25 | | person or persons, if any, to whom such cigarettes have | 26 | | been
conveyed for resale; and a separate statement, signed |
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| 1 | | by the individual under
penalty of perjury, which shall not | 2 | | be treated as confidential or exempt from
disclosure, | 3 | | separately identifying the brands and brand styles of such
| 4 | | cigarettes;
and
| 5 | | (3) a statement, signed by an officer of the | 6 | | manufacturer or importer
under penalty of perjury, | 7 | | certifying that the manufacturer or importer has
complied | 8 | | with:
| 9 | | (A) the package health warning and ingredient | 10 | | reporting
requirements of the federal Cigarette | 11 | | Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 12 | | with respect to such cigarettes; and
| 13 | | (B) the provisions of Exhibit T of the Master | 14 | | Settlement Agreement
entered in
the case of People of | 15 | | the State of Illinois v. Philip Morris, et al. (Circuit
| 16 | | Court of Cook County, No. 96-L13146), including a | 17 | | statement
indicating whether the manufacturer is, or | 18 | | is not, a participating tobacco
manufacturer within | 19 | | the meaning of Exhibit T.
| 20 | | (c) Administrative sanctions.
| 21 | | (1) Upon finding that a distributor, cigarette machine | 22 | | operator, secondary distributor, or person has committed | 23 | | any of the acts
prohibited by
subsection
(a), knowing or | 24 | | having reason to know that he or she has done so, or upon | 25 | | finding that a distributor or person has failed
to comply
| 26 | | with any requirement of subsection (b), the Department
may |
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| 1 | | revoke or suspend the license or licenses of any
| 2 | | distributor , or secondary distributor , or cigarette | 3 | | machine operator pursuant to the procedures set forth in | 4 | | Section 6 and impose, on the
distributor, secondary | 5 | | distributor, cigarette machine operator, or person, a | 6 | | civil penalty in an amount not to exceed the greater of | 7 | | 500% of
the
retail value of the cigarettes involved or | 8 | | $5,000.
| 9 | | (2) Cigarettes that are acquired, held, owned, | 10 | | possessed, transported in,
imported into, or sold or | 11 | | distributed in this State in violation of this
Section | 12 | | shall be deemed contraband under this Act and are subject | 13 | | to seizure
and forfeiture as provided in this Act, and all | 14 | | such cigarettes seized and
forfeited shall be destroyed or | 15 | | maintained and used in an undercover capacity. Such | 16 | | cigarettes shall be deemed contraband
whether the | 17 | | violation of this Section is knowing or otherwise.
| 18 | | (d) Unfair trade practices. In addition to any other | 19 | | penalties provided for in this Act, a violation of subsection | 20 | | (a) or subsection
(b) of this Section shall constitute an | 21 | | unlawful practice as provided in the
Consumer Fraud and | 22 | | Deceptive Business Practices Act.
| 23 | | (d-1) Retailers and secondary distributors shall not be | 24 | | liable under subsections (c)(1) and (d) of this Section for | 25 | | unknowingly possessing, selling, or distributing to consumers | 26 | | or users cigarettes identified in subsection (a)(1) of this |
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| 1 | | Section if the cigarettes possessed, sold, or distributed by | 2 | | the retailer or secondary distributor were obtained from a | 3 | | distributor licensed under this Act. | 4 | | (e) Unfair cigarette sales. For purposes of the Trademark | 5 | | Registration and
Protection Act and the Counterfeit Trademark | 6 | | Act, cigarettes imported or
reimported into the United States | 7 | | for sale or distribution under any trade
name, trade dress, or | 8 | | trademark that is the same as, or is confusingly similar
to, | 9 | | any trade name, trade dress, or trademark used for cigarettes | 10 | | manufactured
in the United States for sale or distribution in | 11 | | the United States shall be
presumed to have been purchased | 12 | | outside of the ordinary channels of trade.
| 13 | | (f) General provisions.
| 14 | | (1) This Section shall be enforced by the Department; | 15 | | provided that, at
the request of the Director of Revenue or | 16 | | the Director's duly authorized agent,
the State police and | 17 | | all local police authorities shall enforce the provisions
| 18 | | of this Section. The Attorney General has concurrent power | 19 | | with the State's
Attorney of any county to enforce this | 20 | | Section.
| 21 | | (2) For the purpose of enforcing this Section, the | 22 | | Director of Revenue and
any agency to which the Director | 23 | | has delegated enforcement
responsibility pursuant to | 24 | | subdivision (f)(1) may request information from any
State | 25 | | or local agency and may share information with and request | 26 | | information
from any federal agency and any agency of any |
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| 1 | | other state or any local agency
of any other state.
| 2 | | (3) In addition to any other remedy provided by law, | 3 | | including
enforcement as provided in subdivision (a)(1), | 4 | | any person may bring an action
for appropriate injunctive | 5 | | or other equitable relief for a violation of this
Section; | 6 | | actual damages, if any, sustained by reason of the | 7 | | violation; and, as
determined by the court, interest on the | 8 | | damages from the date of the
complaint, taxable costs, and | 9 | | reasonable attorney's fees. If the trier of fact
finds that | 10 | | the violation is flagrant, it may increase recovery to an | 11 | | amount not
in excess of 3 times the actual damages | 12 | | sustained by reason of the violation.
| 13 | | (g) Definitions. As used in this Section:
| 14 | | "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 15 | | "Package" means that term as defined in 15 U.S.C. 1332(4).
| 16 | | (h) Applicability.
| 17 | | (1) This Section does not apply to:
| 18 | | (A) cigarettes allowed to be imported or brought | 19 | | into the United
States for personal use; and
| 20 | | (B) cigarettes sold or intended to be sold as | 21 | | duty-free merchandise
by a duty-free sales enterprise | 22 | | in accordance with the provisions of 19
U.S.C. 1555(b) | 23 | | and any implementing regulations; except that this | 24 | | Section
shall apply to any such cigarettes that are | 25 | | brought back into the customs
territory for resale | 26 | | within the customs territory.
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| 1 | | (2) The penalties provided in this Section are in | 2 | | addition to any other
penalties imposed under other | 3 | | provision of law.
| 4 | | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10; | 5 | | 96-1027, eff. 7-12-10.)
| 6 | | (35 ILCS 130/4a) (from Ch. 120, par. 453.4a)
| 7 | | Sec. 4a.
If a distributor or cigarette machine operator | 8 | | shall be convicted of the violation of any of the
provisions of | 9 | | this Act, or if his or her license shall be revoked and no | 10 | | review
is had of the order or revocation, or if on review | 11 | | thereof the decision is
adverse to the distributor or cigarette | 12 | | machine operator , or if a distributor or cigarette machine | 13 | | operator fails to pay an assessment as to
which no judicial | 14 | | review is sought and which has become final, or pursuant
to | 15 | | which, upon review thereof, the circuit court has entered a | 16 | | judgment
that is in favor of the Department and that has become
| 17 | | final, the bond filed pursuant to this Act shall thereupon be | 18 | | forfeited,
and the Department may institute a suit upon such | 19 | | bond in its own name for
the entire amount of such bond and | 20 | | costs. Such
suit upon the bond shall be
in addition to any | 21 | | other remedy provided for herein.
| 22 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 23 | | (35 ILCS 130/4d) | 24 | | Sec. 4d. Sales of cigarettes to and by retailers. In-state |
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| 1 | | makers, manufacturers, and fabricators licensed as | 2 | | distributors under Section 4 of this Act , and out-of-state | 3 | | makers, manufacturers, and fabricators holding permits under | 4 | | Section 4b of this Act , and cigarette machine operators | 5 | | licensed under Section 4g of this Act may not sell original | 6 | | packages of cigarettes to retailers. A retailer may sell only | 7 | | original packages of cigarettes obtained from manufacturer | 8 | | representatives, licensed secondary distributors, or licensed | 9 | | distributors other than in-state makers, manufacturers, or | 10 | | fabricators licensed as distributors under Section 4 of this | 11 | | Act and out-of-state makers, manufacturers, or fabricators | 12 | | holding permits under Section 4b of this Act. A retailer | 13 | | holding a cigarette operator's license under Section 4g is | 14 | | authorized to sell cigarettes made, manufactured, or | 15 | | fabricated from a cigarette machine located on the retailer's | 16 | | premises only to purchasers for use and consumption and not for | 17 | | resale.
| 18 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10; | 19 | | 97-587, eff. 8-26-11.) | 20 | | (35 ILCS 130/4g new) | 21 | | Sec. 4g. Cigarette machine operator license. | 22 | | (a) No person may engage in the business of operating a | 23 | | cigarette machine in this State without first having obtained a | 24 | | license from the Department. Applications for licenses shall be | 25 | | made to the Department on a form furnished and prescribed by |
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| 1 | | the Department. Each applicant for a license under this Section | 2 | | shall furnish the following information to the Department on a | 3 | | form signed and verified by the applicant under penalty of | 4 | | perjury: | 5 | | (1) the name and address of the applicant; | 6 | | (2) the address of the location at which the applicant | 7 | | proposes to engage in the business of operating a cigarette | 8 | | machine in this State; and | 9 | | (3) any other additional information as the Department | 10 | | may reasonably require. | 11 | | The annual license fee payable to the Department for each | 12 | | cigarette machine operator's license shall be $250. Each | 13 | | applicant for a license shall pay such fee to the Department at | 14 | | the time of submitting an application for license to the | 15 | | Department. | 16 | | Every applicant who is required to procure a cigarette | 17 | | machine operator's license shall file with his application a | 18 | | joint and several bond. Such bond shall be executed to the | 19 | | Department of Revenue, with good and sufficient surety or | 20 | | sureties residing or licensed to do business within the State | 21 | | of Illinois, in the amount of $2,500, conditioned upon the true | 22 | | and faithful compliance by the licensee with all of the | 23 | | provisions of this Act. Such bond, or a reissue thereof, or a | 24 | | substitute therefore, shall be kept in effect during the entire | 25 | | period covered by the license. A separate application for a | 26 | | license shall be made, a separate annual license fee paid, and |
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| 1 | | a separate bond filed, for each place of business at which a | 2 | | person who is required to procure a cigarette machine operator | 3 | | license under this Section proposes to engage in business as a | 4 | | distributor in Illinois under this Act. | 5 | | (b) The following are ineligible to receive a cigarette | 6 | | machine operator's license under this Act: | 7 | | (1) a person who is not of good character and | 8 | | reputation in the community in which he resides; | 9 | | (2) a person who has been convicted of a felony under | 10 | | any federal or State law, if the Department, after an | 11 | | investigation and a hearing, if an investigation and | 12 | | hearing are requested by the applicant, determines that the | 13 | | person has not been sufficiently rehabilitated to warrant | 14 | | the public trust; | 15 | | (3) a corporation, if any officer, manager, or director | 16 | | thereof, or any stockholder or stockholders owning in the | 17 | | aggregate more than 5% of the stock of that corporation, | 18 | | would not be eligible to receive a license under this Act | 19 | | for any reason; | 20 | | (4) a person who manufactures cigarettes, whether in | 21 | | this State or out of this State; | 22 | | (5) an entity, or any person who owns more than 15% of | 23 | | the ownership interests in an entity or a related party | 24 | | who: | 25 | | (A) owes, at the time of application, any | 26 | | delinquent cigarette taxes that have been determined |
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| 1 | | by law to be due and unpaid, unless the license | 2 | | applicant has entered into an agreement approved by the | 3 | | Department to pay the amount due; | 4 | | (B) had a license under this Act revoked within the | 5 | | past 2 years by the Department for misconduct relating | 6 | | to stolen or contraband cigarettes or has been | 7 | | convicted of a State or federal crime, punishable by | 8 | | imprisonment of one year or more, relating to stolen or | 9 | | contraband cigarettes; | 10 | | (C) has been found by the Department, after notice | 11 | | and a hearing, to have imported or caused to be | 12 | | imported into the United States for sale or | 13 | | distribution any cigarette in violation of 19 U.S.C. | 14 | | 1681a;
| 15 | | (D) has been found by the Department, after notice | 16 | | and a hearing, to have imported or caused to be | 17 | | imported into the United States for sale or | 18 | | distribution or manufactured for sale or distribution | 19 | | in the United States any cigarette that does not fully | 20 | | comply with the Federal Cigarette Labeling and | 21 | | Advertising Act (15 U.S.C. 1331, et seq.) or any | 22 | | successor federal Act; or | 23 | | (E) has been found by the Department, after notice | 24 | | and a hearing, to have made a material false statement | 25 | | in the application or has failed to produce records | 26 | | required to be maintained by this Act. |
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| 1 | | (c) The Department, upon receipt of an application, license | 2 | | fee, and bond in proper form, from a person who is eligible to | 3 | | receive a cigarette machine operator license under this Act, | 4 | | shall issue to that applicant a license in a form as prescribed | 5 | | by the Department. That license shall permit the applicant to | 6 | | which it is issued to engage in business as a cigarette machine | 7 | | operator at the place shown in his application. All licenses | 8 | | issued by the Department under this Section shall be valid for | 9 | | a period of time not to exceed one year after issuance unless | 10 | | sooner revoked, canceled, or suspended as provided in this Act. | 11 | | No license issued under this Section is transferable or | 12 | | assignable. Such license shall be conspicuously displayed in | 13 | | the place of business conducted by the licensee in Illinois | 14 | | under the license. No cigarette machine operator acquires any | 15 | | vested interest or compensable property right in a license | 16 | | issued under this Act. | 17 | | (d) A cigarette machine operator shall notify the | 18 | | Department of any change in the information contained on the | 19 | | application form, including any change in ownership, and shall | 20 | | do so within 30 days after any the change. | 21 | | (e) Any person aggrieved by any decision of the Department | 22 | | under this Section may, within 20 days after notice of the | 23 | | decision, protest and request a hearing. Upon receiving a | 24 | | request for a hearing, the Department shall give notice to the | 25 | | person requesting the hearing of the time and place fixed for | 26 | | the hearing and shall hold a hearing in conformity with the |
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| 1 | | provisions of this Act. The Department shall then issue its | 2 | | final administrative decision on the matter to that person. In | 3 | | the absence of a protest and request for a hearing within 20 | 4 | | days, the Department's decision shall become final without any | 5 | | further determination being made or notice given. | 6 | | (35 ILCS 130/4h new) | 7 | | Sec. 4h. Cigarette machine operators; sale of cigarettes | 8 | | produced. | 9 | | (a) Any person obtaining a cigarette machine operator's | 10 | | license under Section 4g of this Act shall comply with all laws | 11 | | and regulations relating to the distribution, making, | 12 | | manufacturing, and fabricating of cigarettes. The cigarette | 13 | | machine operator is also responsible for complying with all | 14 | | laws and regulations contained in this Act regarding packaging | 15 | | and labeling of original packages of cigarettes. | 16 | | (b) Immediately after cigarettes are made, manufactured, | 17 | | or fabricated by a cigarette machine operator, they shall be | 18 | | placed in one or more packages, with the correct number of tax | 19 | | stamps permanently affixed to the package or packages and the | 20 | | package or packages sealed with a transparent wrapper or sealed | 21 | | with unique tape approved by the Department. Tax stamps may be | 22 | | permanently affixed to the package or packages after the | 23 | | package or packages are sealed with a transparent wrapper | 24 | | approved by the Department. Cigarettes in the possession of a | 25 | | cigarette machine operator that do not meet the requirements of |
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| 1 | | this subsection (b) are deemed contraband. | 2 | | (c) A person possessing a cigarette machine operator's | 3 | | license may not purchase unstamped cigarettes from an in-State | 4 | | or out-of-State manufacturer or distributor of cigarettes, or | 5 | | import cigarettes from outside of the United States. | 6 | | (d) Cigarettes made, manufactured, or fabricated by a | 7 | | cigarette machine may not be sold or distributed to, or | 8 | | possessed by, manufacturers, distributors, secondary | 9 | | distributors, or retailers other than the cigarette machine | 10 | | operator. | 11 | | (e) A cigarette machine possessed by a person operating a | 12 | | cigarette machine shall have a secure meter that counts the | 13 | | number of cigarettes made, manufactured, or fabricated by the | 14 | | cigarette machine and that cannot be accessed, except for the | 15 | | sole purpose of taking meter readings, altered or reset by the | 16 | | machine operator.
| 17 | | (35 ILCS 130/6) (from Ch. 120, par. 453.6)
| 18 | | Sec. 6. Revocation, cancellation, or suspension of | 19 | | license. The Department may, after notice and hearing as | 20 | | provided for by this
Act, revoke, cancel or suspend the license | 21 | | of any distributor , or secondary distributor , or cigarette | 22 | | machine operator for the
violation of any provision of this | 23 | | Act, or for noncompliance with any
provision herein contained, | 24 | | or for any noncompliance with any lawful rule
or regulation | 25 | | promulgated by the Department under Section 8 of this Act, or
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| 1 | | because the licensee is determined to be ineligible for a | 2 | | distributor's
license for any one or more of the reasons | 3 | | provided for in Section 4 of
this Act, or because the licensee | 4 | | is determined to be ineligible for a secondary distributor's | 5 | | license for any one or more of the reasons provided for in | 6 | | Section 4c of this Act , or because the licensee is determined | 7 | | to be ineligible for a cigarette machine operator license for | 8 | | any one or more of the reasons provided for in Section 4g of | 9 | | this Act . However, no such license shall be revoked, cancelled | 10 | | or
suspended, except after a hearing by the Department with | 11 | | notice to the
distributor , or secondary distributor, or | 12 | | cigarette machine operator, as aforesaid, and affording such | 13 | | distributor , or secondary distributor , or cigarette machine | 14 | | operator a reasonable
opportunity to appear and defend, and any | 15 | | distributor , or secondary distributor , or cigarette machine | 16 | | operator aggrieved by any
decision of the Department with | 17 | | respect thereto may have the determination
of the Department | 18 | | judicially reviewed, as herein provided.
| 19 | | The Department may revoke, cancel, or suspend the license | 20 | | of any
distributor or cigarette machine operator for a | 21 | | violation of the Tobacco Product Manufacturers' Escrow
| 22 | | Enforcement Act as provided in Section 30 of that Act. The | 23 | | Department may revoke, cancel, or suspend the license of any | 24 | | secondary distributor for a violation of subsection (e) of | 25 | | Section 15 of the Tobacco Product Manufacturers' Escrow | 26 | | Enforcement Act.
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| 1 | | Any distributor , or secondary distributor , or cigarette | 2 | | machine operator aggrieved by any decision of the Department | 3 | | under this
Section
may, within 20 days after notice of the | 4 | | decision, protest and request a
hearing. Upon receiving a | 5 | | request for a hearing, the Department shall give
notice in | 6 | | writing to the distributor , or secondary distributor , or | 7 | | cigarette machine operator requesting the hearing that | 8 | | contains a
statement of the charges preferred against the | 9 | | distributor , or secondary distributor , or cigarette machine | 10 | | operator and that states the
time and place fixed for the | 11 | | hearing. The Department shall hold the hearing in
conformity | 12 | | with the provisions of this Act and then issue its final
| 13 | | administrative decision in the matter to the distributor , or | 14 | | secondary distributor , or cigarette machine operator . In the | 15 | | absence of a
protest and request for a hearing within 20 days, | 16 | | the Department's decision
shall become final without any | 17 | | further determination being made or notice
given.
| 18 | | No license so revoked, as aforesaid, shall be reissued to | 19 | | any such
distributor , or secondary distributor , or cigarette | 20 | | machine operator within a period of 6 months after the date of | 21 | | the final
determination of such revocation. No such license | 22 | | shall be reissued at all
so long as the person who would | 23 | | receive the license is ineligible to
receive a distributor's | 24 | | license under this Act for any one or more of the
reasons | 25 | | provided for in Section 4 of this Act or is ineligible to | 26 | | receive a secondary distributor's license under this Act for |
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| 1 | | any one or more of the reasons provided for in Section 4c of | 2 | | this Act , or because the licensee is determined to be | 3 | | ineligible for a cigarette machine operator license for any one | 4 | | or more of the reasons provided for in Section 4g of this Act .
| 5 | | The Department upon complaint filed in the circuit
court | 6 | | may by injunction
restrain any person who fails, or refuses, to | 7 | | comply with any of the
provisions of this Act from acting as a | 8 | | distributor or secondary distributor of cigarettes or a | 9 | | cigarette machine operator in this
State.
| 10 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 11 | | (35 ILCS 130/7) (from Ch. 120, par. 453.7)
| 12 | | Sec. 7.
The Department or any officer or employee of the | 13 | | Department
designated, in writing, by the Director thereof, | 14 | | shall at its or his or
her own instance, or on the written | 15 | | request of any distributor, secondary distributor, cigarette | 16 | | machine operator, manufacturer with authority to maintain | 17 | | manufacturer representatives, or other interested
party to the | 18 | | proceeding, issue subpoenas requiring the attendance of and
the | 19 | | giving of testimony by witnesses, and subpoenas duces tecum | 20 | | requiring
the production of books, papers, records or | 21 | | memoranda. All subpoenas and
subpoenas duces tecum issued under | 22 | | the terms of this Act may be served by
any person of full age. | 23 | | The fees of witnesses for attendance and travel
shall be the | 24 | | same as the fees of witnesses before the circuit court of this
| 25 | | State; such fees to be paid when the witness is excused from |
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| 1 | | further
attendance. When the witness is subpoenaed at the | 2 | | instance of the
Department or any officer or employee thereof, | 3 | | such fees shall be paid in
the same manner as other expenses of | 4 | | the Department, and when the witness
is subpoenaed at the | 5 | | instance of any other party to any such proceeding,
the cost of | 6 | | service of the subpoena or subpoena duces tecum and the fee of
| 7 | | the witness shall be borne by the party at whose instance the | 8 | | witness is
summoned. In such case the Department, in its | 9 | | discretion, may require a
deposit to cover the cost of such | 10 | | service and witness fees. A subpoena or
subpoena duces tecum so | 11 | | issued shall be served in the same manner as a subpoena
or | 12 | | subpoena duces tecum issued out of a court.
| 13 | | Any circuit court of this State, upon the
application of | 14 | | the Department or any officer or employee thereof, or upon
the | 15 | | application of any other party to the proceeding, may, in its
| 16 | | discretion, compel the attendance of witnesses, the production | 17 | | of books,
papers, records or memoranda and the giving of | 18 | | testimony before the
Department or any officer or employee | 19 | | thereof conducting an investigation
or holding a hearing | 20 | | authorized by this Act, by an attachment for contempt,
or | 21 | | otherwise, in the same manner as production of evidence may be | 22 | | compelled
before the court.
| 23 | | The Department or any officer or employee thereof, or any | 24 | | other party in
an investigation or hearing before the | 25 | | Department, may cause the
depositions of witnesses within the | 26 | | State to be taken in the manner
prescribed by law for like |
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| 1 | | depositions, or depositions for discovery in
civil actions in | 2 | | courts of this State, and to that end compel the
attendance of | 3 | | witnesses and the production of books, papers, records or
| 4 | | memoranda, in the same manner hereinbefore provided.
| 5 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 6 | | (35 ILCS 130/8) (from Ch. 120, par. 453.8)
| 7 | | Sec. 8.
The Department may make, promulgate and enforce | 8 | | such
reasonable rules and regulations relating to the | 9 | | administration and
enforcement of this Act as may be deemed | 10 | | expedient.
| 11 | | Whenever notice is required by this Act, such notice may be | 12 | | given by
United States certified or registered mail, addressed | 13 | | to the person concerned at his
last known address, and proof of | 14 | | such mailing shall be sufficient for the
purposes of this Act. | 15 | | Notice of any hearing provided for by this Act shall
be so | 16 | | given not less than 7 days prior to the day fixed for the | 17 | | hearing.
| 18 | | Hearings provided for in this Act shall be held:
| 19 | | (1) In Cook County, if the taxpayer's or licensee's | 20 | | principal place of business is in
that county;
| 21 | | (2) At the Department's office nearest the taxpayer's | 22 | | or licensee's principal place of
business, if the | 23 | | taxpayer's or licensee's principal place of business is in | 24 | | Illinois but
outside Cook County;
| 25 | | (3) In Sangamon County, if the taxpayer's or licensee's |
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| 1 | | principal place of business is
outside Illinois.
| 2 | | The Circuit Court of the County wherein the hearing is held | 3 | | has
power to review all final administrative decisions of the | 4 | | Department in
administering this Act. The provisions of the | 5 | | Administrative Review Law,
and all amendments and
| 6 | | modifications thereof, and the rules adopted pursuant thereto, | 7 | | shall
apply to and govern all proceedings for the judicial | 8 | | review of final
administrative decisions of the Department | 9 | | under this Act. The term
"administrative decision" is defined | 10 | | as in Section 3-101 of the Code of Civil Procedure.
| 11 | | Service upon the Director of Revenue or Assistant Director | 12 | | of Revenue
of summons issued in any action to review a final
| 13 | | administrative decision shall be service upon the Department. | 14 | | The
Department shall certify the record of its proceedings if | 15 | | the distributor, secondary distributor, cigarette machine | 16 | | operator, or manufacturer with authority to maintain | 17 | | manufacturer representatives pays to it the sum of 75˘ per page | 18 | | of testimony taken before the Department
and 25˘ per page of | 19 | | all other matters contained in such record, except that
these | 20 | | charges may be waived where the Department is satisfied that | 21 | | the aggrieved
party is a poor person who cannot afford to pay | 22 | | such charges.
Before the delivery of such record to the person | 23 | | applying for it, payment
of these charges must be made, and if
| 24 | | the record is not paid for within 30 days after notice that | 25 | | such record
is available, the
complaint may be dismissed by the | 26 | | court upon motion of the Department.
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| 1 | | No stay order shall be entered by the Circuit Court unless | 2 | | the
distributor, secondary distributor, cigarette machine | 3 | | operator, or manufacturer with authority to maintain | 4 | | manufacturer representatives files with the court a bond in an | 5 | | amount fixed and approved by
the court, to indemnify the State | 6 | | against all loss and injury which may be
sustained by it on | 7 | | account of the review proceedings and to secure all
costs which | 8 | | may be occasioned by such proceedings.
| 9 | | Whenever any proceeding provided by this Act is begun | 10 | | before the
Department, either by the Department or by a person | 11 | | subject to this Act,
and such person thereafter dies or becomes | 12 | | a person under legal disability
before such
proceeding is | 13 | | concluded, the legal representative of the deceased person
or | 14 | | of the person under legal disability shall notify
the | 15 | | Department of such death or legal disability.
Such legal | 16 | | representative, as such, shall then be substituted
by the | 17 | | Department for such person. If the legal representative fails | 18 | | to
notify the Department of his or her appointment as such | 19 | | legal representative, the
Department may, upon its own motion, | 20 | | substitute such legal representative
in the proceeding pending | 21 | | before the Department for the person who died or
became a | 22 | | person under legal disability.
| 23 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 24 | | (35 ILCS 130/9) (from Ch. 120, par. 453.9)
| 25 | | Sec. 9. Returns; remittance. Every distributor who is |
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| 1 | | required to
procure a license under this
Act, but who is not a | 2 | | manufacturer of cigarettes in original packages
which are | 3 | | contained in a sealed transparent wrapper, shall, on or before
| 4 | | the 15th day of each calendar month, file a return with the | 5 | | Department,
showing the quantity of cigarettes manufactured | 6 | | during the preceding
calendar month, the quantity of cigarettes | 7 | | brought into this State or
caused to be brought into this State | 8 | | from outside this State during the
preceding calendar month | 9 | | without authorized evidence on the original
packages of such | 10 | | cigarettes underneath the sealed transparent wrapper
thereof | 11 | | that the tax liability imposed by this Act has been assumed by | 12 | | the
out-of-State seller of such cigarettes, the quantity of | 13 | | cigarettes
purchased tax-paid during the preceding calendar | 14 | | month either within or
outside this State, the quantity of | 15 | | cigarettes sold by manufacturer representatives on behalf of | 16 | | the distributor, the quantity of cigarettes sold to | 17 | | manufacturer representatives, and the quantity of cigarettes | 18 | | sold or otherwise
disposed of during the preceding calendar | 19 | | month. Such return shall be filed
upon forms furnished and | 20 | | prescribed by the Department and shall contain
such other | 21 | | information as the Department may reasonably require.
The | 22 | | Department may promulgate rules to require that the | 23 | | distributor's return
be accompanied by appropriate | 24 | | computer-generated magnetic media supporting
schedule data in | 25 | | the format required by the Department, unless, as provided by
| 26 | | rule, the Department grants an exception upon petition of a |
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| 1 | | distributor.
| 2 | | Illinois manufacturers of cigarettes in original packages | 3 | | which are
contained inside a sealed transparent wrapper shall | 4 | | file a return by the
5th day of each month covering the | 5 | | preceding calendar month. Each such
return shall be accompanied | 6 | | by the appropriate remittance for tax as
provided in Section 3 | 7 | | of this Act. Each such return
shall show the quantity of such | 8 | | cigarettes manufactured during the period
covered by the | 9 | | return, the quantity of cigarettes sold or otherwise
disposed | 10 | | of during the period covered by the return and such other
| 11 | | information as the Department may lawfully require. Such | 12 | | returns shall be
filed on forms prescribed and furnished by the | 13 | | Department. Each such return
shall be accompanied by a copy of | 14 | | each invoice rendered by such
manufacturer to any purchaser to | 15 | | whom such manufacturer delivered
cigarettes (or caused | 16 | | cigarettes to be delivered) during the period covered
by the | 17 | | return.
The Department may promulgate rules to require that the | 18 | | manufacturer's return
be accompanied by appropriate | 19 | | computer-generated magnetic media supporting
schedule data in | 20 | | the format required by the Department, unless, as provided by
| 21 | | rule, the Department grants an exception upon petition of a | 22 | | manufacturer.
| 23 | | Cigarette machine operators shall file a return by the 15th | 24 | | day of each month covering the preceding calendar month. Each | 25 | | such return shall show: (1) the quantity of cigarettes made, | 26 | | manufactured, or fabricated during the period covered by the |
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| 1 | | return, (2) the beginning and ending meter reading for each | 2 | | cigarette machine for the period covered by the return, (3) the | 3 | | quantity of cigarettes sold or otherwise disposed of during the | 4 | | period covered by the return, (4) the type and quantity of | 5 | | tobacco products used to make, manufacture, or fabricate | 6 | | cigarettes by use of the operator's cigarette machine, (5) the | 7 | | type and quantity of cigarette papers and filters purchased for | 8 | | use in the operator's cigarette machine, and (6) such other | 9 | | information as the Department may lawfully require. These | 10 | | returns shall be filed on forms prescribed and furnished by the | 11 | | Department. The Department may require that each such return | 12 | | shall be accompanied by a copy of each invoice rendered by the | 13 | | cigarette machine operator to any purchaser to whom the | 14 | | cigarette machine operator sold cigarettes during the period | 15 | | covered by the return. The Department may adopt rules in | 16 | | accordance with the provisions of the Illinois Administrative | 17 | | Procedure Act to require that the cigarette machine operator's | 18 | | return be accompanied by appropriate computer generated | 19 | | magnetic media supporting schedule data in the format required | 20 | | by the Department, unless, as provided by rule, the Department | 21 | | grants an exception upon petition of a cigarette machine | 22 | | operator. | 23 | | (Source: P.A. 97-587, eff. 8-26-11.)
| 24 | | (35 ILCS 130/9a) (from Ch. 120, par. 453.9a)
| 25 | | Sec. 9a. Examination and correction of returns.
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| 1 | | (1) As soon as practicable after any return is filed, the
| 2 | | Department shall examine such return and shall correct such | 3 | | return
according to its best judgment and information, which | 4 | | return so corrected
by the Department shall be prima facie | 5 | | correct and shall be prima facie
evidence of the correctness of | 6 | | the amount of tax due, as shown therein.
Instead of requiring | 7 | | the distributor or cigarette machine operator to file an | 8 | | amended return, the
Department may simply notify the | 9 | | distributor or cigarette machine operator of the correction or
| 10 | | corrections it has made. Proof of such correction by the | 11 | | Department may be
made at any hearing before the Department or | 12 | | in any legal proceeding by a
reproduced copy of the | 13 | | Department's record relating thereto in the name of
the | 14 | | Department under the certificate of the Director of Revenue. | 15 | | Such
reproduced copy shall, without further proof, be admitted | 16 | | into evidence
before the Department or in any legal proceeding | 17 | | and shall be prima facie
proof of the correctness of the amount | 18 | | of tax due, as shown therein. If the
Department finds that any | 19 | | amount of tax is due from the distributor or cigarette machine | 20 | | operator , the
Department shall issue the distributor a notice | 21 | | of tax liability for the
amount of tax claimed by the | 22 | | Department to be due, together with a penalty
in an amount | 23 | | determined in accordance with Sections 3-3, 3-5 and 3-6 of the
| 24 | | Uniform Penalty and Interest Act. If, in administering the | 25 | | provisions of
this Act, comparison of a return or returns of a | 26 | | distributor or cigarette machine operator with the
books, |
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| 1 | | records and inventories of such distributor or cigarette | 2 | | machine operator discloses a deficiency
which cannot be | 3 | | allocated by the Department to a particular month or
months, | 4 | | the Department shall issue the distributor or cigarette machine | 5 | | operator a notice of tax
liability for the amount of tax | 6 | | claimed by the Department to be due for a
given period, but | 7 | | without any obligation upon the Department to allocate
such | 8 | | deficiency to any particular month or months, together with a | 9 | | penalty
in an amount determined in accordance with Sections | 10 | | 3-3, 3-5 and 3-6 of the
Uniform Penalty and Interest Act, under | 11 | | which circumstances the aforesaid
notice of tax liability shall | 12 | | be prima facie correct and shall be prima
facie evidence of the | 13 | | correctness of the amount of tax due, as shown
therein; and | 14 | | proof of such correctness may be made in accordance with, and
| 15 | | the admissibility of a reproduced copy of such notice of tax | 16 | | liability
shall be governed by, all the provisions of this Act | 17 | | applicable to
corrected returns. If any distributor or | 18 | | cigarette machine operator filing any return dies or becomes a
| 19 | | person under legal disability at any time before the Department | 20 | | issues its
notice of tax liability, such notice shall be issued | 21 | | to the administrator,
executor or other legal representative, | 22 | | as such, of such distributor or cigarette machine operator .
| 23 | | (2) If, within 60 days after such notice of tax liability, | 24 | | the
distributor or cigarette machine operator or his or her | 25 | | legal representative files a protest to such
notice of tax | 26 | | liability and requests a hearing thereon, the Department shall
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| 1 | | give notice to such distributor , or cigarette machine operator, | 2 | | or legal representative of the time and place
fixed for such | 3 | | hearing, and shall hold a hearing in conformity with the
| 4 | | provisions of this Act, and pursuant thereto shall issue a | 5 | | final assessment
to such distributor or cigarette machine | 6 | | operator, or his or her legal representative , for the amount | 7 | | found to be due
as a result of such hearing. If a protest to the | 8 | | notice of tax liability
and a request for a hearing thereon is | 9 | | not filed within 60 days
after such
notice of tax liability, | 10 | | such notice of tax liability shall become final
without the | 11 | | necessity of a final assessment being issued and shall be
| 12 | | deemed to be a final assessment.
| 13 | | (3) In case of failure to pay the tax, or any portion | 14 | | thereof, or any
penalty provided for in this Act, when due, the | 15 | | Department may bring suit
to recover the amount of such tax, or | 16 | | portion thereof, or penalty; or, if
the taxpayer dies or | 17 | | becomes incompetent, by filing claim therefor against
his | 18 | | estate; provided that no such action with respect to any tax, | 19 | | or portion
thereof, or penalty, shall be instituted more than 2 | 20 | | years after the cause
of action accrues, except with the | 21 | | consent of the person from whom such tax
or penalty is due.
| 22 | | After the expiration of the period within which the person | 23 | | assessed may
file an action for judicial review under the | 24 | | Administrative Review Law
without such an action being filed, a | 25 | | certified copy of the final assessment
or revised final | 26 | | assessment of the Department may be filed with the Circuit
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| 1 | | Court of the county in which the taxpayer has his or her | 2 | | principal place of
business, or of Sangamon County in those | 3 | | cases in which the taxpayer does
not have his principal place | 4 | | of business in this State. The certified copy
of the final | 5 | | assessment or revised final assessment shall be accompanied by
| 6 | | a certification which recites facts that are sufficient to show | 7 | | that the
Department complied with the jurisdictional | 8 | | requirements of the Law in
arriving at its final assessment or | 9 | | its revised final assessment and that
the taxpayer had his or | 10 | | her opportunity for an administrative hearing and for
judicial | 11 | | review, whether he availed himself or herself of either or both | 12 | | of
these opportunities or not. If the court is satisfied that | 13 | | the Department
complied with the jurisdictional requirements | 14 | | of the Law in arriving at its
final assessment or its revised | 15 | | final assessment and that the taxpayer had
his or her | 16 | | opportunity for an administrative hearing and for judicial | 17 | | review,
whether he or she availed himself or herself of either | 18 | | or both of
these opportunities or not, the court shall enter | 19 | | judgment in favor of the
Department and against the taxpayer | 20 | | for the amount shown to be due by the
final assessment or the | 21 | | revised final assessment, and such judgment shall
be filed of | 22 | | record in the court. Such judgment shall bear the rate of
| 23 | | interest set in the Uniform Penalty and Interest Act, but | 24 | | otherwise shall
have the same effect as other judgments. The | 25 | | judgment may be enforced, and
all laws applicable to sales for | 26 | | the enforcement of a judgment shall be
applicable to sales made |
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| 1 | | under such judgments. The Department shall file
the certified | 2 | | copy of its assessment, as herein provided, with the Circuit
| 3 | | Court within 2 years after such assessment becomes final except | 4 | | when the
taxpayer consents in writing to an extension of such | 5 | | filing period.
| 6 | | If, when the cause of action for a proceeding in court | 7 | | accrues against a
person, he or she is out of the State, the | 8 | | action may be commenced within the
times herein limited, after | 9 | | his or her coming into or return to the State;
and if, after | 10 | | the cause of action accrues, he or she departs from and
remains | 11 | | out of the State, the time of his or her absence is no part of | 12 | | the
time limited for the commencement of the action; but the | 13 | | foregoing
provisions concerning absence from the State shall | 14 | | not apply to any case in
which, at the time the cause of action | 15 | | accrues, the party against whom the
cause of action accrues is | 16 | | not a resident of this State. The time within
which a court | 17 | | action is to be commenced by the Department hereunder shall
not | 18 | | run while the taxpayer is a debtor in any proceeding under the | 19 | | Federal
Bankruptcy Act nor thereafter until 90 days after the | 20 | | Department is
notified by such debtor of being discharged in | 21 | | bankruptcy.
| 22 | | No claim shall be filed against the estate of any deceased | 23 | | person or
a person under legal disability for any tax or | 24 | | penalty or part of either
except in the manner prescribed and | 25 | | within the time limited by the Probate
Act of 1975, as amended.
| 26 | | The remedies provided for herein shall not be exclusive, |
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| 1 | | but all
remedies available to creditors for the collection of | 2 | | debts shall be
available for the collection of any tax or | 3 | | penalty due hereunder.
| 4 | | The collection of tax or penalty by any means provided for | 5 | | herein shall
not be a bar to any prosecution under this Act.
| 6 | | The certificate of the Director of the Department to the | 7 | | effect that a
tax or amount required to be paid by this Act has | 8 | | not been paid, that a
return has not been filed, or that | 9 | | information has not been supplied
pursuant to the provisions of | 10 | | this Act, shall be prima facie evidence
thereof.
| 11 | | All of the provisions of Sections 5a, 5b, 5c, 5d, 5e, 5f, | 12 | | 5g, 5i and
5j of the Retailers' Occupation Tax Act, which are | 13 | | not inconsistent
with this Act, and Section 3-7 of the Uniform | 14 | | Penalty and Interest Act
shall apply, as far as practicable, to | 15 | | the subject matter of
this Act to the same extent as if such | 16 | | provisions were included herein.
References in such | 17 | | incorporated Sections of the "Retailers' Occupation Tax
Act" to | 18 | | retailers, to sellers or to persons engaged in the business of
| 19 | | selling tangible personal property shall mean distributors and | 20 | | cigarette machine operators when used in
this Act.
| 21 | | (Source: P.A. 92-322, eff. 1-1-02.)
| 22 | | (35 ILCS 130/9d) (from Ch. 120, par. 453.9d)
| 23 | | Sec. 9d.
If it appears, after claim therefor filed with the | 24 | | Department,
that an amount of tax or penalty has been paid | 25 | | which was not due under this
Act, whether as the result of a |
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| 1 | | mistake of fact or an error of law, except as
hereinafter | 2 | | provided, then the Department shall issue a credit memorandum
| 3 | | or refund to the person who made the erroneous payment or, if | 4 | | that person
has died or become a person under legal disability, | 5 | | to his or her legal
representative, as such.
| 6 | | If it is determined that the Department should issue a | 7 | | credit or refund
under this Act, the Department may first apply | 8 | | the amount thereof against
any amount of tax or penalty due | 9 | | under this Act or under the Cigarette Use
Tax Act from the | 10 | | person entitled to such credit or refund. For this
purpose, if | 11 | | proceedings are pending to determine whether or not any tax or
| 12 | | penalty is due under this Act or under the Cigarette Use Tax | 13 | | Act from such
person, the Department may withhold issuance of | 14 | | the credit or refund
pending the final disposition of such | 15 | | proceedings and may apply such credit
or refund against any | 16 | | amount found to be due to the Department under this
Act or | 17 | | under the Cigarette Use Tax Act as a result of such | 18 | | proceedings. The
balance, if any, of the credit or refund shall | 19 | | be issued to the person
entitled thereto.
| 20 | | If no tax or penalty is due and no proceeding is pending to | 21 | | determine
whether such taxpayer is indebted to the Department | 22 | | for tax or penalty, the
credit memorandum or refund shall be | 23 | | issued to the claimant; or (in the
case of a credit memorandum) | 24 | | the credit memorandum may be assigned and set
over by the | 25 | | lawful holder thereof, subject to reasonable rules of the
| 26 | | Department, to any other person who is subject to this Act or |
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| 1 | | the Cigarette
Use Tax Act, and the amount thereof shall be | 2 | | applied by the Department
against any tax or penalty due or to | 3 | | become due under this Act or under the
Cigarette Use Tax Act | 4 | | from such assignee.
| 5 | | As to any claim filed hereunder with the Department on and | 6 | | after each
January 1 and July 1, no amount of tax or penalty | 7 | | erroneously paid (either
in total or partial liquidation of a | 8 | | tax or penalty under this Act) more
than 3 years prior to such | 9 | | January 1 and July 1, respectively, shall be
credited or | 10 | | refunded, except that if both the Department and the taxpayer
| 11 | | have agreed to an extension of time to issue a notice of tax | 12 | | liability under
this Act, the claim may be filed at any time | 13 | | prior to the expiration of the
period agreed upon.
| 14 | | If the Department approves a claim for stamps affixed to a | 15 | | product returned
to a manufacturer or cigarette machine | 16 | | operator or for replacement of stamps, the credit memorandum | 17 | | shall not
exceed the face value of stamps originally affixed, | 18 | | and replacement stamps
shall be issued only in an amount equal | 19 | | to the value of the stamps previously
affixed. Higher | 20 | | denomination stamps shall not be issued as replacements for
| 21 | | lower value stamps. Distributors and cigarette machine | 22 | | operators must prove the face value of the stamps which
have | 23 | | been destroyed or returned to manufacturers when filing claims.
| 24 | | Any credit or refund that is allowed under this Act shall | 25 | | bear interest
at the rate and in the manner set forth in the | 26 | | Uniform Penalty and Interest
Act.
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| 1 | | In case the Department determines that the claimant is | 2 | | entitled to a
refund, such refund shall be made only from such | 3 | | appropriation as may be
available for that purpose. If it | 4 | | appears unlikely that the amount
appropriated would permit | 5 | | everyone having a claim allowed during the period
covered by | 6 | | such appropriation to elect to receive a cash refund, the
| 7 | | Department, by rule or regulation, shall provide for the | 8 | | payment of refunds
in hardship cases and shall define what | 9 | | types of cases qualify as hardship
cases.
| 10 | | If the Department approves a claim for the physical | 11 | | replacement of
cigarette tax stamps, the Department (subject to | 12 | | the same limitations as
those provided for hereinbefore in this | 13 | | Section) may issue an assignable
credit memorandum or refund to | 14 | | the claimant or to the claimant's legal
representative.
| 15 | | The provisions of Sections 6a, 6b and 6c of the Retailers' | 16 | | Occupation
Tax Act which are not inconsistent with this Act, | 17 | | shall apply, as far as
practicable, to the subject matter of | 18 | | this Act to the same extent as if
such provisions were included | 19 | | herein.
| 20 | | (Source: P.A. 90-491, eff. 1-1-98.)
| 21 | | (35 ILCS 130/10) (from Ch. 120, par. 453.10)
| 22 | | Sec. 10.
The Department, or any officer or employee | 23 | | designated in writing
by the Director thereof, for the purpose | 24 | | of administering and enforcing the
provisions of this Act, may | 25 | | hold investigations and hearings concerning
any matters |
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| 1 | | covered by this Act, and may examine books, papers, records or
| 2 | | memoranda bearing upon the sale or other disposition of | 3 | | cigarettes by a
distributor, secondary distributor, cigarette | 4 | | machine operator, manufacturer with authority to maintain | 5 | | manufacturer representatives under Section 4f of this Act, or | 6 | | manufacturer representative, and may issue subpoenas requiring | 7 | | the attendance of a
distributor, secondary distributor, | 8 | | cigarette machine operator, manufacturer with authority to | 9 | | maintain manufacturer representatives under Section 4f of this | 10 | | Act, or manufacturer representative, or any officer or employee | 11 | | of a distributor, secondary distributor, cigarette machine | 12 | | operator, manufacturer with authority to maintain manufacturer | 13 | | representatives under Section 4f of this Act, or any person
| 14 | | having knowledge of the facts, and may take testimony and | 15 | | require proof,
and may issue subpoenas duces tecum to compel | 16 | | the production of relevant
books, papers, records and | 17 | | memoranda, for the information of the
Department.
| 18 | | In the conduct of any investigation or hearing provided for | 19 | | by this Act,
neither the Department, nor any officer or | 20 | | employee thereof, shall be bound
by the technical rules of | 21 | | evidence, and no informality in the proceedings
nor in the | 22 | | manner of taking testimony shall invalidate any rule, order,
| 23 | | decision or regulation made, approved or confirmed by the | 24 | | Department.
| 25 | | The Director of Revenue, or any duly authorized officer or | 26 | | employee of
the Department, shall have the power to administer |
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| 1 | | oaths to such persons
required by this Act to give testimony | 2 | | before the said Department.
| 3 | | The books, papers, records and memoranda of the Department, | 4 | | or parts
thereof, may be proved in any hearing, investigation | 5 | | or legal proceeding by
a reproduced copy thereof under the | 6 | | certificate of the Director of Revenue.
Such reproduced copy | 7 | | shall, without further proof, be admitted into
evidence before | 8 | | the Department or in any legal proceeding.
| 9 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 10 | | (35 ILCS 130/11) (from Ch. 120, par. 453.11)
| 11 | | Sec. 11.
Every distributor of cigarettes or cigarette | 12 | | machine operator , who is required to procure a
license under | 13 | | this Act, shall keep within Illinois, at his licensed
address, | 14 | | complete and accurate records of cigarettes held, purchased,
| 15 | | manufactured, brought in or caused to be brought in from | 16 | | without the State,
and sold, or otherwise disposed of, and | 17 | | shall preserve and keep within
Illinois at his licensed address | 18 | | all invoices, bills of lading, sales
records, copies of bills | 19 | | of sale, inventory at the close of each period for
which a | 20 | | return is required of all cigarettes on hand and of all | 21 | | cigarette
revenue stamps, both affixed and unaffixed, and other | 22 | | pertinent papers and
documents relating to the making, | 23 | | manufacture, fabrication, purchase, sale or disposition of
| 24 | | cigarettes. All books and records and other papers and | 25 | | documents that are
required by this Act to be kept shall be |
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| 1 | | kept in the English language, and
shall, at all times during | 2 | | the usual business hours of the day, be subject
to inspection | 3 | | by the Department or its duly authorized agents and employees.
| 4 | | The Department may adopt rules that establish requirements, | 5 | | including record
forms and formats, for records required to be | 6 | | kept and maintained by taxpayers.
For purposes of this Section, | 7 | | "records" means all data maintained by the
taxpayer, including | 8 | | data on paper, microfilm, microfiche or any type of
| 9 | | machine-sensible data compilation. Those books, records, | 10 | | papers and documents
shall be preserved for a period of at | 11 | | least 3 years after the date of the
documents, or the date of | 12 | | the entries appearing in the records, unless the
Department, in | 13 | | writing, authorizes their destruction or disposal at an earlier
| 14 | | date. At all times during the usual business hours of the day | 15 | | any duly
authorized agent or employee of the Department may | 16 | | enter any place of business
of the distributor or cigarette | 17 | | machine operator , without a search warrant, and inspect the | 18 | | premises and the
stock or packages of cigarettes and the | 19 | | vending devices therein contained, to
determine whether any of | 20 | | the provisions of this Act are being violated. If such
agent or | 21 | | employee is denied free access or is hindered or interfered | 22 | | with in
making such examination as herein provided, the license | 23 | | of the distributor at
such premises shall be subject to | 24 | | revocation by the Department.
| 25 | | (Source: P.A. 88-480.)
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| 1 | | (35 ILCS 130/17 new) | 2 | | Sec. 17. Penalties. The number of original packages of | 3 | | cigarettes in a person's possession for the purpose of imposing | 4 | | the civil and criminal penalties contained in this Act shall be | 5 | | determined by dividing the number of cigarettes in the person's | 6 | | possession by 20 and rounding down the quotient to the next | 7 | | lowest whole number.
| 8 | | (35 ILCS 130/18) (from Ch. 120, par. 453.18)
| 9 | | Sec. 18.
Any duly authorized employee of the Department may | 10 | | arrest without
warrant any person committing in his presence a | 11 | | violation of any of the
provisions of this Act, and may without | 12 | | a search warrant inspect all cigarettes , vending devices, and | 13 | | cigarette machines
located in any place of business and seize | 14 | | any
original packages of contraband cigarettes , and any vending | 15 | | device in which such packages may be
found, and any cigarette | 16 | | machines, and such original packages , or vending devices , or | 17 | | cigarette machines so seized shall be
subject to confiscation | 18 | | and forfeiture as hereinafter provided.
| 19 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 20 | | (35 ILCS 130/18a) (from Ch. 120, par. 453.18a)
| 21 | | Sec. 18a.
After seizing any original packages of | 22 | | cigarettes, or cigarette
vending devices, or cigarette | 23 | | machines, as provided in Section 18 of this Act, the Department
| 24 | | shall hold a hearing and shall determine whether such original |
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| 1 | | packages of
cigarettes, at the time of their seizure by the | 2 | | Department, were contraband cigarettes, or whether such | 3 | | cigarette
vending devices, at the time of their seizure by the | 4 | | Department, contained
original packages of contraband | 5 | | cigarettes , or whether the cigarette machines, at the time of | 6 | | their seizure, were operated in violation of this Act . The | 7 | | Department shall give not less than 7 days' notice of the
time | 8 | | and place of such hearing to the owner of such property if he | 9 | | is
known, and also to the person in whose possession the | 10 | | property so taken was
found, if such person is known and if | 11 | | such person in possession is not the
owner of said property. In | 12 | | case neither the owner nor the person in
possession of such | 13 | | property is known, the Department shall cause
publication of | 14 | | the time and place of such hearing to be made at least once
in | 15 | | each week for 3 weeks successively in a newspaper of general | 16 | | circulation
in the county where such hearing is to be held.
| 17 | | If, as the result of such hearing, the Department shall | 18 | | determine that
the original packages of cigarettes seized were | 19 | | at the time of seizure contraband cigarettes, or that any | 20 | | cigarette
vending device at the time of its seizure contained | 21 | | original packages of
contraband cigarettes, or that the | 22 | | cigarette machine, at the time of its seizure, was operated in | 23 | | violation of this Act, the
Department shall enter an order | 24 | | declaring such original packages of
cigarettes , or such | 25 | | cigarette vending devices , or such cigarette machines | 26 | | confiscated and forfeited to
the State, and to be held by the |
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| 1 | | Department for disposal by it as provided
in Section 21 of this | 2 | | Act. The Department shall give notice of such order
to the | 3 | | owner of such property if he is known, and also to the person | 4 | | in
whose possession the property so taken was found, if such | 5 | | person is known
and if such person in possession is not the | 6 | | owner of said property. In case
neither the owner nor the | 7 | | person in possession of such property is known,
the Department | 8 | | shall cause publication of such order to be made at least
once | 9 | | in each week for 3 weeks successively in a newspaper of general
| 10 | | circulation in the county where such hearing was held.
| 11 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 12 | | (35 ILCS 130/20) (from Ch. 120, par. 453.20)
| 13 | | Sec. 20. Whenever any peace officer of the State or any | 14 | | duly authorized
officer or employee of the Department shall | 15 | | have reason to believe that any
violation of this Act has | 16 | | occurred and that the person so violating the
Act has in his, | 17 | | her or its possession any original package of contraband | 18 | | cigarettes,
or any vending device
containing such original | 19 | | packages of contraband cigarettes, or any cigarette machine, he | 20 | | may file or cause to be filed his complaint in
writing, | 21 | | verified by affidavit, with any court within whose jurisdiction
| 22 | | the premises to be searched are situated, stating the facts | 23 | | upon which such
belief is founded, the premises to be searched, | 24 | | and the property to be
seized, and procure a search warrant and | 25 | | execute the same. Upon the
execution of such search warrant, |
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| 1 | | the peace officer, or officer or employee
of the Department, | 2 | | executing such search warrant shall make due return
thereof to | 3 | | the court issuing the same, together with an inventory of the
| 4 | | property taken thereunder. The court shall thereupon issue | 5 | | process against
the owner of such property if he is known; | 6 | | otherwise, such process shall be
issued against the person in | 7 | | whose possession the property so taken is
found, if such person | 8 | | is known. In case of inability to serve such process
upon the | 9 | | owner or the person in possession of the property at the time | 10 | | of
its seizure, as hereinbefore provided, notice of the | 11 | | proceedings before the
court shall be given as required by the | 12 | | statutes of the State governing
cases of Attachment. Upon the | 13 | | return of the process duly served or upon the
posting or | 14 | | publishing of notice made, as hereinabove provided, the court | 15 | | or
jury, if a jury shall be demanded, shall proceed to | 16 | | determine whether or
not such property so seized was held or | 17 | | possessed in violation of this Act,
or whether, if a vending | 18 | | device has been so seized, it contained at the
time of its | 19 | | seizure original packages of contraband cigarettes , or whether | 20 | | the cigarette machine at the time of its seizure was operated | 21 | | in violation of the Act . In case of a finding that the original | 22 | | packages
seized were contraband cigarettes, or that any vending | 23 | | device so seized contained at
the time of its seizure original | 24 | | packages of contraband cigarettes, or that the cigarette | 25 | | machine at the time of its seizure was operated in violation of | 26 | | the Act, judgment shall be entered
confiscating and forfeiting |
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| 1 | | the property to the State and ordering its
delivery to the | 2 | | Department, and in addition thereto, the court shall have
power | 3 | | to tax and assess the costs of the proceedings.
| 4 | | When any original packages , or any cigarette vending | 5 | | device , or cigarette machine shall have
been declared forfeited | 6 | | to the State by any court, as hereinbefore
provided, and when | 7 | | such confiscated and forfeited property shall have been
| 8 | | delivered to the Department, as provided in this Act, the said | 9 | | Department
shall destroy or maintain and use such property in | 10 | | an undercover capacity. The Department may, prior to any | 11 | | destruction of cigarettes, permit the true holder of the | 12 | | trademark rights in the cigarette brand to inspect such | 13 | | contraband cigarettes, in order to assist the Department in any | 14 | | investigation regarding such cigarettes.
| 15 | | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
| 16 | | (35 ILCS 130/21) (from Ch. 120, par. 453.21)
| 17 | | Sec. 21. Destruction or use of forfeited property. | 18 | | (a) When any original packages of cigarettes , or
any | 19 | | cigarette vending device , or any cigarette machine shall have | 20 | | been declared forfeited to the State by
the Department, as | 21 | | provided in Section 18a of this Act, and when all proceedings
| 22 | | for the judicial review of the Department's decision have | 23 | | terminated, the
Department shall, to the extent that its | 24 | | decision is sustained on review, destroy or maintain and use | 25 | | such property in an undercover capacity.
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| 1 | | (b) The Department may, prior to any destruction of | 2 | | cigarettes, permit the true holder of the trademark rights in | 3 | | the cigarette brand to inspect such contraband cigarettes in | 4 | | order to assist the Department in any investigation regarding | 5 | | such cigarettes.
| 6 | | (Source: P.A. 94-776, eff. 5-19-06; 95-1053, eff. 1-1-10 .)
| 7 | | (35 ILCS 130/23) (from Ch. 120, par. 453.23)
| 8 | | Sec. 23.
Every distributor, secondary distributor, | 9 | | cigarette machine operator, manufacturer with authority to | 10 | | maintain manufacturer representatives under Section 4f of this | 11 | | Act and their manufacturer representatives, or other person who | 12 | | shall knowingly and wilfully
sell or offer for sale any | 13 | | original package, as defined in this Act,
having affixed | 14 | | thereto any fraudulent, spurious, imitation or counterfeit
| 15 | | stamp, or stamp which has been previously affixed, or affixes a | 16 | | stamp which
has previously been affixed to an original package, | 17 | | or who shall knowingly
and wilfully sell or offer for sale any | 18 | | original package, as defined in
this Act, having imprinted | 19 | | thereon underneath the sealed transparent
wrapper thereof any | 20 | | fraudulent, spurious, imitation or counterfeit tax
imprint, | 21 | | shall be deemed guilty of a Class 2 felony.
| 22 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 23 | | (35 ILCS 130/26.5 new) | 24 | | Sec. 26.5. Unlawful operation of cigarette machines. A |
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| 1 | | person who operates a cigarette machine in this State without a | 2 | | license is guilty of a Class 4 felony. Notwithstanding the | 3 | | foregoing, an individual may own a cigarette machine for that | 4 | | individual's own use and not for the purpose of resale or | 5 | | distribution of cigarettes. | 6 | | (35 ILCS 130/28a) | 7 | | Sec. 28a. If, at the time of terminating his or her | 8 | | business, any licensed distributor or cigarette machine | 9 | | operator has on hand unused stamps, the distributor or | 10 | | cigarette machine operator or his or her legal representative | 11 | | may, after Department approval, transfer or sell those unused | 12 | | stamps to another distributor licensed under this Act. The | 13 | | transferring distributor or cigarette machine operator , or his | 14 | | or her legal representative, shall report to the Department in | 15 | | writing an intention to so sell or transfer the stamps and the | 16 | | name and address of the distributor to whom the sale or | 17 | | transfer is to be made, together with the total of the face | 18 | | amount of each denomination of stamps to be so sold or | 19 | | transferred. The Department shall approve or disapprove the | 20 | | requested transfer within 48 hours after receiving the report. | 21 | | Approval shall be deemed granted if not received by the | 22 | | distributor or cigarette machine operator within 5 business | 23 | | days after the Department's receipt of the report.
| 24 | | (Source: P.A. 96-782, eff. 1-1-10.) |
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| 1 | | Section 10. The Cigarette Use Tax Act is amended by | 2 | | changing Section 1 and by adding Section 25c as follows:
| 3 | | (35 ILCS 135/1) (from Ch. 120, par. 453.31)
| 4 | | Sec. 1. For the purpose of this Act, unless otherwise | 5 | | required by the
context:
| 6 | | "Use" means the exercise by any person of any right or | 7 | | power over
cigarettes incident to the ownership or possession | 8 | | thereof, other than the
making of a sale thereof in the course | 9 | | of engaging in a business of selling
cigarettes and shall | 10 | | include the keeping or retention of cigarettes for use, except | 11 | | that "use" does not include the use of cigarettes by a | 12 | | not-for-profit research institution conducting tests | 13 | | concerning the health effects of tobacco products, provided the | 14 | | cigarettes are not offered for resale.
| 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 roll for smoking made wholly or in | 20 | | part of tobacco
irrespective of size or shape and whether or | 21 | | not such tobacco is flavored,
adulterated or mixed with any | 22 | | other ingredient, and the wrapper or cover of
which is made of | 23 | | paper or any other substance or material except tobacco.
| 24 | | "Contraband cigarettes" means: | 25 | | (a) cigarettes that do not bear a required tax stamp |
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| 1 | | under this Act; | 2 | | (b) cigarettes for which any required federal taxes | 3 | | have not been paid; | 4 | | (c) cigarettes that bear a counterfeit tax stamp; | 5 | | (d) cigarettes that are manufactured, fabricated, | 6 | | assembled, processed, packaged, or labeled by any person | 7 | | other than (i) the owner of the trademark rights in the | 8 | | cigarette brand or (ii) a person that is directly or | 9 | | indirectly authorized by such owner; | 10 | | (e) cigarettes imported into the United States, or | 11 | | otherwise distributed, in violation of the federal | 12 | | Imported Cigarette Compliance Act of 2000 (Title IV of | 13 | | Public Law 106-476); | 14 | | (f) cigarettes that have false manufacturing labels; | 15 | | (g) cigarettes identified in Section 3-10(a)(1) of | 16 | | this Act; or | 17 | | (h) cigarettes that are improperly tax stamped, | 18 | | including cigarettes that bear a tax stamp of another state | 19 | | or taxing jurisdiction ; . | 20 | | (i) cigarettes made, manufactured, or fabricated by a | 21 | | person holding a cigarette machine operator's license | 22 | | under Section 4g of the Cigarette Tax Act in the possession | 23 | | of manufacturers, distributors, secondary distributors, or | 24 | | other retailers for the purpose of resale, regardless of | 25 | | whether the tax has been paid on such cigarettes; | 26 | | (j) cigarettes in the possession of a cigarette machine |
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| 1 | | operator licensed under Section 4g of the Cigarette Tax Act | 2 | | that do not meet the requirements of this Act or the | 3 | | Cigarette Fire Safety Standard Act; or | 4 | | (k) cigarettes in the possession of an individual that | 5 | | do not meet the requirements of Section 3-10 of this Act or | 6 | | the Cigarette Fire Safety Standard Act, unless the | 7 | | cigarettes were made, manufactured, or fabricated by an | 8 | | individual for the individual's own use and consumption, | 9 | | without the aid or use of a cigarette machine in the | 10 | | possession of a cigarette machine operator holding a | 11 | | license under Section 4g of the Cigarette Tax Act. | 12 | | "Person" means any natural individual, firm, partnership, | 13 | | association,
joint stock company, joint adventure, public or | 14 | | private corporation,
however formed, limited liability | 15 | | company, or a receiver, executor,
administrator, trustee, | 16 | | guardian or other representative appointed by order of
any | 17 | | court.
| 18 | | "Department" means the Department of Revenue.
| 19 | | "Sale" means any transfer, exchange or barter in any manner | 20 | | or by any
means whatsoever for a consideration, and includes | 21 | | and means all sales made
by any person.
| 22 | | "Original Package" means the individual packet, box or | 23 | | other container
whatsoever used to contain and to convey | 24 | | cigarettes to the consumer.
| 25 | | "Distributor" means any and each of the following:
| 26 | | a. Any person engaged in the business of selling |
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| 1 | | cigarettes in this
State who brings or causes to be brought | 2 | | into this State from without this
State any original | 3 | | packages of cigarettes, on which original packages there
is | 4 | | no authorized evidence underneath a sealed transparent | 5 | | wrapper showing
that the tax liability imposed by this Act | 6 | | has been paid or assumed by the
out-of-State seller of such | 7 | | cigarettes, for sale in the course of such
business.
| 8 | | b. Any person who makes, manufactures or fabricates | 9 | | cigarettes in this
State for sale, except a person who | 10 | | makes, manufactures or fabricates
cigarettes for sale to | 11 | | residents incarcerated in penal institutions or resident
| 12 | | patients or a State-operated mental health facility.
| 13 | | c. Any person who makes, manufactures or fabricates | 14 | | cigarettes outside
this State, which cigarettes are placed | 15 | | in original packages contained in
sealed transparent | 16 | | wrappers, for delivery or shipment into this State, and
who | 17 | | elects to qualify and is accepted by the Department as a | 18 | | distributor
under Section 7 of this Act.
| 19 | | "Distributor" does not include any person who transfers | 20 | | cigarettes to a not-for-profit
research institution that | 21 | | conducts tests concerning the
health effects of tobacco | 22 | | products and who does not offer
the cigarettes for resale.
| 23 | | "Distributor maintaining a place of business in this | 24 | | State", or any like
term, means any distributor having or | 25 | | maintaining within this State,
directly or by a subsidiary, an | 26 | | office, distribution house, sales house,
warehouse or other |
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| 1 | | place of business, or any agent operating within this
State | 2 | | under the authority of the distributor or its subsidiary,
| 3 | | irrespective of whether such place of business or agent is | 4 | | located here
permanently or temporarily, or whether such | 5 | | distributor or subsidiary is
licensed to transact business | 6 | | within this State.
| 7 | | "Business" means any trade, occupation, activity or | 8 | | enterprise engaged
in or conducted in this State for the | 9 | | purpose of selling cigarettes.
| 10 | | "Prior Continuous Compliance Taxpayer" means any person | 11 | | who is licensed
under this Act and who, having been a licensee | 12 | | for a continuous period of 5
years, is determined by the | 13 | | Department not to have been either delinquent
or deficient in | 14 | | the payment of tax liability during that period or
otherwise in | 15 | | violation of this Act. Also, any taxpayer who has, as
verified | 16 | | by the Department, continuously complied with the
condition of | 17 | | his bond or other security under provisions of this Act of a
| 18 | | period of 5 consecutive years shall be considered to be a | 19 | | "prior
continuous compliance taxpayer". In calculating the | 20 | | consecutive period of
time described herein for qualification | 21 | | as a "prior continuous compliance
taxpayer", a consecutive | 22 | | period of time of qualifying compliance
immediately prior to | 23 | | the effective date of this amendatory Act of 1987 shall be
| 24 | | credited to any licensee who became licensed on or before the | 25 | | effective date
of this amendatory Act of 1987.
| 26 | | "Secondary distributor" means any person engaged in the |
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| 1 | | business of selling cigarettes who purchases stamped original | 2 | | packages of cigarettes from a licensed distributor under this | 3 | | Act or the Cigarette Tax Act, sells 75% or more of those | 4 | | cigarettes to retailers for resale, and maintains an | 5 | | established business where a substantial stock of cigarettes is | 6 | | available to retailers for resale. | 7 | | "Secondary distributor maintaining a place of business in | 8 | | this State", or any like term, means any secondary distributor | 9 | | having or maintaining within this State, directly or by a | 10 | | subsidiary, an office, distribution house, sales house, | 11 | | warehouse, or other place of business, or any agent operating | 12 | | within this State under the authority of the secondary | 13 | | distributor or its subsidiary, irrespective of whether such | 14 | | place of business or agent is located here permanently or | 15 | | temporarily, or whether such secondary distributor or | 16 | | subsidiary is licensed to transact business within this State. | 17 | | "Stamp" or "stamps" mean the indicia required to be affixed | 18 | | on a pack of cigarettes that evidence payment of the tax on | 19 | | cigarettes under Section 2 of this Act. | 20 | | "Related party" means any person that is associated with | 21 | | any other person because he or she: | 22 | | (a) is an officer or director of a business; or | 23 | | (b) is legally recognized as a partner in business. | 24 | | (Source: P.A. 95-462, eff. 8-27-07; 95-1053, eff. 1-1-10; | 25 | | 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10.)
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| 1 | | (35 ILCS 135/25c new) | 2 | | Sec. 25c. Penalties. The number of original packages of | 3 | | cigarettes in a person's possession for the purpose of imposing | 4 | | the civil and criminal penalties contained in this Act shall be | 5 | | determined by dividing the number of cigarettes in the person's | 6 | | possession by 20 and rounding down the quotient to the next | 7 | | lowest whole number.
| 8 | | Section 99. Effective date. This Act takes effect upon | 9 | | becoming law.
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| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | 35 ILCS 130/1 | from Ch. 120, par. 453.1 | | 4 | | 35 ILCS 130/2 | from Ch. 120, par. 453.2 | | 5 | | 35 ILCS 130/3 | from Ch. 120, par. 453.3 | | 6 | | 35 ILCS 130/3-10 | | | 7 | | 35 ILCS 130/4a | from Ch. 120, par. 453.4a | | 8 | | 35 ILCS 130/4d | | | 9 | | 35 ILCS 130/4g new | | | 10 | | 35 ILCS 130/4h new | | | 11 | | 35 ILCS 130/6 | from Ch. 120, par. 453.6 | | 12 | | 35 ILCS 130/7 | from Ch. 120, par. 453.7 | | 13 | | 35 ILCS 130/8 | from Ch. 120, par. 453.8 | | 14 | | 35 ILCS 130/9 | from Ch. 120, par. 453.9 | | 15 | | 35 ILCS 130/9a | from Ch. 120, par. 453.9a | | 16 | | 35 ILCS 130/9d | from Ch. 120, par. 453.9d | | 17 | | 35 ILCS 130/10 | from Ch. 120, par. 453.10 | | 18 | | 35 ILCS 130/11 | from Ch. 120, par. 453.11 | | 19 | | 35 ILCS 130/17 new | | | 20 | | 35 ILCS 130/18 | from Ch. 120, par. 453.18 | | 21 | | 35 ILCS 130/18a | from Ch. 120, par. 453.18a | | 22 | | 35 ILCS 130/20 | from Ch. 120, par. 453.20 | | 23 | | 35 ILCS 130/21 | from Ch. 120, par. 453.21 | | 24 | | 35 ILCS 130/23 | from Ch. 120, par. 453.23 | | 25 | | 35 ILCS 130/26.5 new | | |
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| 1 | | 35 ILCS 130/28a | | | 2 | | 35 ILCS 135/1 | from Ch. 120, par. 453.31 | | 3 | | 35 ILCS 135/25c new | |
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