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Public Act 097-0587 | ||||
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AN ACT concerning revenue.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Cigarette Tax Act is amended by changing | ||||
Sections 1, 2, 4d, 7, 8, 9, 10, and 23 and by adding Sections | ||||
4f, 9f, and 11b as follows:
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(35 ILCS 130/1) (from Ch. 120, par. 453.1)
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Sec. 1. For the purposes of this Act:
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"Brand Style" means a variety of cigarettes distinguished | ||||
by the tobacco used, tar and nicotine content, flavoring used, | ||||
size of the cigarette, filtration on the cigarette or | ||||
packaging. | ||||
"Cigarette", means any
roll for smoking made wholly or in | ||||
part of tobacco irrespective of size
or shape and whether or | ||||
not such tobacco is flavored, adulterated or
mixed with any | ||||
other ingredient, and the wrapper or cover of which is
made of | ||||
paper or any other substance or material except tobacco.
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"Contraband cigarettes" means: | ||||
(a) cigarettes that do not bear a required tax stamp | ||||
under this Act; | ||||
(b) cigarettes for which any required federal taxes | ||||
have not been paid; | ||||
(c) cigarettes that bear a counterfeit tax stamp; |
(d) cigarettes that are manufactured, fabricated, | ||
assembled, processed, packaged, or labeled by any person | ||
other than (i) the owner of the trademark rights in the | ||
cigarette brand or (ii) a person that is directly or | ||
indirectly authorized by such owner; | ||
(e) cigarettes imported into the United States, or | ||
otherwise distributed, in violation of the federal | ||
Imported Cigarette Compliance Act of 2000 (Title IV of | ||
Public Law 106-476); | ||
(f) cigarettes that have false manufacturing labels; | ||
(g) cigarettes identified in Section 3-10(a)(1) of | ||
this Act; or | ||
(h) cigarettes that are improperly tax stamped, | ||
including cigarettes that bear a tax stamp of another state | ||
or taxing jurisdiction. | ||
"Person" means any natural individual, firm, partnership, | ||
association, joint
stock company, joint adventure, public or | ||
private corporation, however formed,
limited liability | ||
company, or a receiver, executor, administrator, trustee,
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guardian or other representative appointed by order of any | ||
court.
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"Prior Continuous Compliance Taxpayer" means any person | ||
who is licensed
under this Act and who, having been a licensee | ||
for a continuous period of 5
years, is determined by the | ||
Department not to have been either delinquent
or deficient in | ||
the payment of tax liability during that period or
otherwise in |
violation of this Act. Also, any taxpayer who has, as
verified | ||
by the Department, continuously complied with the condition of | ||
his
bond or other security under provisions of this Act for a | ||
period of 5
consecutive years shall be considered to be a | ||
"Prior continuous compliance
taxpayer". In calculating the | ||
consecutive period of time described herein
for qualification | ||
as a "prior continuous compliance taxpayer", a
consecutive | ||
period of time of qualifying compliance immediately prior to
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the effective date of this amendatory Act of 1987 shall be | ||
credited to any
licensee who became licensed on or before the | ||
effective date of this
amendatory Act of 1987.
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"Department" means the Department of Revenue.
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"Sale" means any transfer, exchange or barter in any manner | ||
or by any
means whatsoever for a consideration, and includes | ||
and means all sales
made by any person.
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"Original Package" means the individual packet, box or | ||
other container
whatsoever used to contain and to convey | ||
cigarettes to the consumer.
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"Distributor" means any and each of the following:
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(1) Any person engaged in the business of selling | ||
cigarettes in this
State who brings or causes to be brought | ||
into this State from without
this State any original packages | ||
of cigarettes, on which original
packages there is no | ||
authorized evidence underneath a sealed transparent
wrapper | ||
showing that the tax liability imposed by this Act has been | ||
paid
or assumed by the out-of-State seller of such cigarettes, |
for sale or
other disposition in the course of such business.
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(2) Any person who makes, manufactures or fabricates | ||
cigarettes in this
State for sale in this State, except a | ||
person who makes, manufactures
or fabricates cigarettes as a | ||
part of a correctional industries program
for sale to residents | ||
incarcerated in penal institutions or resident patients
of a | ||
State-operated mental health facility.
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(3) Any person who makes, manufactures or fabricates | ||
cigarettes
outside this State, which cigarettes are placed in | ||
original packages
contained in sealed transparent wrappers, | ||
for delivery or shipment into
this State, and who elects to | ||
qualify and is accepted by the Department
as a distributor | ||
under Section 4b of this Act.
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"Place of business" shall mean and include any place where | ||
cigarettes
are sold or where cigarettes are manufactured, | ||
stored or kept for the
purpose of sale or consumption, | ||
including any vessel, vehicle, airplane,
train or vending | ||
machine.
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"Manufacturer representative" means a director, officer, | ||
or employee of a manufacturer who has obtained authority from | ||
the Department under Section 4f to maintain representatives in | ||
Illinois that provide or sell original packages of cigarettes | ||
made, manufactured, or fabricated by the manufacturer to | ||
retailers in compliance with Section 4f of this Act to promote | ||
cigarettes made, manufactured, or fabricated by the | ||
manufacturer. |
"Business" means any trade, occupation, activity or | ||
enterprise
engaged in for the purpose of selling cigarettes in | ||
this State.
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"Retailer" means any person who engages in the making of | ||
transfers of
the ownership of, or title to, cigarettes to a | ||
purchaser for use or
consumption and not for resale in any | ||
form, for a valuable consideration. "Retailer" does not include | ||
a person:
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(1) who transfers to residents incarcerated in penal | ||
institutions
or resident patients of a State-operated | ||
mental health facility ownership
of cigarettes made, | ||
manufactured, or fabricated as part of a correctional
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industries program; or | ||
(2) who transfers cigarettes to a not-for-profit | ||
research institution that conducts tests concerning the | ||
health effects of tobacco products and who does not offer | ||
the cigarettes for resale.
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"Retailer" shall be construed to include any person who | ||
engages in
the making of transfers of the ownership of, or | ||
title to, cigarettes to
a purchaser, for use or consumption by | ||
any other person to whom such
purchaser may transfer the | ||
cigarettes without a valuable consideration,
except a person | ||
who transfers to residents incarcerated in penal institutions
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or resident patients of a State-operated mental health facility | ||
ownership
of cigarettes made, manufactured or fabricated as | ||
part of a correctional
industries program.
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"Secondary distributor" means any person engaged in the | ||
business of selling cigarettes who purchases stamped original | ||
packages of cigarettes from a licensed distributor under this | ||
Act or the Cigarette Use Tax Act, sells 75% or more of those | ||
cigarettes to retailers for resale, and maintains an | ||
established business where a substantial stock of cigarettes is | ||
available to retailers for resale. | ||
"Stamp" or "stamps" mean the indicia required to be affixed | ||
on a pack of cigarettes that evidence payment of the tax on | ||
cigarettes under Section 2 of this Act. | ||
"Related party" means any person that is associated with | ||
any other person because he or she: | ||
(a) is an officer or director of a business; or | ||
(b) is legally recognized as a partner in business. | ||
(Source: P.A. 95-462, eff. 8-27-07; 95-1053, eff. 1-1-10; | ||
96-782, eff. 1-1-10; 96-1027, eff. 7-12-10.)
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(35 ILCS 130/2) (from Ch. 120, par. 453.2)
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Sec. 2. Tax imposed; rate; collection, payment, and | ||
distribution;
discount. | ||
(a) A tax is imposed upon any person engaged in business as | ||
a
retailer of cigarettes in this State at the rate of 5 1/2 | ||
mills per
cigarette sold, or otherwise disposed of in the | ||
course of such business in
this State. In addition to any other | ||
tax imposed by this Act, a tax is
imposed upon any person | ||
engaged in business as a retailer of cigarettes in
this State |
at a rate of 1/2 mill per cigarette sold or otherwise disposed
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of in the course of such business in this State on and after | ||
January 1,
1947, and shall be paid into the Metropolitan Fair | ||
and Exposition Authority
Reconstruction Fund or as otherwise | ||
provided in Section 29. On and after December 1, 1985, in | ||
addition to any
other tax imposed by this Act, a tax is imposed | ||
upon any person engaged in
business as a retailer of cigarettes | ||
in this State at a rate of 4 mills per
cigarette sold or | ||
otherwise disposed of in the course of such business in
this | ||
State. Of the additional tax imposed by this amendatory Act of | ||
1985,
$9,000,000 of the moneys received by the Department of | ||
Revenue pursuant to
this Act shall be paid each month into the | ||
Common School Fund. On and after
the effective date of this | ||
amendatory Act of 1989, in addition to any other tax
imposed by | ||
this Act, a tax is imposed upon any person engaged in business | ||
as a
retailer of cigarettes at the rate of 5 mills per | ||
cigarette sold or
otherwise disposed of in the course of such | ||
business in this State.
On and after the effective date of this | ||
amendatory Act of 1993, in addition
to any other tax imposed by | ||
this Act, a tax is imposed upon any person engaged
in business | ||
as a retailer of cigarettes at the rate of 7 mills per | ||
cigarette
sold or otherwise disposed of in the course of such | ||
business in this State.
On and after December 15, 1997, in | ||
addition
to any other tax imposed by this Act, a tax is imposed | ||
upon any person engaged
in business as a retailer of cigarettes | ||
at the rate of 7 mills per cigarette
sold or otherwise disposed |
of in the course of such business of this State.
All of the | ||
moneys received by the Department of Revenue pursuant to this | ||
Act
and the Cigarette Use Tax Act from the additional taxes | ||
imposed by this
amendatory Act of 1997, shall be paid each | ||
month into the Common School Fund.
On and after July 1, 2002, | ||
in addition to any other tax imposed by this Act,
a tax is | ||
imposed upon any person engaged in business as a retailer of
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cigarettes at the rate of 20.0 mills per cigarette sold or | ||
otherwise disposed
of
in the course of such business in this | ||
State.
The payment of such taxes shall be evidenced by a stamp | ||
affixed to
each original package of cigarettes, or an | ||
authorized substitute for such stamp
imprinted on each original | ||
package of such cigarettes underneath the sealed
transparent | ||
outside wrapper of such original package, as hereinafter | ||
provided.
However, such taxes are not imposed upon any activity | ||
in such business in
interstate commerce or otherwise, which | ||
activity may not under
the Constitution and statutes of the | ||
United States be made the subject of
taxation by this State.
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Beginning on the effective date of this amendatory Act of | ||
the 92nd General
Assembly and through June 30, 2006,
all of the | ||
moneys received by the Department of Revenue pursuant to this | ||
Act
and the Cigarette Use Tax Act, other than the moneys that | ||
are dedicated to the Common
School Fund, shall be distributed | ||
each month as follows: first, there shall be
paid into the | ||
General Revenue Fund an amount which, when added to the amount
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paid into the Common School Fund for that month, equals |
$33,300,000, except that in the month of August of 2004, this | ||
amount shall equal $83,300,000; then, from
the moneys | ||
remaining, if any amounts required to be paid into the General
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Revenue Fund in previous months remain unpaid, those amounts | ||
shall be paid into
the General Revenue Fund;
then, beginning on | ||
April 1, 2003, from the moneys remaining, $5,000,000 per
month | ||
shall be paid into the School Infrastructure Fund; then, if any | ||
amounts
required to be paid into the School Infrastructure Fund | ||
in previous months
remain unpaid, those amounts shall be paid | ||
into the School Infrastructure
Fund;
then the moneys remaining, | ||
if any, shall be paid into the Long-Term Care
Provider Fund.
To | ||
the extent that more than $25,000,000 has been paid into the | ||
General
Revenue Fund and Common School Fund per month for the | ||
period of July 1, 1993
through the effective date of this | ||
amendatory Act of 1994 from combined
receipts
of the Cigarette | ||
Tax Act and the Cigarette Use Tax Act, notwithstanding the
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distribution provided in this Section, the Department of | ||
Revenue is hereby
directed to adjust the distribution provided | ||
in this Section to increase the
next monthly payments to the | ||
Long Term Care Provider Fund by the amount paid to
the General | ||
Revenue Fund and Common School Fund in excess of $25,000,000 | ||
per
month and to decrease the next monthly payments to the | ||
General Revenue Fund and
Common School Fund by that same excess | ||
amount.
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Beginning on July 1, 2006, all of the moneys received by | ||
the Department of Revenue pursuant to this Act and the |
Cigarette Use Tax Act, other than the moneys that are dedicated | ||
to the Common School Fund, shall be distributed each month as | ||
follows: first, there shall be paid into the General Revenue | ||
Fund an amount that, when added to the amount paid into the | ||
Common School Fund for that month, equals $29,200,000; then, | ||
from the moneys remaining, if any amounts required to be paid | ||
into the General Revenue Fund in previous months remain unpaid, | ||
those amounts shall be paid into the General Revenue Fund; then | ||
from the moneys remaining, $5,000,000 per month shall be paid | ||
into the School Infrastructure Fund; then, if any amounts | ||
required to be paid into the School Infrastructure Fund in | ||
previous months remain unpaid, those amounts shall be paid into | ||
the School Infrastructure Fund; then the moneys remaining, if | ||
any, shall be paid into the Long-Term Care Provider Fund.
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When any tax imposed herein terminates or has terminated, | ||
distributors
who have bought stamps while such tax was in | ||
effect and who therefore paid
such tax, but who can show, to | ||
the Department's satisfaction, that they
sold the cigarettes to | ||
which they affixed such stamps after such tax had
terminated | ||
and did not recover the tax or its equivalent from purchasers,
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shall be allowed by the Department to take credit for such | ||
absorbed tax
against subsequent tax stamp purchases from the | ||
Department by such
distributor.
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The impact of the tax levied by this Act is imposed upon | ||
the retailer
and shall be prepaid or pre-collected by the | ||
distributor for the purpose of
convenience and facility only, |
and the amount of the tax shall be added to
the price of the | ||
cigarettes sold by such distributor. Collection of the tax
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shall be evidenced by a stamp or stamps affixed to each | ||
original package of
cigarettes, as hereinafter provided.
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Each distributor shall collect the tax from the retailer at | ||
or before
the time of the sale, shall affix the stamps as | ||
hereinafter required, and
shall remit the tax collected from | ||
retailers to the Department, as
hereinafter provided. Any | ||
distributor who fails to properly collect and pay
the tax | ||
imposed by this Act shall be liable for the tax. Any | ||
distributor having
cigarettes to which stamps have been affixed | ||
in his possession for sale on the
effective date of this | ||
amendatory Act of 1989 shall not be required to pay the
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additional tax imposed by this amendatory Act of 1989 on such | ||
stamped
cigarettes. Any distributor having cigarettes to which | ||
stamps have been affixed
in his or her possession for sale at | ||
12:01 a.m. on the effective date of this
amendatory Act of | ||
1993, is required to pay the additional tax imposed by this
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amendatory Act of 1993 on such stamped cigarettes. This | ||
payment, less the
discount provided in subsection (b), shall be | ||
due when the distributor first
makes a purchase of cigarette | ||
tax stamps after the effective date of this
amendatory Act of | ||
1993, or on the first due date of a return under this Act
after | ||
the effective date of this amendatory Act of 1993, whichever | ||
occurs
first. Any distributor having cigarettes to which stamps | ||
have been affixed
in his possession for sale on December 15, |
1997
shall not be required to pay the additional tax imposed by | ||
this amendatory Act
of 1997 on such stamped cigarettes.
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Any distributor having cigarettes to which stamps have been | ||
affixed in his
or her
possession for sale on July 1, 2002 shall | ||
not be required to pay the additional
tax imposed by this | ||
amendatory Act of the 92nd General Assembly on those
stamped
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cigarettes.
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Distributors making sales of cigarettes to secondary | ||
distributors shall add the amount of the tax to the price of | ||
the cigarettes sold by the distributors. Secondary | ||
distributors making sales of cigarettes to retailers shall | ||
include the amount of the tax in the price of the cigarettes | ||
sold to retailers. The amount of tax shall not be less than the | ||
amount of taxes imposed by the State and all local | ||
jurisdictions. The amount of local taxes shall be calculated | ||
based on the location of the retailer's place of business shown | ||
on the retailer's certificate of registration or | ||
sub-registration issued to the retailer pursuant to Section 2a | ||
of the Retailers' Occupation Tax Act. The original packages of | ||
cigarettes sold to the retailer shall bear all the required | ||
stamps, or other indicia, for the taxes included in the price | ||
of cigarettes. | ||
The amount of the Cigarette Tax imposed by this Act shall | ||
be separately
stated, apart from the price of the goods, by | ||
distributors, manufacturer representatives, secondary | ||
distributors, and
retailers, in all bills and sales invoices.
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(b) The distributor shall be required to collect the taxes | ||
provided
under paragraph (a) hereof, and, to cover the costs of | ||
such collection,
shall be allowed a discount during any year | ||
commencing July 1st and ending
the following June 30th in | ||
accordance with the schedule set out
hereinbelow, which | ||
discount shall be allowed at the time of purchase of the
stamps | ||
when purchase is required by this Act, or at the time when the | ||
tax
is remitted to the Department without the purchase of | ||
stamps from the
Department when that method of paying the tax | ||
is required or authorized by
this Act. Prior to December 1, | ||
1985, a discount equal to 1 2/3% of
the amount of the tax up to | ||
and including the first $700,000 paid hereunder by
such | ||
distributor to the Department during any such year; 1 1/3% of | ||
the next
$700,000 of tax or any part thereof, paid hereunder by | ||
such distributor to the
Department during any such year; 1% of | ||
the next $700,000 of tax, or any part
thereof, paid hereunder | ||
by such distributor to the Department during any such
year, and | ||
2/3 of 1% of the amount of any additional tax paid hereunder by | ||
such
distributor to the Department during any such year shall | ||
apply. On and after
December 1, 1985, a discount equal to 1.75% | ||
of the amount of the tax payable
under this Act up to and | ||
including the first $3,000,000 paid hereunder by such
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distributor to the Department during any such year and 1.5% of | ||
the amount of
any additional tax paid hereunder by such | ||
distributor to the Department during
any such year shall apply.
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Two or more distributors that use a common means of |
affixing revenue tax
stamps or that are owned or controlled by | ||
the same interests shall be
treated as a single distributor for | ||
the purpose of computing the discount.
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(c) The taxes herein imposed are in addition to all other | ||
occupation or
privilege taxes imposed by the State of Illinois, | ||
or by any political
subdivision thereof, or by any municipal | ||
corporation.
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(Source: P.A. 96-1027, eff. 7-12-10.)
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(35 ILCS 130/4d) | ||
Sec. 4d. Sales of cigarettes to and by retailers. In-state | ||
makers, manufacturers, and fabricators licensed as | ||
distributors under Section 4 of this Act and out-of-state | ||
makers, manufacturers, and fabricators holding permits under | ||
Section 4b of this Act may not sell original packages of | ||
cigarettes to retailers. A retailer may sell only original | ||
packages of cigarettes obtained from manufacturer | ||
representatives, licensed secondary distributors , or licensed | ||
distributors other than in-state makers, manufacturers, or | ||
fabricators licensed as distributors under Section 4 of this | ||
Act and out-of-state makers, manufacturers, or fabricators | ||
holding permits under Section 4b of this Act.
| ||
(Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10; | ||
96-1027, eff. 7-12-10.) | ||
(35 ILCS 130/4f new) |
Sec. 4f. Manufacturer representatives. | ||
(a) No manufacturer may market cigarettes produced by the | ||
manufacturer directly to retailers in this State without first | ||
having obtained authorization from the Department. Application | ||
for authority to maintain representatives in this State to | ||
market in this State cigarettes produced by the manufacturer | ||
shall be made to the Department on a form furnished and | ||
prescribed by the Department. Each applicant under this Section | ||
shall furnish the following information to the Department on a | ||
form signed and verified by the applicant under penalty of | ||
perjury: | ||
(1) the name and address of the applicant; | ||
(2) the address of every location from which the | ||
applicant proposes to engage in business in this State; | ||
(3) the number of manufacturer representatives the | ||
applicant requests to maintain in this State; and | ||
(4) any other additional information as the Department | ||
may reasonably require. | ||
The following manufacturers are ineligible to receive | ||
authorization to maintain manufacturer representatives in this | ||
State: | ||
(1) a manufacturer who owes, at the time of | ||
application, any delinquent cigarette taxes that have been | ||
determined by law to be due and unpaid, unless the | ||
applicant has entered into an agreement approved by the | ||
Department to pay the amount due; |
(2) a manufacturer who has had a license revoked within | ||
the past 2 years for misconduct relating to stolen or | ||
contraband cigarettes or has been convicted of a state or | ||
federal crime, punishable by imprisonment of one year or | ||
more, relating to stolen or contraband cigarettes; | ||
(3) a manufacturer who has been found, after notice and | ||
a hearing, to have imported or caused to be imported into | ||
the United States for sale or distribution any cigarette in | ||
violation of 19 U.S.C. 1681a; | ||
(4) a manufacturer who has been found, after notice and | ||
a hearing, to have imported or caused to be imported into | ||
the United States for sale or distribution or manufactured | ||
for sale or distribution in the United States any cigarette | ||
that does not fully comply with the Federal Cigarette | ||
Labeling and Advertising Act (15 U.S.C. 1331, et seq.); | ||
(5) a manufacturer who has been found, after notice and | ||
a hearing, to have made a material false statement in an | ||
application or has failed to produce records required to be | ||
maintained by this Act; | ||
(6) a manufacturer who has been found, after notice and | ||
hearing, to have violated any Section of this Act; or | ||
(7) a manufacturer licensed as a distributor under | ||
Section 4 of this Act or holding a permit under Section 4b | ||
of this Act. | ||
The Department, upon receipt of an application from a | ||
manufacturer who is eligible to maintain manufacturer |
representatives in this State, shall notify the applicant in | ||
writing, not more than 60 days after an application has been | ||
received, that the applicant may or may not maintain the | ||
requested number of manufacturer representatives in this | ||
State. A copy of the notice authorizing a manufacturer to | ||
maintain manufacturer representatives in this State shall be | ||
available for inspection by the Department at each place of | ||
business identified in the application and in the motor vehicle | ||
operated by marketing representatives in the course of | ||
performing his or her duties in this State on behalf of the | ||
manufacturer. | ||
A manufacturer representative shall notify the Department | ||
of any change in the information contained on the application | ||
form and shall do so within 30 days after any such change. | ||
(b) Only directors, officers, and employees of the | ||
manufacturer may act as manufacturer representatives in this | ||
State. The manufacturer shall provide to the Department the | ||
names and addresses of the manufacturer representatives | ||
operating in this State and the make, model, and license plate | ||
number of each motor vehicle operated by a manufacturer | ||
representative in the course of performing his or her duties in | ||
this State on behalf of the manufacturer. The following | ||
individuals may not act as manufacturer representatives: | ||
(1) an individual who owes any delinquent cigarette | ||
taxes that have been determined by law to be due and | ||
unpaid, unless the individual has entered into an agreement |
approved by the Department to pay the amount due; | ||
(2) an individual who has had a license revoked within | ||
the past 2 years for misconduct relating to stolen or | ||
contraband cigarettes or has been convicted of a state or | ||
federal crime, punishable by imprisonment of one year or | ||
more, relating to stolen or contraband cigarettes; | ||
(3) an individual who has been found, after notice and | ||
a hearing, to have made a material false statement in an | ||
application or has failed to produce records required to be | ||
maintained by this Act; or | ||
(4) an individual who has been found, after notice and | ||
hearing, to have violated any Section of this Act. | ||
(c) Manufacturer representatives may sell to retailers in | ||
this State only original packages of cigarettes made, | ||
manufactured, or fabricated by the manufacturer and purchased | ||
or obtained from a distributor licensed under this Act, or the | ||
Cigarette Tax Use Act, and on which tax stamps have been | ||
affixed. Manufacturer representatives may sell up to 600 | ||
stamped original packages of cigarettes in a calendar year, for | ||
the purpose of promoting the manufacturer's brands of | ||
cigarettes. A manufacturer representative may not possess more | ||
than 500 stamped original packages of cigarettes made, | ||
manufactured, or fabricated by the manufacturer and purchased | ||
or obtained from a distributor licensed under this Act or the | ||
Cigarette Use Tax Act. Any original packages of cigarettes in | ||
the possession of a manufacturer representative that (i) are |
not made, manufactured, or fabricated by the manufacturer and | ||
purchased or obtained from a distributor licensed under this | ||
Act or the Cigarette Use Tax Act, other than cigarettes for | ||
personal use and consumption, (ii) exceed the maximum quantity | ||
of 500 original packages of cigarettes, excluding packages of | ||
cigarettes for personal use and consumption; (iii) violate | ||
Section 3-10 of this Act; or (iv) do not have the proper tax | ||
stamps affixed, are contraband and subject to seizure and | ||
forfeiture. | ||
Manufacturer representatives may sell stamped original | ||
packages of cigarettes to retailers on behalf of licensed | ||
distributors. The manufacturer representative shall provide | ||
the distributor with a signed receipt for the cigarettes | ||
obtained from the distributor. The distributor shall invoice | ||
the retailer, and the retailer shall pay the distributor for | ||
all cigarettes provided to retailers by manufacturer | ||
representatives on behalf of a distributor. | ||
Manufacturer representatives may sell stamped original | ||
packages of cigarettes to retailers that are purchased from | ||
licensed distributors. Distributors shall provide manufacturer | ||
representatives with invoices for stamped original packages of | ||
cigarettes sold to manufacturer representatives. Manufacturer | ||
representatives shall invoice retailers, and the retailers | ||
shall pay the manufacturer representatives for all original | ||
packages of cigarettes sold to retailers. | ||
(d) Any person aggrieved by any decision of the Department |
under this Section may, within 20 days after notice of the | ||
decision, protest and request a hearing. Upon receiving a | ||
request for a hearing, the Department shall give notice to the | ||
person requesting the hearing of the time and place fixed for | ||
the hearing and shall hold a hearing in conformity with the | ||
provisions of this Act and then issue its final administrative | ||
decision in the matter to that person. In the absence of a | ||
protest and request for a hearing within 20 days, the | ||
Department's decision shall become final without any further | ||
determination being made or notice given.
| ||
(35 ILCS 130/7) (from Ch. 120, par. 453.7)
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Sec. 7.
The Department or any officer or employee of the | ||
Department
designated, in writing, by the Director thereof, | ||
shall at its or his or
her own instance, or on the written | ||
request of any distributor, secondary distributor, | ||
manufacturer with authority to maintain manufacturer | ||
representatives, or other interested
party to the proceeding, | ||
issue subpoenas requiring the attendance of and
the giving of | ||
testimony by witnesses, and subpoenas duces tecum requiring
the | ||
production of books, papers, records or memoranda. All | ||
subpoenas and
subpoenas duces tecum issued under the terms of | ||
this Act may be served by
any person of full age. The fees of | ||
witnesses for attendance and travel
shall be the same as the | ||
fees of witnesses before the circuit court of this
State; such | ||
fees to be paid when the witness is excused from further
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attendance. When the witness is subpoenaed at the instance of | ||
the
Department or any officer or employee thereof, such fees | ||
shall be paid in
the same manner as other expenses of the | ||
Department, and when the witness
is subpoenaed at the instance | ||
of any other party to any such proceeding,
the cost of service | ||
of the subpoena or subpoena duces tecum and the fee of
the | ||
witness shall be borne by the party at whose instance the | ||
witness is
summoned. In such case the Department, in its | ||
discretion, may require a
deposit to cover the cost of such | ||
service and witness fees. A subpoena or
subpoena duces tecum so | ||
issued shall be served in the same manner as a subpoena
or | ||
subpoena duces tecum issued out of a court.
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Any circuit court of this State, upon the
application of | ||
the Department or any officer or employee thereof, or upon
the | ||
application of any other party to the proceeding, may, in its
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discretion, compel the attendance of witnesses, the production | ||
of books,
papers, records or memoranda and the giving of | ||
testimony before the
Department or any officer or employee | ||
thereof conducting an investigation
or holding a hearing | ||
authorized by this Act, by an attachment for contempt,
or | ||
otherwise, in the same manner as production of evidence may be | ||
compelled
before the court.
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The Department or any officer or employee thereof, or any | ||
other party in
an investigation or hearing before the | ||
Department, may cause the
depositions of witnesses within the | ||
State to be taken in the manner
prescribed by law for like |
depositions, or depositions for discovery in
civil actions in | ||
courts of this State, and to that end compel the
attendance of | ||
witnesses and the production of books, papers, records or
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memoranda, in the same manner hereinbefore provided.
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(Source: P.A. 96-1027, eff. 7-12-10.)
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(35 ILCS 130/8) (from Ch. 120, par. 453.8)
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Sec. 8.
The Department may make, promulgate and enforce | ||
such
reasonable rules and regulations relating to the | ||
administration and
enforcement of this Act as may be deemed | ||
expedient.
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Whenever notice is required by this Act, such notice may be | ||
given by
United States certified or registered mail, addressed | ||
to the person concerned at his
last known address, and proof of | ||
such mailing shall be sufficient for the
purposes of this Act. | ||
Notice of any hearing provided for by this Act shall
be so | ||
given not less than 7 days prior to the day fixed for the | ||
hearing.
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Hearings provided for in this Act shall be held:
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(1) In Cook County, if the taxpayer's or licensee's | ||
principal place of business is in
that county;
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(2) At the Department's office nearest the taxpayer's | ||
or licensee's principal place of
business, if the | ||
taxpayer's or licensee's principal place of business is in | ||
Illinois but
outside Cook County;
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(3) In Sangamon County, if the taxpayer's or licensee's |
principal place of business is
outside Illinois.
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The Circuit Court of the County wherein the hearing is held | ||
has
power to review all final administrative decisions of the | ||
Department in
administering this Act. The provisions of the | ||
Administrative Review Law,
and all amendments and
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modifications thereof, and the rules adopted pursuant thereto, | ||
shall
apply to and govern all proceedings for the judicial | ||
review of final
administrative decisions of the Department | ||
under this Act. The term
"administrative decision" is defined | ||
as in Section 3-101 of the Code of Civil Procedure.
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Service upon the Director of Revenue or Assistant Director | ||
of Revenue
of summons issued in any action to review a final
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administrative decision shall be service upon the Department. | ||
The
Department shall certify the record of its proceedings if | ||
the distributor , or secondary distributor , or manufacturer | ||
with authority to maintain manufacturer representatives pays | ||
to it the sum of 75¢ per page of testimony taken before the | ||
Department
and 25¢ per page of all other matters contained in | ||
such record, except that
these charges may be waived where the | ||
Department is satisfied that the aggrieved
party is a poor | ||
person who cannot afford to pay such charges.
Before the | ||
delivery of such record to the person applying for it, payment
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of these charges must be made, and if
the record is not paid | ||
for within 30 days after notice that such record
is available, | ||
the
complaint may be dismissed by the court upon motion of the | ||
Department.
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No stay order shall be entered by the Circuit Court unless | ||
the
distributor , or secondary distributor , or manufacturer | ||
with authority to maintain manufacturer representatives files | ||
with the court a bond in an amount fixed and approved by
the | ||
court, to indemnify the State against all loss and injury which | ||
may be
sustained by it on account of the review proceedings and | ||
to secure all
costs which may be occasioned by such | ||
proceedings.
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Whenever any proceeding provided by this Act is begun | ||
before the
Department, either by the Department or by a person | ||
subject to this Act,
and such person thereafter dies or becomes | ||
a person under legal disability
before such
proceeding is | ||
concluded, the legal representative of the deceased person
or | ||
of the person under legal disability shall notify
the | ||
Department of such death or legal disability.
Such legal | ||
representative, as such, shall then be substituted
by the | ||
Department for such person. If the legal representative fails | ||
to
notify the Department of his or her appointment as such | ||
legal representative, the
Department may, upon its own motion, | ||
substitute such legal representative
in the proceeding pending | ||
before the Department for the person who died or
became a | ||
person under legal disability.
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(Source: P.A. 96-1027, eff. 7-12-10.)
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(35 ILCS 130/9) (from Ch. 120, par. 453.9)
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Sec. 9. Returns; remittance. Every distributor who is |
required to
procure a license under this
Act, but who is not a | ||
manufacturer of cigarettes in original packages
which are | ||
contained in a sealed transparent wrapper, shall, on or before
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the 15th day of each calendar month, file a return with the | ||
Department,
showing the quantity of cigarettes manufactured | ||
during the preceding
calendar month, the quantity of cigarettes | ||
brought into this State or
caused to be brought into this State | ||
from outside this State during the
preceding calendar month | ||
without authorized evidence on the original
packages of such | ||
cigarettes underneath the sealed transparent wrapper
thereof | ||
that the tax liability imposed by this Act has been assumed by | ||
the
out-of-State seller of such cigarettes, the quantity of | ||
cigarettes
purchased tax-paid during the preceding calendar | ||
month either within or
outside this State, the quantity of | ||
cigarettes sold by manufacturer representatives on behalf of | ||
the distributor, the quantity of cigarettes sold to | ||
manufacturer representatives, and the quantity of cigarettes | ||
sold or otherwise
disposed of during the preceding calendar | ||
month. Such return shall be filed
upon forms furnished and | ||
prescribed by the Department and shall contain
such other | ||
information as the Department may reasonably require.
The | ||
Department may promulgate rules to require that the | ||
distributor's return
be accompanied by appropriate | ||
computer-generated magnetic media supporting
schedule data in | ||
the format required by the Department, unless, as provided by
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rule, the Department grants an exception upon petition of a |
distributor.
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Illinois manufacturers of cigarettes in original packages | ||
which are
contained inside a sealed transparent wrapper shall | ||
file a return by the
5th day of each month covering the | ||
preceding calendar month. Each such
return shall be accompanied | ||
by the appropriate remittance for tax as
provided in the last | ||
paragraph of Section 3 of this Act. Each such return
shall show | ||
the quantity of such cigarettes manufactured during the period
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covered by the return, the quantity of cigarettes sold or | ||
otherwise
disposed of during the period covered by the return | ||
and such other
information as the Department may lawfully | ||
require. Such returns shall be
filed on forms prescribed and | ||
furnished by the Department. Each such return
shall be | ||
accompanied by a copy of each invoice rendered by such
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manufacturer to any purchaser to whom such manufacturer | ||
delivered
cigarettes (or caused cigarettes to be delivered) | ||
during the period covered
by the return.
The Department may | ||
promulgate rules to require that the manufacturer's return
be | ||
accompanied by appropriate computer-generated magnetic media | ||
supporting
schedule data in the format required by the | ||
Department, unless, as provided by
rule, the Department grants | ||
an exception upon petition of a manufacturer.
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(Source: P.A. 92-322, eff. 1-1-02.)
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(35 ILCS 130/9f new) | ||
Sec. 9f. Manufacturer representatives; reports. Every |
manufacturer with authority to maintain manufacturer | ||
representatives as defined by Section 4f of this Act shall, on | ||
or before the 15th day of each calendar month, file a report | ||
with the Department, showing the quantity of cigarettes | ||
purchased from licensed distributors during the preceding | ||
calendar month, either within or outside this State, and the | ||
quantity of cigarettes sold to retailers or otherwise disposed | ||
of during the preceding calendar month. Such reports shall be | ||
filed in the form prescribed by the Department and shall | ||
contain such other information as the Department may reasonably | ||
require. The report shall be filed electronically and be | ||
accompanied by appropriate computer generated magnetic media | ||
supporting schedule data in the format required by the | ||
Department, unless, as provided by rule, the Department grants | ||
an exception upon petition of a manufacturer with authority to | ||
maintain manufacturer representatives in this State. | ||
A certification by the Director of the Department that a | ||
report has not been filed, or that information has not been | ||
supplied pursuant to the provisions of this Act, shall be prima | ||
facie evidence thereof.
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(35 ILCS 130/10) (from Ch. 120, par. 453.10)
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Sec. 10.
The Department, or any officer or employee | ||
designated in writing
by the Director thereof, for the purpose | ||
of administering and enforcing the
provisions of this Act, may | ||
hold investigations and hearings concerning
any matters |
covered by this Act, and may examine books, papers, records or
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memoranda bearing upon the sale or other disposition of | ||
cigarettes by a
distributor , or secondary distributor, | ||
manufacturer with authority to maintain manufacturer | ||
representatives under Section 4f of this Act, or manufacturer | ||
representative, and may issue subpoenas requiring the | ||
attendance of a
distributor , or secondary distributor, | ||
manufacturer with authority to maintain manufacturer | ||
representatives under Section 4f of this Act, or manufacturer | ||
representative, or any officer or employee of a distributor , or | ||
secondary distributor, manufacturer with authority to maintain | ||
manufacturer representatives under Section 4f of this Act, or | ||
any person
having knowledge of the facts, and may take | ||
testimony and require proof,
and may issue subpoenas duces | ||
tecum to compel the production of relevant
books, papers, | ||
records and memoranda, for the information of the
Department.
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In the conduct of any investigation or hearing provided for | ||
by this Act,
neither the Department, nor any officer or | ||
employee thereof, shall be bound
by the technical rules of | ||
evidence, and no informality in the proceedings
nor in the | ||
manner of taking testimony shall invalidate any rule, order,
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decision or regulation made, approved or confirmed by the | ||
Department.
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The Director of Revenue, or any duly authorized officer or | ||
employee of
the Department, shall have the power to administer | ||
oaths to such persons
required by this Act to give testimony |
before the said Department.
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The books, papers, records and memoranda of the Department, | ||
or parts
thereof, may be proved in any hearing, investigation | ||
or legal proceeding by
a reproduced copy thereof under the | ||
certificate of the Director of Revenue.
Such reproduced copy | ||
shall, without further proof, be admitted into
evidence before | ||
the Department or in any legal proceeding.
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(Source: P.A. 96-1027, eff. 7-12-10.)
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(35 ILCS 130/11b new) | ||
Sec. 11b. Manufacturer representatives; records. Every | ||
manufacturer with authority to maintain manufacturer | ||
representatives under Section 4f of this Act shall keep within | ||
Illinois, at his business address identified under Section 4f | ||
of this Act, complete and accurate records of cigarettes | ||
purchased, sold, or otherwise disposed of, and shall preserve | ||
and keep within Illinois at his business address all invoices, | ||
sales records, copies of bills of sale, inventory at the close | ||
of each period for which a report is required of all cigarettes | ||
on hand, and other pertinent papers and documents relating to | ||
the purchase, sale, or disposition of cigarettes. All books and | ||
records and other papers and documents that are required by | ||
this Act to be kept shall be kept in the English language, and | ||
shall, at all times during the usual business hours of the day, | ||
be subject to inspection by the Department or its duly | ||
authorized agents and employees. The Department may adopt rules |
that establish requirements, including record forms and | ||
formats, for records required to be kept and maintained by | ||
manufacturers with authority to maintain manufacturer | ||
representatives under Section 4f of this Act and their | ||
manufacturer representatives. For purposes of this Section, | ||
"records" means all data maintained by the manufacturers with | ||
authority to maintain manufacturer representatives under | ||
Section 4f of this Act and their manufacturer representatives, | ||
including data on paper, microfilm, microfiche or any type of | ||
machine sensible data compilation. Those books, records, | ||
papers, and documents shall be preserved for a period of at | ||
least 3 years after the date of the documents, or the date of | ||
the entries appearing in the records, unless the Department, in | ||
writing, authorizes their destruction or disposal at an earlier | ||
date. At all times during the usual business hours of the day, | ||
any duly authorized agent or employee of the Department may | ||
enter any place of business of the manufacturers with authority | ||
to maintain manufacturer representatives under Section 4f of | ||
this Act and their manufacturer representatives, or inspect any | ||
motor vehicle used by a manufacturer representative in the | ||
course of business, without a search warrant and may inspect | ||
the premises, motor vehicle, and any packages of cigarettes | ||
therein contained to determine whether any of the provisions of | ||
this Act are being violated. If such agent or employee is | ||
denied free access or is hindered or interfered with in making | ||
such examination as herein provided, the ability to maintain |
marketing representatives in Illinois may be withdrawn by the | ||
Department.
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(35 ILCS 130/23) (from Ch. 120, par. 453.23)
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Sec. 23.
Every distributor, secondary distributor, | ||
manufacturer with authority to maintain manufacturer | ||
representatives under Section 4f of this Act and their | ||
manufacturer representatives, or other person who shall | ||
knowingly and wilfully
sell or offer for sale any original | ||
package, as defined in this Act,
having affixed thereto any | ||
fraudulent, spurious, imitation or counterfeit
stamp, or stamp | ||
which has been previously affixed, or affixes a stamp which
has | ||
previously been affixed to an original package, or who shall | ||
knowingly
and wilfully sell or offer for sale any original | ||
package, as defined in
this Act, having imprinted thereon | ||
underneath the sealed transparent
wrapper thereof any | ||
fraudulent, spurious, imitation or counterfeit tax
imprint, | ||
shall be deemed guilty of a Class 2 felony.
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(Source: P.A. 96-1027, eff. 7-12-10.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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