[ Home ] [ ILCS ] [ Search ] [ Bottom ]
[ Other General Assemblies ]
Public Act 91-0203
SB546 Enrolled LRB9104844PTpk
AN ACT in relation to taxes collected on behalf of the
State and held in trust for the benefit of the State.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Use Tax Act is amended by changing
Section 8 as follows:
(35 ILCS 105/8) (from Ch. 120, par. 439.8)
Sec. 8. Any retailer required to collect the tax imposed
by this Act shall be liable to the Department for such tax,
whether or not the tax has been collected by the retailer,
except when the retailer is relieved of the duty of remitting
the tax to the Department by virtue of having paid a tax
imposed by the Retailers' Occupation Tax Act upon his or her
gross receipts from the same transactions. To the extent
that a retailer required to collect the tax imposed by this
Act has actually collected that tax, such tax is held in
trust for the benefit of the Department. The tax herein
required to be collected by any retailer pursuant to this
Act, and any such tax collected by any retailer shall
constitute a debt owed by the retailer to this State, except
when such retailer is relieved of the duty of remitting such
tax to the Department by virtue of his being required to pay,
and his in fact paying, the tax imposed by the "Retailers'
Occupation Tax Act" upon his gross receipts from the same
transaction.
(Source: P.A. 76-222.)
Section 10. The Service Use Tax Act is amended by
changing Section 8 as follows:
(35 ILCS 110/8) (from Ch. 120, par. 439.38)
Sec. 8. Any serviceman required to collect the tax
imposed by this Act shall be liable to the Department for the
tax, whether or not the tax has been collected by the
serviceman, except when the serviceman is relieved of the
duty of remitting the tax to the Department by virtue of
having paid a tax imposed by the Service Occupation Tax Act
upon his or her sale of service involving the incidental
transfer by him or her of the same property. To the extent
that a serviceman required to collect the tax imposed by this
Act has actually collected that tax, the tax is held in trust
for the benefit of the Department. The tax herein required to
be collected by any serviceman pursuant to this Act, and any
such tax collected by any serviceman shall constitute a debt
owed by the serviceman to this State, except when such
serviceman is relieved of the duty of remitting such tax to
the Department by virtue of his being required to pay, and
his in fact paying, the tax imposed by the "Service
Occupation Tax Act" upon his sale of service involving the
incidental transfer by him of the same property.
(Source: P.A. 76-223.)
Section 15. The Telecommunications Excise Tax Act is
amended by changing Section 5 as follows:
(35 ILCS 630/5) (from Ch. 120, par. 2005)
Sec. 5. Any retailer maintaining a place of business in
this State shall collect and remit to the Department the tax
imposed by this Act. Any such retailer shall be liable for
the tax whether or not the tax has been collected by the
retailer. To the extent that a retailer required to collect
the tax imposed by this Act has actually collected that tax,
such tax is held in trust for the benefit of the Department.
The tax imposed hereunder shall be collected from the
taxpayer by a retailer maintaining a place of business in
this State and remitted to the Department pursuant to Section
5 hereof. The tax required to be collected by this Article
and any such tax collected by such retailer shall constitute
a debt owed by the retailer to this State. Retailers shall
collect the tax from the taxpayer by adding the tax to the
gross charge for the act or privilege of originating or
receiving telecommunications in this State, when sold for
use, in the manner prescribed by the Department. Whenever
possible, the tax imposed by this Article shall, when
collected, be stated as a distinct item separate and apart
from the gross charge for telecommunications. The tax
imposed by this Article shall constitute a debt of the
purchaser to the retailer who provides such taxable services
until paid, and, if unpaid, is recoverable at law in the same
manner as the original charge for such taxable services.
(Source: P.A. 86-905.)
Section 20. The Uniform Penalty and Interest Act is
amended by changing Section 3-7 as follows:
(35 ILCS 735/3-7) (from Ch. 120, par. 2603-7)
Sec. 3-7. Personal Liability Penalty.
(a) Any officer or employee of any taxpayer subject to
the provisions of a tax Act administered by the Department
who has the control, supervision or responsibility of filing
returns and making payment of the amount of any trust tax
imposed in accordance with that Act and who wilfully fails to
file the return or make the payment to the Department or
wilfully attempts in any other manner to evade or defeat the
tax shall be personally liable for a penalty equal to the
total amount of tax unpaid by the taxpayer including interest
and penalties thereon. The Department shall determine a
penalty due under this Section according to its best judgment
and information, and that determination shall be prima facie
correct and shall be prima facie evidence of a penalty due
under this Section. Proof of that determination by the
Department shall be made at any hearing before it or in any
legal proceeding by reproduced copy or computer printout of
the Department's record relating thereto in the name of the
Department under the certificate of the Director of Revenue.
If reproduced copies of the Department's records are offered
as proof of that determination, the Director must certify
that those copies are true and exact copies of records on
file with the Department. If computer print-outs of the
Department's records are offered as proof of such
determination, the Director must certify that those computer
print-outs are true and exact representations of records
properly entered into standard electronic computing
equipment, in the regular course of the Department's
business, at or reasonably near the time of the occurrence of
the facts recorded, from trustworthy and reliable
information. That certified reproduced copy or certified
computer print-out shall without further proof, be admitted
into evidence before the Department or in any legal
proceeding and shall be prima facie proof of the correctness
of the amount of tax or penalty due.
(b) The Department shall issue a notice of penalty
liability for the amount claimed by the Department pursuant
to this Section. Procedures for protest and review of a
notice of penalty liability issued pursuant to this Section
and assessment of the penalty due hereunder shall be the same
as those prescribed for protest and review of a notice of tax
liability or a notice of deficiency, as the case may be, and
the assessment of tax liability under the Act imposing that
liability.
(b-5) Any person filing an action under the
Administrative Review Law to review a final assessment or
revised final assessment (except a final assessment or
revised final assessment relating to any trust tax imposed in
accordance with the Illinois Income Tax Act) issued by the
Department under this Section shall, within 20 days after
filing the complaint, file a bond with good and sufficient
surety or sureties residing in this State or licensed to do
business in this State, or instead of bond, obtain an order
from the court imposing a lien upon the plaintiff's property
as hereinafter provided. If the person filing the complaint
fails to comply with this bonding requirement within 20 days
after filing the complaint, the Department shall file a
motion to dismiss and the court shall dismiss the action
unless the person filing the action complies with the bonding
requirements set out with this provision within 30 days after
the filing of the Department's motion to dismiss.
Upon dismissal of a complaint for failure to comply with
this subsection, the court shall enter judgment against the
taxpayer and in favor of the Department in the amount of the
final assessment or revised final assessment, together with
any interest that has accrued since the Department issued the
final assessment or revised final assessment, and for costs.
The judgment is enforceable as other judgments for the
payment of money.
The amount of the bond shall be fixed and approved by the
court, but shall not be less than the amount of the tax and
penalty claimed to be due by the Department in its final
assessment or revised final assessment to the person filing
the bond, plus the amount of interest due from that person to
the Department at the time when the Department issued its
final assessment or revised final assessment to that person.
The bond must be executed in favor of the Department and
conditioned on the taxpayer's payment within 30 days after
termination of the proceedings for judicial review of the
amount of tax, penalty, and interest found by the court to be
due in those proceedings. The bond, when filed and approved,
is, from that time until 2 years after termination of the
proceedings for judicial review in which the bond is filed, a
lien against the real estate situated in the county in which
the bond is filed of the person filing the bond and of the
surety or sureties on the bond, until the condition of the
bond is complied with or until the bond is canceled as
provided in this subsection. The lien does not apply,
however, to the real property of a corporate surety duly
licensed to do business in this State. If the person filing
the bond fails to keep its condition, the bond is forfeited,
and the Department may institute an action upon the bond in
its own name for the entire amount of the bond and costs. An
action upon the bond is in addition to any other remedy
provided by law. If the person filing the bond complies with
its condition or if, in the proceedings for judicial review
in which the bond is filed, the court determines that no tax,
penalty, or interest is due, the bond shall be canceled by
the issuer of the bond.
If the court finds in a particular case that the
plaintiff cannot furnish a satisfactory surety or sureties
for the kind of bond required in this subsection, the court
may relieve the plaintiff of the obligation of filing a bond
if, upon the timely application of the plaintiff for a lien
in place of a bond and accompanying proof, the court is
satisfied that a lien would secure the assessment as well as
would a bond. Upon that finding, the court shall enter an
order subjecting the plaintiff's real and personal property
(including subsequently acquired property) situated in the
county in which the order is entered to a lien in favor of
the Department. The lien shall be for the amount of the tax
and penalty claimed to be due by the Department in its final
assessment or revised final assessment, plus the amount of
interest due from that person to the Department at the time
when the Department issued its final assessment or revised
final assessment to that person. The lien shall continue
until the court determines in the proceedings for judicial
review that no tax, penalty, or interest is due, or until the
plaintiff pays to the Department the tax, penalty, and
interest secured by the lien. In its discretion, the court
may impose a lien regardless of the ratio of the taxpayer's
assets to the final assessment or revised final assessment
plus the amount of the interest and penalty. This subsection
does not give the Department a preference over the rights of
a bona fide purchaser, mortgagee, judgment creditor, or other
lien holder arising before the entry of the order creating
the lien in favor of the Department. "Bona fide", as used in
this subsection, does not include a mortgage of real or
personal property or other credit transaction that results in
the mortgagee or the holder of the security acting as trustee
for unsecured creditors of the taxpayer who executed the
chattel or real property mortgage or the document evidencing
the credit transaction. The lien is inferior to the lien of
general taxes, special assessments, and special taxes levied
by a political subdivision of this State. The lien is not
effective against a purchaser with respect to an item in a
retailer's stock in trade purchased from the retailer in the
usual course of the retailer's business. The lien may not be
enforced against the household effects, wearing apparel,
books, or tools or implements of a trade or profession kept
for use by any person. The lien is not effective against real
property unless and until a certified copy or memorandum of
such order is recorded in the Office of the Recorder of Deeds
for the county or counties in which the property is located.
The lien is not effective against real property whose title
is registered under the provisions of the Registered Titles
(Torrens) Act until the provisions of Section 85 of that Act
are complied with.
Service upon the Director of Revenue or the Assistant
Director of Revenue of summons issued in an action to review
a final administrative decision of the Department is service
upon the Department. The Department shall certify the record
of its proceedings if the taxpayer pays to it 75¢ per page of
testimony taken before the Department and 25¢ per page of all
other matters contained in the record, except that these
charges may be waived when the Department is satisfied that
the aggrieved party is a poor person who cannot afford to pay
the charges. If payment for the record is not made by the
taxpayer within 30 days after notice from the Department or
the Attorney General of the cost, the court in which the
proceeding is pending, on motion of the Department, shall
dismiss the complaint and (when the administrative decision
as to which the action for judicial review was filed is a
final assessment or revised final assessment) shall enter
judgment against the taxpayer and in favor of the Department
for the amount of tax and penalty shown by the Department's
final assessment or revised final assessment to be due, plus
interest as provided for in this Act from the date when the
liability upon which the interest accrued became delinquent
until the entry of the judgment in the action for judicial
review under the Administrative Review Law, and also for
costs.
(c) The personal liability imposed by this Section shall
survive the dissolution of a partnership, limited liability
company, or corporation. No notice of penalty liability
shall be issued after the expiration of 3 years after the
date all proceedings in court for the review of any final or
revised final assessments issued against a taxpayer which
constitute the basis of such penalty liability have
terminated or the time for the taking thereof has expired
without such proceedings being instituted or after the
expiration of 3 years after the date a return is filed with
the Department by a taxpayer in cases where the return
constitutes the basis of such liability. Interest shall
continue to accrue on that portion of the penalty imposed by
this Section which represents the tax unpaid by the taxpayer
at the same rate and in the same amount as interest accrues
on the tax unpaid by the taxpayer.
(d) In addition to any other remedy provided for by the
laws of this State, and provided that no hearing or
proceeding for review is pending, any Section of a tax Act
which provides a means for collection of taxes shall in the
same manner and to the same extent provide a means for the
collection of the penalty imposed by this Section. The
procedures for the filing of an action for collection of the
penalty imposed by this Section shall be the same as those
prescribed by a tax Act for the filing of an action for
collection of the tax assessed under that Act. The time
limitation period on the Department's right to bring suit to
recover the amount of such tax, or portion thereof, or
penalty or interest from such person, or if deceased or
incompetent to file a claim thereof against his estate, shall
not run during: (1) any period of time in which the order of
any Court has the effect of enjoining or restraining the
Department from bringing such suit or claim against such
person, or (2) any period of time in which the order of the
Court has the effect of enjoining or restraining the
Department from bringing suit or initiating other proper
proceedings for the collection of such amounts from the
taxpayer, or (3) any period of time the person departs from
and remains out of the State; but the foregoing provisions
concerning absence from the State shall not apply to any case
in which, at the time when a tax or penalty becomes due under
this Act, the person allegedly liable therefor is not a
resident of this State.
(e) For the purposes of this Section, "officer or
employee of any taxpayer" includes a partner of a
partnership, a manager or member of a limited liability
corporation, and a member of a registered limited liability
partnership.
(f) A trust tax is any tax for which an amount is
collected or withheld by a taxpayer from another person, and
any tax for which an amount is required to be collected or
withheld by a taxpayer from another person, regardless of
whether it is in fact collected or withheld.
(g) The personal liability imposed by this Section is in
addition to liability incurred by a partner of a partnership
or limited liability partnership resulting from the issuance
of a notice of tax liability issued to the partnership or
limited liability partnership.
(h) In addition to any other basis for imposition of
liability under this Act including under subsection (a) of
this Section, any person who collects, withholds, or receives
a tax, or any amount represented to be a tax, from another
person holds the amount so collected or withheld in special
trust for the benefit of the Department and is liable to the
Department for the amount so withheld or collected plus
accrued interest and penalty on that amount. For purposes of
this subsection, "person" shall have the same definition as
provided in Section 1 of the Retailers' Occupation Tax Act.
(Source: P.A. 89-399, eff. 8-20-95; 89-626, eff. 8-9-96;
90-458, eff. 8-17-97.)
Section 99. Effective date. This Act takes effect upon
becoming law.
[ Top ]