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92nd General Assembly

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Public Act 92-0213

HB1700 Enrolled                                LRB9201032SMpk

    AN ACT in relation to taxes, amending named Acts.

    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 2 as follows:

    (35 ILCS 105/2) (from Ch. 120, par. 439.2)
    Sec. 2.  "Use" means the exercise by any  person  of  any
right  or  power  over tangible personal property incident to
the ownership of that  property,  except  that  it  does  not
include  the  sale  of  such property in any form as tangible
personal property in the regular course of  business  to  the
extent that such property is not first subjected to a use for
which  it was purchased, and does not include the use of such
property by its owner for  demonstration  purposes:  Provided
that the property purchased is deemed to be purchased for the
purpose of resale, despite first being used, to the extent to
which  it  is  resold  as  an  ingredient of an intentionally
produced product or by-product of manufacturing.  "Use"  does
not  mean  the  demonstration  use or interim use of tangible
personal property by a retailer before he sells that tangible
personal property.  For watercraft or aircraft, if the period
of demonstration use or interim use by the  retailer  exceeds
18  months, the retailer shall pay on the retailers' original
cost price the tax imposed by this Act,  and  no  credit  for
that  tax  is  permitted  if  the  watercraft  or aircraft is
subsequently sold by the retailer.  "Use" does not  mean  the
physical  incorporation of tangible personal property, to the
extent not  first  subjected  to  a  use  for  which  it  was
purchased,  as  an  ingredient  or  constituent,  into  other
tangible  personal  property (a) which is sold in the regular
course of business or (b) which the person incorporating such
ingredient or constituent therein has undertaken at the  time
of  such  purchase  to  cause to be transported in interstate
commerce to  destinations  outside  the  State  of  Illinois:
Provided   that  the  property  purchased  is  deemed  to  be
purchased for the purpose  of  resale,  despite  first  being
used, to the extent to which it is resold as an ingredient of
an   intentionally   produced   product   or   by-product  of
manufacturing.
    "Watercraft" means  a  Class  2,  Class  3,  or  Class  4
watercraft as defined in Section 3-2 of the Boat Registration
and  Safety  Act, a personal watercraft, or any boat equipped
with an inboard motor.
    "Purchase  at  retail"  means  the  acquisition  of   the
ownership of or title to tangible personal property through a
sale at retail.
    "Purchaser"  means  anyone who, through a sale at retail,
acquires the ownership of tangible personal  property  for  a
valuable consideration.
    "Sale  at  retail" means any transfer of the ownership of
or title to tangible personal property to  a  purchaser,  for
the  purpose of use, and not for the purpose of resale in any
form as tangible personal property to the  extent  not  first
subjected to a use for which it was purchased, for a valuable
consideration: Provided that the property purchased is deemed
to  be  purchased  for  the  purpose of resale, despite first
being used, to the  extent  to  which  it  is  resold  as  an
ingredient of an intentionally produced product or by-product
of  manufacturing.   For  this  purpose,  slag produced as an
incident to manufacturing pig  iron  or  steel  and  sold  is
considered  to  be  an  intentionally  produced by-product of
manufacturing.  "Sale at retail" includes any  such  transfer
made  for resale unless made in compliance with Section 2c of
the  Retailers'  Occupation  Tax  Act,  as  incorporated   by
reference  into Section 12 of this Act.  Transactions whereby
the possession of the property is transferred but the  seller
retains  the  title  as  security  for payment of the selling
price are sales.
    "Sale at retail" shall also be construed to  include  any
Illinois  florist's  sales  transaction in which the purchase
order is received in Illinois by a florist and  the  sale  is
for  use  or  consumption,  but  the  Illinois  florist has a
florist  in  another  state  deliver  the  property  to   the
purchaser or the purchaser's donee in such other state.
    Nonreusable  tangible  personal  property that is used by
persons engaged in the business of  operating  a  restaurant,
cafeteria,  or  drive-in  is  a  sale  for  resale when it is
transferred to customers in the ordinary course  of  business
as  part  of  the  sale  of  food or beverages and is used to
deliver, package, or consume food or beverages, regardless of
where consumption of the food or beverages occurs.   Examples
of  those  items include, but are not limited to nonreusable,
paper and plastic  cups,  plates,  baskets,  boxes,  sleeves,
buckets  or  other  containers,  utensils, straws, placemats,
napkins, doggie bags, and  wrapping  or  packaging  materials
that are transferred to customers as part of the sale of food
or beverages in the ordinary course of business.
    The  purchase,  employment  and transfer of such tangible
personal property  as  newsprint  and  ink  for  the  primary
purpose of conveying news (with or without other information)
is not a purchase, use or sale of tangible personal property.
    "Selling price" means the consideration for a sale valued
in  money  whether  received in money or otherwise, including
cash, credits, property other than as  hereinafter  provided,
and  services, but not including the value of or credit given
for traded-in tangible personal property where the item  that
is  traded-in  is of like kind and character as that which is
being sold, and shall be determined without any deduction  on
account  of  the  cost  of  the  property  sold,  the cost of
materials used, labor or service cost or  any  other  expense
whatsoever,  but does not include interest or finance charges
which appear as separate items on the bill of sale  or  sales
contract  nor  charges that are added to prices by sellers on
account of the seller's tax liability under  the  "Retailers'
Occupation  Tax  Act",  or on account of the seller's duty to
collect, from the purchaser, the tax that is imposed by  this
Act,  or  on  account  of  the  seller's  tax liability under
Section 8-11-1 of the Illinois Municipal Code, as  heretofore
and  hereafter  amended,  or  on  account of the seller's tax
liability under the "County Retailers' Occupation  Tax  Act".
Effective  December  1,  1985,  "selling price" shall include
charges that are added to prices by sellers on account of the
seller's tax  liability  under  the  Cigarette  Tax  Act,  on
account  of the seller's duty to collect, from the purchaser,
the tax imposed under the  Cigarette  Use  Tax  Act,  and  on
account  of the seller's duty to collect, from the purchaser,
any cigarette tax imposed by a home rule unit.
    The phrase "like kind and character" shall  be  liberally
construed  (including  but  not  limited to any form of motor
vehicle for any form of motor vehicle, or any kind of farm or
agricultural  implement  for  any  other  kind  of  farm   or
agricultural  implement),  while not including a kind of item
which, if sold at retail by that retailer,  would  be  exempt
from  retailers' occupation tax and use tax as an isolated or
occasional sale.
    "Department" means the Department of Revenue.
    "Person" means any natural individual, firm, partnership,
association, joint stock company, joint adventure, public  or
private   corporation,   limited   liability  company,  or  a
receiver, executor, trustee, guardian or other representative
appointed by order of any court.
    "Retailer" means and includes every person engaged in the
business of  making  sales  at  retail  as  defined  in  this
Section.
    A  person  who  holds  himself  or  herself  out as being
engaged (or  who  habitually  engages)  in  selling  tangible
personal  property  at  retail  is  a retailer hereunder with
respect to  such  sales  (and  not  primarily  in  a  service
occupation) notwithstanding the fact that such person designs
and produces such tangible personal property on special order
for the purchaser and in such a way as to render the property
of  value  only  to such purchaser, if such tangible personal
property so produced on special  order  serves  substantially
the  same  function  as  stock  or standard items of tangible
personal property that are sold at retail.
    A person whose activities  are  organized  and  conducted
primarily  as  a  not-for-profit  service enterprise, and who
engages in  selling  tangible  personal  property  at  retail
(whether to the public or merely to members and their guests)
is  a  retailer  with respect to such transactions, excepting
only  a  person  organized  and  operated   exclusively   for
charitable,  religious or educational purposes either (1), to
the extent of sales by such person to its members,  students,
patients  or inmates of tangible personal property to be used
primarily for the purposes of such person,  or  (2),  to  the
extent  of sales by such person of tangible personal property
which is not sold or offered for sale  by  persons  organized
for  profit.  The selling of school books and school supplies
by schools at retail to students is not  "primarily  for  the
purposes  of"  the  school  which  does  such  selling.  This
paragraph  does  not  apply  to  nor  subject   to   taxation
occasional  dinners, social or similar activities of a person
organized and operated exclusively for charitable,  religious
or  educational  purposes, whether or not such activities are
open to the public.
    A person who is the recipient  of  a  grant  or  contract
under  Title  VII  of  the  Older Americans Act of 1965 (P.L.
92-258) and serves  meals  to  participants  in  the  federal
Nutrition Program for the Elderly in return for contributions
established  in amount by the individual participant pursuant
to a schedule of  suggested  fees  as  provided  for  in  the
federal  Act is not a retailer under this Act with respect to
such transactions.
    Persons  who  engage  in  the  business  of  transferring
tangible personal property upon  the  redemption  of  trading
stamps are retailers hereunder when engaged in such business.
    The  isolated  or  occasional  sale  of tangible personal
property at retail by a person who does not hold himself  out
as  being  engaged  (or  who  does  not habitually engage) in
selling such tangible personal property at retail or  a  sale
through  a  bulk  vending machine does not make such person a
retailer hereunder.  However, any person who is engaged in  a
business  which  is  not  subject  to  the tax imposed by the
"Retailers' Occupation Tax Act" because of involving the sale
of or a contract  to  sell  real  estate  or  a  construction
contract  to  improve  real estate, but who, in the course of
conducting  such  business,   transfers   tangible   personal
property  to users or consumers in the finished form in which
it was purchased, and which  does  not  become  real  estate,
under any provision of a construction contract or real estate
sale  or  real  estate sales agreement entered into with some
other person arising out of or  because  of  such  nontaxable
business,  is  a  retailer  to the extent of the value of the
tangible personal  property  so  transferred.   If,  in  such
transaction,  a  separate  charge  is  made  for the tangible
personal property so transferred, the value of such property,
for the purposes of this Act, is  the  amount  so  separately
charged,  but  not less than the cost of such property to the
transferor; if no separate charge is made, the value of  such
property,  for  the  purposes of this Act, is the cost to the
transferor of such tangible personal property.
    "Retailer maintaining a place of business in this State",
or any like term, means and includes  any  of  the  following
retailers:
         1.  A  retailer  having  or  maintaining within this
    State,  directly  or  by   a   subsidiary,   an   office,
    distribution house, sales house, warehouse or other place
    of   business,  or  any  agent  or  other  representative
    operating within this State under the  authority  of  the
    retailer  or its subsidiary, irrespective of whether such
    place of business or agent  or  other  representative  is
    located  here permanently or temporarily, or whether such
    retailer or subsidiary is licensed to do business in this
    State. However, the ownership of property that is located
    at the premises of a printer with which the retailer  has
    contracted  for  printing  and that consists of the final
    printed product, property that  becomes  a  part  of  the
    final  printed  product,  or  copy from which the printed
    product is produced shall  not  result  in  the  retailer
    being  deemed to have or maintain an office, distribution
    house, sales house, warehouse, or other place of business
    within this State.
         2.  A  retailer  soliciting  orders   for   tangible
    personal  property  by  means  of  a telecommunication or
    television shopping  system  (which  utilizes  toll  free
    numbers)   which  is  intended  by  the  retailer  to  be
    broadcast  by  cable  television  or   other   means   of
    broadcasting, to consumers located in this State.
         3.  A  retailer,  pursuant  to  a  contract  with  a
    broadcaster   or   publisher   located   in  this  State,
    soliciting orders for tangible personal property by means
    of  advertising  which  is  disseminated   primarily   to
    consumers  located  in this State and only secondarily to
    bordering jurisdictions.
         4.  A  retailer  soliciting  orders   for   tangible
    personal  property  by  mail  if  the  solicitations  are
    substantial  and  recurring  and if the retailer benefits
    from   any   banking,   financing,    debt    collection,
    telecommunication,  or  marketing activities occurring in
    this State or benefits from the location in this State of
    authorized installation, servicing, or repair facilities.
         5.  A retailer that is owned or  controlled  by  the
    same  interests that own or control any retailer engaging
    in business in the same or similar line  of  business  in
    this State.
         6.  A  retailer  having  a  franchisee  or  licensee
    operating  under  its  trade  name  if  the franchisee or
    licensee is  required  to  collect  the  tax  under  this
    Section.
         7.  A  retailer, pursuant to a contract with a cable
    television operator located  in  this  State,  soliciting
    orders   for  tangible  personal  property  by  means  of
    advertising which is transmitted or  distributed  over  a
    cable television system in this State.
         8.  A  retailer  engaging in activities in Illinois,
    which  activities  in  the  state  in  which  the  retail
    business engaging in such  activities  is  located  would
    constitute maintaining a place of business in that state.
    "Bulk  vending  machine" means a nonelectrically operated
vending machine, containing unsorted confections, nuts, toys,
or other items designed primarily to be used or  played  with
by  children or other merchandise which, when a coin or coins
of a denomination not larger  than  $0.50  are  one  cent  is
inserted,  are  dispensed  in  equal  portions, at random and
without selection by the customer.
(Source: P.A. 90-289, eff. 8-1-97.)

    Section 10.  The Retailers' Occupation Tax Act is amended
by changing Section 1 as follows:
    (35 ILCS 120/1) (from Ch. 120, par. 440)
    Sec.  1.   Definitions.   "Sale  at  retail"  means   any
transfer  of  the  ownership of or title to tangible personal
property  to  a  purchaser,  for  the  purpose  of   use   or
consumption, and not for the purpose of resale in any form as
tangible  personal property to the extent not first subjected
to  a  use  for  which  it  was  purchased,  for  a  valuable
consideration:   Provided  that  the  property  purchased  is
deemed to be purchased for the  purpose  of  resale,  despite
first  being  used, to the extent to which it is resold as an
ingredient of an intentionally produced product or  byproduct
of  manufacturing.   For  this  purpose,  slag produced as an
incident to manufacturing pig  iron  or  steel  and  sold  is
considered  to  be  an  intentionally  produced  byproduct of
manufacturing.  Transactions whereby the  possession  of  the
property  is  transferred but the seller retains the title as
security for payment of the selling price shall be deemed  to
be sales.
    "Sale  at  retail"  shall  be  construed  to  include any
transfer of the ownership of or title  to  tangible  personal
property  to a purchaser, for use or consumption by any other
person to whom  such  purchaser  may  transfer  the  tangible
personal  property  without  a valuable consideration, and to
include any transfer, whether made for or without a  valuable
consideration,  for  resale  in any form as tangible personal
property unless made in compliance with Section  2c  of  this
Act.
    Sales  of  tangible personal property, which property, to
the extent not first subjected to a  use  for  which  it  was
purchased,  as  an  ingredient  or constituent, goes into and
forms a part of tangible personal property  subsequently  the
subject  of  a  "Sale  at retail", are not sales at retail as
defined in this Act:  Provided that the property purchased is
deemed to be purchased for the  purpose  of  resale,  despite
first  being  used, to the extent to which it is resold as an
ingredient of an intentionally produced product or  byproduct
of manufacturing.
    "Sale  at  retail"  shall  be  construed  to  include any
Illinois florist's sales transaction in  which  the  purchase
order  is  received  in Illinois by a florist and the sale is
for use or  consumption,  but  the  Illinois  florist  has  a
florist   in  another  state  deliver  the  property  to  the
purchaser or the purchaser's donee in such other state.
    Nonreusable tangible personal property that  is  used  by
persons  engaged  in  the business of operating a restaurant,
cafeteria, or drive-in is  a  sale  for  resale  when  it  is
transferred  to  customers in the ordinary course of business
as part of the sale of food  or  beverages  and  is  used  to
deliver, package, or consume food or beverages, regardless of
where  consumption of the food or beverages occurs.  Examples
of those items include, but are not limited  to  nonreusable,
paper  and  plastic  cups,  plates,  baskets, boxes, sleeves,
buckets or other  containers,  utensils,  straws,  placemats,
napkins,  doggie  bags,  and  wrapping or packaging materials
that are transferred to customers as part of the sale of food
or beverages in the ordinary course of business.
    The purchase, employment and transfer  of  such  tangible
personal  property  as  newsprint  and  ink  for  the primary
purpose of conveying news (with or without other information)
is not a purchase, use or sale of tangible personal property.
    A person whose activities  are  organized  and  conducted
primarily  as  a  not-for-profit  service enterprise, and who
engages in  selling  tangible  personal  property  at  retail
(whether to the public or merely to members and their guests)
is  engaged  in  the  business  of  selling tangible personal
property  at  retail  with  respect  to  such   transactions,
excepting  only  a  person organized and operated exclusively
for charitable, religious or educational purposes either (1),
to the extent  of  sales  by  such  person  to  its  members,
students,  patients  or inmates of tangible personal property
to be used primarily for the purposes of such person, or (2),
to the extent of sales by such person  of  tangible  personal
property  which  is  not  sold or offered for sale by persons
organized for profit.  The selling of school books and school
supplies by schools at retail to students is  not  "primarily
for the purposes of" the school which does such selling.  The
provisions  of  this paragraph shall not apply to nor subject
to taxation occasional dinners, socials or similar activities
of  a  person  organized   and   operated   exclusively   for
charitable, religious or educational purposes, whether or not
such activities are open to the public.
    A  person  who  is  the  recipient of a grant or contract
under Title VII of the Older  Americans  Act  of  1965  (P.L.
92-258)  and  serves  meals  to  participants  in the federal
Nutrition Program for the Elderly in return for contributions
established in amount by the individual participant  pursuant
to  a  schedule  of  suggested  fees  as  provided for in the
federal Act  is  not  engaged  in  the  business  of  selling
tangible  personal  property  at  retail with respect to such
transactions.
    "Purchaser" means anyone who, through a sale  at  retail,
acquires  the  ownership  of  or  title  to tangible personal
property for a valuable consideration.
    "Reseller of motor fuel" means any person engaged in  the
business  of  selling  or delivering or transferring title of
motor  fuel  to  another  person  other  than  for   use   or
consumption.  No person shall act as a reseller of motor fuel
within  this  State  without  first  being  registered  as  a
reseller pursuant to Section 2c or  a  retailer  pursuant  to
Section 2a.
    "Selling  price"  or  the  "amount  of  sale"  means  the
consideration  for a sale valued in money whether received in
money or otherwise, including cash, credits, property,  other
than as hereinafter provided, and services, but not including
the  value of or credit given for traded-in tangible personal
property where the item that is traded-in is of like kind and
character  as  that  which  is  being  sold,  and  shall   be
determined  without  any  deduction on account of the cost of
the property sold, the  cost  of  materials  used,  labor  or
service  cost  or  any other expense whatsoever, but does not
include charges that  are  added  to  prices  by  sellers  on
account  of  the seller's tax liability under this Act, or on
account of the seller's duty to collect, from the  purchaser,
the  tax that is imposed by the Use Tax Act, or on account of
the seller's  tax  liability  under  Section  8-11-1  of  the
Illinois Municipal Code, as heretofore and hereafter amended,
or  on account of the seller's tax liability under the County
Retailers' Occupation Tax Act, or on account of the  seller's
tax  liability  under  the  Home  Rule  Municipal  Soft Drink
Retailers' Occupation Tax, or on account of the seller's  tax
liability   under   any   tax  imposed  under  the  "Regional
Transportation Authority Act", approved  December  12,  1973.
Effective  December  1,  1985,  "selling price" shall include
charges that are added to prices by sellers on account of the
seller's tax  liability  under  the  Cigarette  Tax  Act,  on
account  of the sellers' duty to collect, from the purchaser,
the tax imposed under the  Cigarette  Use  Tax  Act,  and  on
account  of the seller's duty to collect, from the purchaser,
any cigarette tax imposed by a home rule unit.
    The phrase "like kind and character" shall  be  liberally
construed  (including  but  not  limited to any form of motor
vehicle for any form of motor vehicle, or any kind of farm or
agricultural  implement  for  any  other  kind  of  farm   or
agricultural  implement),  while not including a kind of item
which, if sold at retail by that retailer,  would  be  exempt
from  retailers' occupation tax and use tax as an isolated or
occasional sale.
    "Gross receipts" from  the  sales  of  tangible  personal
property  at  retail  means  the  total  selling price or the
amount of such sales, as hereinbefore defined.  In  the  case
of  charge  and  time  sales,  the  amount  thereof  shall be
included only as  and  when  payments  are  received  by  the
seller.  Receipts  or other consideration derived by a seller
from the sale, transfer or assignment of accounts  receivable
to  a  wholly  owned  subsidiary  will not be deemed payments
prior to  the  time  the  purchaser  makes  payment  on  such
accounts.
    "Department" means the Department of Revenue.
    "Person" means any natural individual, firm, partnership,
association,  joint stock company, joint adventure, public or
private  corporation,  limited  liability   company,   or   a
receiver, executor, trustee, guardian or other representative
appointed by order of any court.
    The  isolated  or  occasional  sale  of tangible personal
property at retail by a person who does not hold himself  out
as  being  engaged  (or  who  does  not habitually engage) in
selling such tangible personal property at retail, or a  sale
through  a bulk vending machine, does not constitute engaging
in a business of selling such tangible personal  property  at
retail  within  the  meaning  of  this Act; provided that any
person who is engaged in a business which is not  subject  to
the  tax imposed by this Act because of involving the sale of
or a contract to sell real estate or a construction  contract
to   improve  real  estate  or  a  construction  contract  to
engineer, install,  and  maintain  an  integrated  system  of
products, but who, in the course of conducting such business,
transfers tangible personal property to users or consumers in
the  finished  form in which it was purchased, and which does
not become real estate or was not engineered  and  installed,
under any provision of a construction contract or real estate
sale  or  real  estate sales agreement entered into with some
other person arising out of or  because  of  such  nontaxable
business,  is  engaged  in  the  business of selling tangible
personal property at retail to the extent of the value of the
tangible personal property so  transferred.  If,  in  such  a
transaction,  a  separate  charge  is  made  for the tangible
personal property so transferred, the value of such property,
for  the  purpose  of  this  Act,  shall  be  the  amount  so
separately charged, but  not  less  than  the  cost  of  such
property  to  the  transferor; if no separate charge is made,
the value of such property, for the purposes of this Act,  is
the   cost  to  the  transferor  of  such  tangible  personal
property. Construction contracts for the improvement of  real
estate   consisting   of   engineering,   installation,   and
maintenance   of   voice,  data,  video,  security,  and  all
telecommunication systems do not  constitute  engaging  in  a
business  of  selling  tangible  personal  property at retail
within the meaning of this  Act  if  they  are  sold  at  one
specified contract price.
    A  person  who  holds  himself  or  herself  out as being
engaged (or  who  habitually  engages)  in  selling  tangible
personal  property  at  retail  is  a  person  engaged in the
business of selling  tangible  personal  property  at  retail
hereunder  with respect to such sales (and not primarily in a
service occupation) notwithstanding the fact that such person
designs and  produces  such  tangible  personal  property  on
special  order  for  the  purchaser  and  in such a way as to
render the property of value only to such purchaser, if  such
tangible  personal  property  so  produced  on  special order
serves substantially the same function as stock  or  standard
items of tangible personal property that are sold at retail.
    Persons  who  engage  in  the  business  of  transferring
tangible  personal  property  upon  the redemption of trading
stamps are engaged in the business of selling  such  property
at  retail  and  shall  be  liable  for and shall pay the tax
imposed by this Act on the basis of the retail value  of  the
property transferred upon redemption of such stamps.
    "Bulk  vending  machine" means a nonelectrically operated
vending machine, containing unsorted confections, nuts, toys,
or other items designed primarily to be used or  played  with
by  children or other merchandise which, when a coin or coins
of a denomination not larger  than  $0.50  are  one  cent  is
inserted,  are  dispensed  in  equal  portions, at random and
without selection by the customer.
(Source: P.A. 90-289, eff. 8-1-97.)

    Section 99.  Effective date.  This Act  takes  effect  on
January 1, 2002.
    Passed in the General Assembly May 10, 2001.
    Approved August 02, 2001.

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