Rep. Michael J. Zalewski

Filed: 3/15/2017

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3263

2    AMENDMENT NO. ______. Amend House Bill 3263 by replacing
3everything after the enacting clause with the following:
 
4    "Section 3. The Cannabis and Controlled Substances Tax Act
5is amended by changing Section 16 as follows:
 
6    (35 ILCS 520/16)  (from Ch. 120, par. 2166)
7    Sec. 16. All assessments are Jeopardy Assessments - lien.
8    (a) Assessment. An assessment for a dealer not possessing
9valid stamps or other official indicia showing that the tax has
10been paid shall be considered a jeopardy assessment or
11collection, as provided by Section 1102 of the Illinois Income
12Tax Act. The Department shall determine and assess a tax and
13applicable penalties and interest according to the best
14judgment and information available to the Department, which
15amount so fixed by the Department shall be prima facie correct
16and shall be prima facie evidence of the correctness of the

 

 

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1amount of tax due, as shown in such determination. When,
2according to the best judgment and information available to the
3Department with regard to all real and personal property and
4rights to property of the dealer, there is no reasonable
5expectation of collection of the amount of tax and penalty to
6be assessed, the Department may issue an assessment under this
7Section for the amount of tax without penalty.
8    (b) Filing of Lien. Upon issuance of a jeopardy assessment
9as provided by subsection (a) of this Section, the Department
10may file a notice of jeopardy assessment lien in the office of
11the recorder of the county in which any property of the
12taxpayer may be located and shall notify the taxpayer of such
13filing.
14    (c) Protest. If the taxpayer believes that he does not owe
15some or all of the amount for which the jeopardy assessment
16lien against him has been filed, he may protest within 20 days
17after being notified by the Department of the filing of such
18jeopardy assessment lien and request a hearing, whereupon the
19Department shall hold a hearing in conformity with the
20provisions of Section 908 of the Illinois Income Tax Act and,
21pursuant thereto, shall notify the taxpayer of its decision as
22to whether or not such jeopardy assessment lien will be
23released.
24    After the expiration of the period within which the person
25assessed may file an action for judicial review without such
26action being filed, a certified copy of the final assessment or

 

 

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1revised final assessment of the Department may be filed with
2the Circuit Court of the county in which the dealer resides, or
3of Cook County in the case of a dealer who does not reside in
4this State, or in the county where the violation of this Act
5took place. The certified copy of the final assessment or
6revised final assessment shall be accompanied by a
7certification which recites facts that are sufficient to show
8that the Department complied with the jurisdictional
9requirements of the Act in arriving at its final assessment or
10its revised final assessment and that the dealer had this
11opportunity for an administrative hearing and for judicial
12review, whether he availed himself or herself of either or both
13of these opportunities or not. If the court is satisfied that
14the Department complied with the jurisdictional requirements
15of the Act in arriving at its final assessment or its revised
16final assessment and that the taxpayer had his opportunity for
17an administrative hearing and for judicial review, whether he
18availed himself of either or both of these opportunities or
19not, the court shall render judgment in favor of the Department
20and against the taxpayer for the amount shown to be due by the
21final assessment or the revised final assessment, plus any
22interest which may be due, and such judgment shall be entered
23in the judgment docket of the court. Such judgment shall bear
24the same rate of interest and shall have the same effect as
25other judgments. The judgment may be enforced, and all laws
26applicable to sales for the enforcement of a judgment shall be

 

 

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1applicable to sales made under such judgments. The Department
2shall file the certified copy of its assessment, as herein
3provided, with the Circuit Court within 2 years after such
4assessment becomes final except when the taxpayer consents in
5writing to an extension of such filing period, and except that
6the time limitation period on the Department's right to file
7the certified copy of its assessment with the Circuit Court
8shall not run during any period of time in which the order of
9any court has the effect of enjoining or restraining the
10Department from filing such certified copy of its assessment
11with the Circuit Court.
12    If, when the cause of action for a proceeding in court
13accrues against a person, he or she is out of the State, the
14action may be commenced within the times herein limited, after
15his or her coming into or returning to the State; and if, after
16the cause of action accrues, he or she departs from and remains
17out of the State, the time of his or her absence from the
18State, the time of his or her absence is no part of the time
19limited for the commencement of the action; but the foregoing
20provisions concerning absence from the State shall not apply to
21any case in which, at the time the cause of action accrues, the
22party against whom the cause of action accrues is not a
23resident of this State. The time within which a court action is
24to be commenced by the Department hereunder shall not run from
25the date the taxpayer files a petition in bankruptcy under the
26Federal Bankruptcy Act until 30 days after notice of

 

 

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1termination or expiration of the automatic stay imposed by the
2Federal Bankruptcy Act.
3    No claim shall be filed against the estate of any deceased
4person or any person under legal disability for any tax or
5penalty or part of either, or interest, except in the manner
6prescribed and within the time limited by the Probate Act of
71975, as amended.
8    The collection of tax or penalty or interest by any means
9provided for herein shall not be a bar to any prosecution under
10this Act.
11    In addition to any penalty provided for in this Act, any
12amount of tax which is not paid when due shall bear interest at
13the rate determined in accordance with the Uniform Penalty and
14Interest Act, per month or fraction thereof from the date when
15such tax becomes past due until such tax is paid or a judgment
16therefor is obtained by the Department. If the time for making
17or completing an audit of a taxpayer's books and records is
18extended with the taxpayer's consent, at the request of and for
19the convenience of the Department, beyond the date on which the
20statute of limitations upon the issuance of a notice of tax
21liability by the Department otherwise run, no interest shall
22accrue during the period of such extension. Interest shall be
23collected in the same manner and as part of the tax.
24    If the Department determines that an amount of tax or
25penalty or interest was incorrectly assessed, whether as the
26result of a mistake of fact or an error of law, the Department

 

 

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1shall waive the amount of tax or penalty or interest that
2accrued due to the incorrect assessment.
3    On and after January 1, 2018, the assessment and collection
4of the tax under this Act is subject to the jurisdiction of the
5Illinois Tax Tribunal to the extent provided in the Illinois
6Independent Tax Tribunal Act of 2012.
7(Source: P.A. 97-1129, eff. 8-28-12.)
 
8    Section 5. The Illinois Independent Tax Tribunal Act of
92012 is amended by changing Sections 1-45, 1-50, 1-55, and 1-63
10and by adding Section 1-51 as follows:
 
11    (35 ILCS 1010/1-45)
12    Sec. 1-45. Jurisdiction of the Tax Tribunal.
13    (a) Except as provided by the Constitution of the United
14States, the Constitution of the State of Illinois, or any
15statutes of this State, including, but not limited to, the
16State Officers and Employees Money Disposition Act, the Tax
17Tribunal shall have original jurisdiction over all
18determinations of the Department reflected on a Notice of
19Deficiency, Notice of Tax Liability, Notice of Claim Denial, or
20Notice of Penalty Liability issued under the Illinois Income
21Tax Act, the Use Tax Act, the Service Use Tax Act, the Service
22Occupation Tax Act, the Retailers' Occupation Tax Act, the
23Cigarette Tax Act, the Cigarette Use Tax Act, the Tobacco
24Products Tax Act of 1995, the Hotel Operators' Occupation Tax

 

 

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1Act, the Motor Fuel Tax Law, the Automobile Renting Occupation
2and Use Tax Act, the Coin-Operated Amusement Device and
3Redemption Machine Tax Act, the Gas Revenue Tax Act, the Water
4Company Invested Capital Tax Act, the Telecommunications
5Excise Tax Act, the Telecommunications Infrastructure
6Maintenance Fee Act, the Public Utilities Revenue Act, the
7Electricity Excise Tax Law, the Aircraft Use Tax Law, the
8Watercraft Use Tax Law, the Gas Use Tax Law, or the Uniform
9Penalty and Interest Act. In addition, with respect to notices
10issued on or after January 1, 2018, the Tax Tribunal shall also
11have original jurisdiction over all determinations of the
12Department reflected on a Notice of Deficiency, Notice of Tax
13Liability, Notice of Claim Denial, or Notice of Penalty
14Liability issued under the County Motor Fuel Tax Law, the Live
15Adult Entertainment Facility Surcharge Act, the Vehicle Use
16Tax, the Metropolitan Pier and Exposition Authority Food and
17Beverage Tax, the Tire User Fee, the Chicago Soft Drink Tax,
18the Drycleaning Solvent Tax, the Energy Assistance Act of 1989,
19the Qualified Solid Waste Fee, the Illinois Hydraulic
20Fracturing Tax Act, or the Cannabis and Controlled Substances
21Tax Act. Jurisdiction of the Tax Tribunal is limited to Notices
22of Tax Liability, Notices of Deficiency, Notices of Claim
23Denial, and Notices of Penalty Liability where, for notices
24issued prior to January 1, 2018, the amount at issue in a
25notice, or the aggregate amount at issue in multiple notices
26issued for the same tax year or audit period, exceeds $15,000,

 

 

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1exclusive of penalties and interest. In notices issued prior to
2January 1, 2018 solely asserting either an interest or penalty
3assessment, or both, the Tax Tribunal shall have jurisdiction
4over cases where the combined total of all penalties or
5interest assessed exceeds $15,000. Beginning with notices and
6decisions issued on and after January 1, 2018, the Tax Tribunal
7shall have jurisdiction over all Notices of Tax Liability,
8Notices of Deficiency, Notices of Claim Denial, and Notices of
9Penalty Liability, all notices solely asserting either an
10interest or penalty assessment, and any decisions relating to
11the issuance or denial of an exemption ruling for any entity
12claiming a non-homestead exemption from any tax imposed under
13the Property Tax Code or any exemption from a State tax
14administered by the Department.
15    (b) Except as otherwise permitted by this Act and by the
16Constitution of the State of Illinois or otherwise by State
17law, including, but not limited to, the State Officers and
18Employees Money Disposition Act, no person shall contest any
19matter within the jurisdiction of the Tax Tribunal in any
20action, suit, or proceeding in the circuit court or any other
21court of the State. If a person attempts to do so, then such
22action, suit, or proceeding shall be dismissed without
23prejudice. The improper commencement of any action, suit, or
24proceeding does not extend the time period for commencing a
25proceeding in the Tax Tribunal.
26    (c) The Tax Tribunal may require the taxpayer to post a

 

 

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1bond equal to 25% of the liability at issue (1) upon motion of
2the Department and a showing that (A) the taxpayer's action is
3frivolous or legally insufficient or (B) the taxpayer is acting
4primarily for the purpose of delaying the collection of tax or
5prejudicing the ability ultimately to collect the tax, or (2)
6if, at any time during the proceedings, it is determined by the
7Tax Tribunal that the taxpayer is not pursuing the resolution
8of the case with due diligence. If the Tax Tribunal finds in a
9particular case that the taxpayer cannot procure and furnish a
10satisfactory surety or sureties for the kind of bond required
11herein, the Tax Tribunal may relieve the taxpayer of the
12obligation of filing such bond, if, upon the timely application
13for a lien in lieu thereof and accompanying proof therein
14submitted, the Tax Tribunal is satisfied that any such lien
15imposed would operate to secure the assessment in the manner
16and to the degree as would a bond. The Tax Tribunal shall adopt
17rules for the procedures to be used in securing a bond or lien
18under this Section.
19    (d) If, with or after the filing of a timely petition, the
20taxpayer pays all or part of the tax or other amount in issue
21before the Tax Tribunal has rendered a decision, the Tax
22Tribunal shall treat the taxpayer's petition as a protest of a
23denial of claim for refund of the amount so paid upon a written
24motion filed by the taxpayer.
25    (e) The Tax Tribunal shall not have jurisdiction to review:
26        (1) any assessment made under the Property Tax Code;

 

 

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1        (2) any decisions issued prior to January 1, 2018
2    relating to the issuance or denial of an exemption ruling
3    for any entity claiming exemption from any tax imposed
4    under the Property Tax Code or any State tax administered
5    by the Department;
6        (3) a notice of proposed tax liability, notice of
7    proposed deficiency, or any other notice of proposed
8    assessment or notice of intent to take some action;
9        (4) any action or determination of the Department
10    regarding tax liabilities that have become finalized by
11    law, including but not limited to the issuance of liens,
12    levies, and revocations, suspensions, or denials of
13    licenses or certificates of registration or any other
14    collection activities;
15        (5) any proceedings of the Department's informal
16    administrative appeals function; and
17        (6) any challenge to an administrative subpoena issued
18    by the Department.
19    (f) The Tax Tribunal shall decide questions regarding the
20constitutionality of statutes and rules adopted by the
21Department as applied to the taxpayer, but shall not have the
22power to declare a statute or rule unconstitutional or
23otherwise invalid on its face. A taxpayer challenging the
24constitutionality of a statute or rule on its face may present
25such challenge to the Tax Tribunal for the sole purpose of
26making a record for review by the Illinois Appellate Court.

 

 

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1Failure to raise a constitutional issue regarding the
2application of a statute or regulations to the taxpayer shall
3not preclude the taxpayer or the Department from raising those
4issues at the appellate court level.
5(Source: P.A. 97-1129, eff. 8-28-12; 98-463, eff. 8-16-13.)
 
6    (35 ILCS 1010/1-50)
7    Sec. 1-50. Pleadings.
8    (a) A taxpayer may commence a proceeding in the Tax
9Tribunal by filing a petition protesting the Department's
10determination imposing a liability for tax, penalty, or
11interest, or denying a claim for refund or credit application.
12The petition shall be filed within the time permitted by
13statute for filing a protest.
14    (b) The Department shall file its answer in the Tax
15Tribunal no later than 30 days after its receipt of the Tax
16Tribunal's notification that the taxpayer has filed a petition
17in the proper form or within such additional time as the Tax
18Tribunal may specify. The Department shall serve a copy of its
19answer on the taxpayer's representative or, if the taxpayer is
20not represented, on the taxpayer, and shall file proof of such
21service with the answer. Material facts alleged in the
22petition, if not expressly admitted or denied in the answer,
23shall be deemed admitted.
24    (c) Either party may amend a pleading once without leave at
25any time before the period for responding to it expires. After

 

 

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1such time, a pleading may be amended only with the written
2consent of the adverse party or with the permission of the Tax
3Tribunal. The Tax Tribunal shall freely grant consent to amend
4upon such terms as may be just. Except as otherwise ordered by
5the Tax Tribunal, there shall be an answer to an amended
6pleading if an answer is required to the pleading being
7amended. Filing of the answer, or, if the answer has already
8been filed, the amended answer shall be made no later than 30
9days after the filing of the amended petition. The taxpayer may
10not amend a petition after expiration of the time for filing a
11petition, if such amendment would have the effect of conferring
12jurisdiction on the Tax Tribunal over a matter that would
13otherwise not come within its jurisdiction. An amendment of a
14pleading shall relate back to the time of filing of the
15original pleading only as prescribed by Section 2-616 of the
16Code of Civil Procedure.
17    (d) For all notices issued prior to January 1, 2018, this
18Section applies to all cases in which the amount at issue in a
19notice, or the aggregate amount at issue in multiple notices
20issued for the same tax year or audit period, exceeds $15,000
21exclusive of penalties and interest, and in all cases involving
22notices solely asserting an interest or penalty assessment, or
23both, where the combined total of all penalties and interest
24assessed exceeds $15,000.
25    (e) For all notices issued on or after January 1, 2018,
26this Section applies to all cases in which the amount at issue

 

 

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1in a notice, or the aggregate amount at issue in multiple
2notices issued for the same tax year or audit period, exceeds
3$50,000, exclusive of penalties and interest, and in all cases
4involving notices solely asserting an interest or penalty
5assessment, or both, where the combined total of all penalties
6and interest assessed exceeds $50,000.
7(Source: P.A. 97-1129, eff. 8-28-12.)
 
8    (35 ILCS 1010/1-51 new)
9    Sec. 1-51. Pleadings in small dollar cases.
10    (a) For all notices issued on or after January 1, 2018,
11this Section applies to all cases in which the amount at issue
12in a notice, or the aggregate amount at issue in multiple
13notices issued for the same tax year or audit period, does not
14exceed $50,000 exclusive of penalties and interest, in all
15cases involving notices solely asserting an interest or penalty
16assessment or both the combined total of all penalties and
17interest assessed does not exceed $50,000, and any decisions
18relating to the issuance or denial of an exemption ruling for
19any entity claiming a non-homestead exemption from any tax
20imposed under the Property Tax Code or any exemption from a
21State tax administered by the Department.
22    (b) In all matters governed by this Section, protests, in
23order to be deemed sufficient as a matter of law, may be filed
24on forms promulgated by the Tax Tribunal and must include the
25following at a minimum:

 

 

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1        (1) the taxpayer's identification number, i.e., FEIN,
2    or individual or business account number;
3        (2) the date of issuance of the notice which is being
4    contested;
5        (3) the tax year or years and, if applicable, the
6    filing period and audit period involved;
7        (4) to the extent possible, the factual and legal
8    grounds upon which the objections to the notices are based;
9        (5) A certification that the facts stated are true,
10    correct, and complete to the best of the affiant's
11    knowledge and belief.
 
12    (35 ILCS 1010/1-55)
13    Sec. 1-55. Fees.
14    (a) The Tax Tribunal shall impose a fee of
15        (1) $500 for the filing of petitions under Section
16    1-50; or .
17        (2) a fee of $100 for the filing of petitions under
18    Section 1-51 in which the amount at issue exceeds $5000 and
19    any petition related to the issuance or denial of an
20    exemption ruling.
21    (b) The Tax Tribunal may fix a fee, not in excess of the
22fees charged and collected by the clerk of the circuit courts,
23for comparing, or for preparing and comparing, a transcript of
24the record, or for copying any record, entry, or other paper
25and the comparison and certification thereof.

 

 

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1    (c) Fees collected under this Section shall be deposited
2into the Illinois Independent Tax Tribunal Fund, a special fund
3created in the State treasury. Moneys deposited into the Fund
4shall be appropriated to the Tax Tribunal to reimburse the Tax
5Tribunal for costs associated with administering and enforcing
6the provisions of this Act.
7    (d) The Tax Tribunal shall not assign any costs or
8attorney's fees incurred by one party against another party.
9Claims for expenses and attorney's fees under Section 10-55 of
10the Illinois Administrative Procedure Act shall first be made
11to the Department of Revenue. If the claimant is dissatisfied
12because of the Department's failure to make any award or
13because of the insufficiency of the award, the claimant may
14petition the Court of Claims for the amount deemed owed.
15(Source: P.A. 97-1129, eff. 8-28-12; 98-463, eff. 8-16-13.)
 
16    (35 ILCS 1010/1-63)
17    Sec. 1-63. Automatic Remand and Mediation.
18    (a) Every case governed by this Act shall be remanded
19automatically to the Department of Revenue for a period ending
2090 days following the filing of the petition (the "remand
21period"). During the remand period, the parties shall meet and
22confer in good faith, making particular efforts to resolve the
23case by settlement, if possible. All parties may by agreement
24extend the remand period for an additional period approved by
25the administrative law judge assigned to the case, waive the

 

 

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1remand period, or have a case returned to the Tax Tribunal at
2any time.
3    (b) At any point in the proceedings before the Tax Tribunal
4after the expiration of the remand period, but prior to the
5hearing under Section 1-65 of this Act, the parties may jointly
6petition the Tax Tribunal for mediation. The purpose of the
7mediation shall be to attempt to settle any contested issues or
8the case in its entirety. An administrative law judge other
9than the one initially assigned to hear the case shall serve as
10the mediator.
11(Source: P.A. 97-1129, eff. 8-28-12.)
 
12    Section 99. Effective date. This Act takes effect upon
13becoming law.".