100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3366

 

Introduced , by Rep. Elgie R. Sims, Jr.

 

SYNOPSIS AS INTRODUCED:
 
35 ILCS 120/6  from Ch. 120, par. 445

    Amends the Retailers' Occupation Tax Act. Makes a technical change in a Section concerning credit memorandums and refunds.


LRB100 11052 HLH 21291 b

 

 

A BILL FOR

 

HB3366LRB100 11052 HLH 21291 b

1    AN ACT concerning revenue.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Retailers' Occupation Tax Act is amended by
5changing Section 6 as follows:
 
6    (35 ILCS 120/6)  (from Ch. 120, par. 445)
7    Sec. 6. Credit memorandum or refund. If it appears, after
8claim therefor filed with the the Department, that an amount of
9tax or penalty or interest has been paid which was not due
10under this Act, whether as the result of a mistake of fact or
11an error of law, except as hereinafter provided, then the
12Department shall issue a credit memorandum or refund to the
13person who made the erroneous payment or, if that person died
14or became a person under legal disability, to his or her legal
15representative, as such. For purposes of this Section, the tax
16is deemed to be erroneously paid by a retailer when the
17manufacturer of a motor vehicle sold by the retailer accepts
18the return of that automobile and refunds to the purchaser the
19selling price of that vehicle as provided in the New Vehicle
20Buyer Protection Act. When a motor vehicle is returned for a
21refund of the purchase price under the New Vehicle Buyer
22Protection Act, the Department shall issue a credit memorandum
23or a refund for the amount of tax paid by the retailer under

 

 

HB3366- 2 -LRB100 11052 HLH 21291 b

1this Act attributable to the initial sale of that vehicle.
2Claims submitted by the retailer are subject to the same
3restrictions and procedures provided for in this Act. If it is
4determined that the Department should issue a credit memorandum
5or refund, the Department may first apply the amount thereof
6against any tax or penalty or interest due or to become due
7under this Act or under the Use Tax Act, the Service Occupation
8Tax Act, the Service Use Tax Act, any local occupation or use
9tax administered by the Department, Section 4 of the Water
10Commission Act of 1985, subsections (b), (c) and (d) of Section
115.01 of the Local Mass Transit District Act, or subsections
12(e), (f) and (g) of Section 4.03 of the Regional Transportation
13Authority Act, from the person who made the erroneous payment.
14If no tax or penalty or interest is due and no proceeding is
15pending to determine whether such person is indebted to the
16Department for tax or penalty or interest, the credit
17memorandum or refund shall be issued to the claimant; or (in
18the case of a credit memorandum) the credit memorandum may be
19assigned and set over by the lawful holder thereof, subject to
20reasonable rules of the Department, to any other person who is
21subject to this Act, the Use Tax Act, the Service Occupation
22Tax Act, the Service Use Tax Act, any local occupation or use
23tax administered by the Department, Section 4 of the Water
24Commission Act of 1985, subsections (b), (c) and (d) of Section
255.01 of the Local Mass Transit District Act, or subsections
26(e), (f) and (g) of Section 4.03 of the Regional Transportation

 

 

HB3366- 3 -LRB100 11052 HLH 21291 b

1Authority Act, and the amount thereof applied by the Department
2against any tax or penalty or interest due or to become due
3under this Act or under the Use Tax Act, the Service Occupation
4Tax Act, the Service Use Tax Act, any local occupation or use
5tax administered by the Department, Section 4 of the Water
6Commission Act of 1985, subsections (b), (c) and (d) of Section
75.01 of the Local Mass Transit District Act, or subsections
8(e), (f) and (g) of Section 4.03 of the Regional Transportation
9Authority Act, from such assignee. However, as to any claim for
10credit or refund filed with the Department on and after each
11January 1 and July 1 no amount of tax or penalty or interest
12erroneously paid (either in total or partial liquidation of a
13tax or penalty or amount of interest under this Act) more than
143 years prior to such January 1 and July 1, respectively, shall
15be credited or refunded, except that if both the Department and
16the taxpayer have agreed to an extension of time to issue a
17notice of tax liability as provided in Section 4 of this Act,
18such claim may be filed at any time prior to the expiration of
19the period agreed upon.
20    No claim may be allowed for any amount paid to the
21Department, whether paid voluntarily or involuntarily, if paid
22in total or partial liquidation of an assessment which had
23become final before the claim for credit or refund to recover
24the amount so paid is filed with the Department, or if paid in
25total or partial liquidation of a judgment or order of court.
26No credit may be allowed or refund made for any amount paid by

 

 

HB3366- 4 -LRB100 11052 HLH 21291 b

1or collected from any claimant unless it appears (a) that the
2claimant bore the burden of such amount and has not been
3relieved thereof nor reimbursed therefor and has not shifted
4such burden directly or indirectly through inclusion of such
5amount in the price of the tangible personal property sold by
6him or her or in any manner whatsoever; and that no
7understanding or agreement, written or oral, exists whereby he
8or she or his or her legal representative may be relieved of
9the burden of such amount, be reimbursed therefor or may shift
10the burden thereof; or (b) that he or she or his or her legal
11representative has repaid unconditionally such amount to his or
12her vendee (1) who bore the burden thereof and has not shifted
13such burden directly or indirectly, in any manner whatsoever;
14(2) who, if he or she has shifted such burden, has repaid
15unconditionally such amount to his own vendee; and (3) who is
16not entitled to receive any reimbursement therefor from any
17other source than from his or her vendor, nor to be relieved of
18such burden in any manner whatsoever. No credit may be allowed
19or refund made for any amount paid by or collected from any
20claimant unless it appears that the claimant has
21unconditionally repaid, to the purchaser, any amount collected
22from the purchaser and retained by the claimant with respect to
23the same transaction under the Use Tax Act.
24    Any credit or refund that is allowed under this Section
25shall bear interest at the rate and in the manner specified in
26the Uniform Penalty and Interest Act.

 

 

HB3366- 5 -LRB100 11052 HLH 21291 b

1    In case the Department determines that the claimant is
2entitled to a refund, such refund shall be made only from such
3appropriation as may be available for that purpose. If it
4appears unlikely that the amount appropriated would permit
5everyone having a claim allowed during the period covered by
6such appropriation to elect to receive a cash refund, the
7Department, by rule or regulation, shall provide for the
8payment of refunds in hardship cases and shall define what
9types of cases qualify as hardship cases.
10    If a retailer who has failed to pay retailers' occupation
11tax on gross receipts from retail sales is required by the
12Department to pay such tax, such retailer, without filing any
13formal claim with the Department, shall be allowed to take
14credit against such retailers' occupation tax liability to the
15extent, if any, to which such retailer has paid an amount
16equivalent to retailers' occupation tax or has paid use tax in
17error to his or her vendor or vendors of the same tangible
18personal property which such retailer bought for resale and did
19not first use before selling it, and no penalty or interest
20shall be charged to such retailer on the amount of such credit.
21However, when such credit is allowed to the retailer by the
22Department, the vendor is precluded from refunding any of that
23tax to the retailer and filing a claim for credit or refund
24with respect thereto with the Department. The provisions of
25this amendatory Act shall be applied retroactively, regardless
26of the date of the transaction.

 

 

HB3366- 6 -LRB100 11052 HLH 21291 b

1(Source: P.A. 91-901, eff. 1-1-01.)