Full Text of HB3263 100th General Assembly
HB3263ham001 100TH GENERAL ASSEMBLY | 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 | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 3. The Cannabis and Controlled Substances Tax Act | 5 | | is 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 | 9 | | valid stamps
or other official indicia showing that the tax has | 10 | | been paid shall be
considered a jeopardy assessment or | 11 | | collection, as provided by Section 1102
of the Illinois Income | 12 | | Tax Act. The Department shall determine and assess
a tax and | 13 | | applicable penalties and interest according to the best | 14 | | judgment
and information available to the Department, which | 15 | | amount so fixed by the
Department shall be prima facie correct | 16 | | and shall be prima facie evidence
of the correctness of the |
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| 1 | | amount of tax due, as shown in such determination.
When, | 2 | | according to the best judgment and information available to the
| 3 | | Department with regard to all real and personal property and | 4 | | rights to property
of the dealer, there is no reasonable | 5 | | expectation of collection of the amount
of tax and penalty to | 6 | | be assessed, the Department may issue an assessment under
this | 7 | | Section for the amount of tax without penalty.
| 8 | | (b) Filing of Lien. Upon issuance of a jeopardy assessment | 9 | | as
provided by subsection (a) of this Section, the Department | 10 | | may file a
notice of jeopardy assessment lien in the office of | 11 | | the recorder of the
county in which any property of the | 12 | | taxpayer may be located and shall
notify the taxpayer of such | 13 | | filing.
| 14 | | (c) Protest. If the taxpayer believes that he does not owe | 15 | | some or all
of the amount for which the jeopardy assessment | 16 | | lien against him has been
filed, he may protest within 20 days | 17 | | after being notified by the
Department of the filing of such | 18 | | jeopardy assessment lien and request a
hearing, whereupon the | 19 | | Department shall hold a hearing in conformity with
the | 20 | | provisions of Section 908 of the Illinois Income Tax Act and, | 21 | | pursuant
thereto, shall notify the taxpayer of its decision as | 22 | | to whether or not such
jeopardy assessment lien will be | 23 | | released.
| 24 | | After the expiration of the period within which the person | 25 | | assessed may
file an action for judicial review
without such | 26 | | action being filed, a certified copy of the final assessment
or |
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| 1 | | revised final assessment of the Department may be filed with | 2 | | the Circuit
Court of the county in which the dealer resides, or | 3 | | of Cook County in the
case of a dealer who does not reside in | 4 | | this State, or in the county where
the violation of this Act | 5 | | took place.
The certified copy of the final assessment or | 6 | | revised final assessment
shall be accompanied by a | 7 | | certification which recites facts that are
sufficient to show | 8 | | that the Department complied with the jurisdictional
| 9 | | requirements of the Act in arriving at its final assessment or | 10 | | its revised
final assessment and that the dealer had this | 11 | | opportunity for an
administrative hearing and for judicial | 12 | | review, whether he availed himself
or herself of either or both | 13 | | of these opportunities or not. If the court
is satisfied that | 14 | | the Department complied with the
jurisdictional requirements | 15 | | of the Act in arriving at its final assessment or
its revised | 16 | | final assessment and that the taxpayer had his opportunity for
| 17 | | an administrative hearing and for judicial review, whether he | 18 | | availed
himself of either or both of these opportunities or | 19 | | not, the court shall
render judgment in favor of the Department | 20 | | and against the taxpayer for
the amount shown to be due by the | 21 | | final assessment or the revised final
assessment, plus any | 22 | | interest which may be due, and such judgment shall be
entered | 23 | | in the judgment docket of the court. Such judgment shall bear | 24 | | the
same rate of interest and shall have the same effect as | 25 | | other judgments.
The judgment may be enforced, and all laws | 26 | | applicable to sales for the
enforcement of a judgment shall be |
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| 1 | | applicable to sales made under such
judgments. The Department | 2 | | shall file the certified copy of its assessment,
as herein | 3 | | provided, with the Circuit Court within 2 years after such
| 4 | | assessment becomes final except when the taxpayer consents in | 5 | | writing to an
extension of such filing period, and except that | 6 | | the time limitation period
on the Department's right to file | 7 | | the certified copy of its assessment with
the Circuit Court | 8 | | shall not run during any period of time in which the
order of | 9 | | any court has the effect of enjoining or restraining the
| 10 | | Department from filing such certified copy of its assessment | 11 | | with the
Circuit Court.
| 12 | | If, when the cause of action for a proceeding in court | 13 | | accrues against a
person, he or she is out of the State, the | 14 | | action may be commenced within
the times herein limited, after | 15 | | his or her coming into or returning to the
State; and if, after | 16 | | the cause of action accrues, he or she departs from
and remains | 17 | | out of the State, the time of his or her absence from the
| 18 | | State, the time of his or her absence is no part of the time | 19 | | limited for
the commencement of the action; but the foregoing | 20 | | provisions concerning
absence from the State shall not apply to | 21 | | any case in which, at the time
the cause of action accrues, the | 22 | | party against whom the cause of action
accrues is not a | 23 | | resident of this State. The time within which a court
action is | 24 | | to be commenced by the Department hereunder shall
not run from | 25 | | the
date the taxpayer files a petition in bankruptcy under the | 26 | | Federal
Bankruptcy Act until 30 days after notice of |
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| 1 | | termination or expiration of
the automatic stay imposed by the | 2 | | Federal Bankruptcy Act.
| 3 | | No claim shall be filed against the estate of any deceased | 4 | | person or any
person under legal disability for any tax or | 5 | | penalty or part of either, or
interest, except in the manner | 6 | | prescribed and within the time limited by the
Probate Act of | 7 | | 1975, as amended.
| 8 | | The collection of tax or penalty or interest by any means | 9 | | provided for
herein shall not be a bar to any prosecution under | 10 | | this Act.
| 11 | | In addition to any penalty provided for in this Act, any | 12 | | amount of tax
which is not paid when due shall bear interest at | 13 | | the rate determined in
accordance with the Uniform Penalty and | 14 | | Interest Act, per month or fraction
thereof from the date when | 15 | | such tax becomes past due until such tax is paid
or a judgment | 16 | | therefor is obtained by the Department. If the time for
making | 17 | | or completing an audit of a taxpayer's books and records is | 18 | | extended
with the taxpayer's consent, at the request of and for | 19 | | the convenience of
the Department, beyond the date on which the | 20 | | statute of limitations upon
the issuance of a notice of tax | 21 | | liability by the Department otherwise run,
no interest shall | 22 | | accrue during the period of such extension. Interest
shall be | 23 | | collected in the same manner and as part of the tax.
| 24 | | If the Department determines that an amount of tax or | 25 | | penalty or interest
was incorrectly assessed, whether as the | 26 | | result of a mistake of fact or an
error of law, the Department |
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| 1 | | shall waive the amount of tax or penalty or
interest that | 2 | | accrued due to the incorrect assessment.
| 3 | | On and after January 1, 2018, the assessment and collection | 4 | | of the tax under this Act is subject to the jurisdiction of the | 5 | | Illinois Tax Tribunal to the extent provided in the Illinois | 6 | | Independent 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 | 9 | | 2012 is amended by changing Sections 1-45, 1-50, 1-55, and 1-63 | 10 | | and 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 | 14 | | States, the Constitution of the State of Illinois, or any | 15 | | statutes of this State, including, but not limited to, the | 16 | | State Officers and Employees Money Disposition Act, the Tax | 17 | | Tribunal shall have original jurisdiction over all | 18 | | determinations of the Department reflected on a Notice of | 19 | | Deficiency, Notice of Tax Liability, Notice of Claim Denial, or | 20 | | Notice of Penalty Liability issued under the Illinois Income | 21 | | Tax Act, the Use Tax Act, the Service Use Tax Act, the Service | 22 | | Occupation Tax Act, the Retailers' Occupation Tax Act, the | 23 | | Cigarette Tax Act, the Cigarette Use Tax Act, the Tobacco | 24 | | Products Tax Act of 1995, the Hotel Operators' Occupation Tax |
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| 1 | | Act, the Motor Fuel Tax Law, the Automobile Renting Occupation | 2 | | and Use Tax Act, the Coin-Operated Amusement Device and | 3 | | Redemption Machine Tax Act, the Gas Revenue Tax Act, the Water | 4 | | Company Invested Capital Tax Act, the Telecommunications | 5 | | Excise Tax Act, the Telecommunications Infrastructure | 6 | | Maintenance Fee Act, the Public Utilities Revenue Act, the | 7 | | Electricity Excise Tax Law, the Aircraft Use Tax Law, the | 8 | | Watercraft Use Tax Law, the Gas Use Tax Law, or the Uniform | 9 | | Penalty and Interest Act. In addition, with respect to notices | 10 | | issued on or after January 1, 2018, the Tax Tribunal shall also | 11 | | have original jurisdiction over all determinations of the | 12 | | Department reflected on a Notice of Deficiency, Notice of Tax | 13 | | Liability, Notice of Claim Denial, or Notice of Penalty | 14 | | Liability issued under the County Motor Fuel Tax Law, the Live | 15 | | Adult Entertainment Facility Surcharge Act, the Vehicle Use | 16 | | Tax, the Metropolitan Pier and Exposition Authority Food and | 17 | | Beverage Tax, the Tire User Fee, the Chicago Soft Drink Tax, | 18 | | the Drycleaning Solvent Tax, the Energy Assistance Act of 1989, | 19 | | the Qualified Solid Waste Fee, the Illinois Hydraulic | 20 | | Fracturing Tax Act, or the Cannabis and Controlled Substances | 21 | | Tax Act. Jurisdiction of the Tax Tribunal is limited to Notices | 22 | | of Tax Liability, Notices of Deficiency, Notices of Claim | 23 | | Denial, and Notices of Penalty Liability where , for notices | 24 | | issued prior to January 1, 2018, the amount at issue in a | 25 | | notice, or the aggregate amount at issue in multiple notices | 26 | | issued for the same tax year or audit period, exceeds $15,000, |
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| 1 | | exclusive of penalties and interest. In notices issued prior to | 2 | | January 1, 2018 solely asserting either an interest or penalty | 3 | | assessment, or both, the Tax Tribunal shall have jurisdiction | 4 | | over cases where the combined total of all penalties or | 5 | | interest assessed exceeds $15,000. Beginning with notices and | 6 | | decisions issued on and after January 1, 2018, the Tax Tribunal | 7 | | shall have jurisdiction over all Notices of Tax Liability, | 8 | | Notices of Deficiency, Notices of Claim Denial, and Notices of | 9 | | Penalty Liability, all notices solely asserting either an | 10 | | interest or penalty assessment, and any decisions relating to | 11 | | the issuance or denial of an exemption ruling for any entity | 12 | | claiming a non-homestead exemption from any tax imposed under | 13 | | the Property Tax Code or any exemption from a State tax | 14 | | administered by the Department. | 15 | | (b) Except as otherwise permitted by this Act and by the | 16 | | Constitution of the State of Illinois or otherwise by State | 17 | | law, including, but not limited to, the State Officers and | 18 | | Employees Money Disposition Act, no person shall contest any | 19 | | matter within the jurisdiction of the Tax Tribunal in any | 20 | | action, suit, or proceeding in the circuit court or any other | 21 | | court of the State. If a person attempts to do so, then such | 22 | | action, suit, or proceeding shall be dismissed without | 23 | | prejudice. The improper commencement of any action, suit, or | 24 | | proceeding does not extend the time period for commencing a | 25 | | proceeding in the Tax Tribunal. | 26 | | (c) The Tax Tribunal may require the taxpayer to post a |
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| 1 | | bond equal to 25% of the liability at issue (1) upon motion of | 2 | | the Department and a showing that (A) the taxpayer's action is | 3 | | frivolous or legally insufficient or (B) the taxpayer is acting | 4 | | primarily for the purpose of delaying the collection of tax or | 5 | | prejudicing the ability ultimately to collect the tax, or (2) | 6 | | if, at any time during the proceedings, it is determined by the | 7 | | Tax Tribunal that the taxpayer is not pursuing the resolution | 8 | | of the case with due diligence. If the Tax Tribunal finds in a | 9 | | particular case that the taxpayer cannot procure and furnish a | 10 | | satisfactory surety or sureties for the kind of bond required | 11 | | herein, the Tax Tribunal may relieve the taxpayer of the | 12 | | obligation of filing such bond, if, upon the timely application | 13 | | for a lien in lieu thereof and accompanying proof therein | 14 | | submitted, the Tax Tribunal is satisfied that any such lien | 15 | | imposed would operate to secure the assessment in the manner | 16 | | and to the degree as would a bond. The Tax Tribunal shall adopt | 17 | | rules for the procedures to be used in securing a bond or lien | 18 | | under this Section. | 19 | | (d) If, with or after the filing of a timely petition, the | 20 | | taxpayer pays all or part of the tax or other amount in issue | 21 | | before the Tax Tribunal has rendered a decision, the Tax | 22 | | Tribunal shall treat the taxpayer's petition as a protest of a | 23 | | denial of claim for refund of the amount so paid upon a written | 24 | | motion 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 | 20 | | constitutionality of statutes and rules adopted by the | 21 | | Department as applied to the taxpayer, but shall not have the | 22 | | power to declare a statute or rule unconstitutional or | 23 | | otherwise invalid on its face. A taxpayer challenging the | 24 | | constitutionality of a statute or rule on its face may present | 25 | | such challenge to the Tax Tribunal for the sole purpose of | 26 | | making a record for review by the Illinois Appellate Court. |
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| 1 | | Failure to raise a constitutional issue regarding the | 2 | | application of a statute or regulations to the taxpayer shall | 3 | | not preclude the taxpayer or the Department from raising those | 4 | | issues 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 | 9 | | Tribunal by filing a petition protesting the Department's | 10 | | determination imposing a liability for tax, penalty, or | 11 | | interest, or denying a claim for refund or credit application. | 12 | | The petition shall be filed within the time permitted by | 13 | | statute for filing a protest. | 14 | | (b) The Department shall file its answer in the Tax | 15 | | Tribunal no later than 30 days after its receipt of the Tax | 16 | | Tribunal's notification that the taxpayer has filed a petition | 17 | | in the proper form or within such additional time as the Tax | 18 | | Tribunal may specify. The Department shall serve a copy of its | 19 | | answer on the taxpayer's representative or, if the taxpayer is | 20 | | not represented, on the taxpayer, and shall file proof of such | 21 | | service with the answer. Material facts alleged in the | 22 | | petition, if not expressly admitted or denied in the answer, | 23 | | shall be deemed admitted. | 24 | | (c) Either party may amend a pleading once without leave at | 25 | | any time before the period for responding to it expires. After |
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| 1 | | such time, a pleading may be amended only with the written | 2 | | consent of the adverse party or with the permission of the Tax | 3 | | Tribunal. The Tax Tribunal shall freely grant consent to amend | 4 | | upon such terms as may be just. Except as otherwise ordered by | 5 | | the Tax Tribunal, there shall be an answer to an amended | 6 | | pleading if an answer is required to the pleading being | 7 | | amended. Filing of the answer, or, if the answer has already | 8 | | been filed, the amended answer shall be made no later than 30 | 9 | | days after the filing of the amended petition. The taxpayer may | 10 | | not amend a petition after expiration of the time for filing a | 11 | | petition, if such amendment would have the effect of conferring | 12 | | jurisdiction on the Tax Tribunal over a matter that would | 13 | | otherwise not come within its jurisdiction. An amendment of a | 14 | | pleading shall relate back to the time of filing of the | 15 | | original pleading only as prescribed by Section 2-616 of the | 16 | | Code of Civil Procedure.
| 17 | | (d) For all notices issued prior to January 1, 2018, this | 18 | | Section applies to all cases in which the amount at issue in a | 19 | | notice, or the aggregate amount at issue in multiple notices | 20 | | issued for the same tax year or audit period, exceeds $15,000 | 21 | | exclusive of penalties and interest, and in all cases involving | 22 | | notices solely asserting an interest or penalty assessment, or | 23 | | both, where the combined total of all penalties and interest | 24 | | assessed exceeds $15,000. | 25 | | (e) For all notices issued on or after January 1, 2018, | 26 | | this Section applies to all cases in which the amount at issue |
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| 1 | | in a notice, or the aggregate amount at issue in multiple | 2 | | notices issued for the same tax year or audit period, exceeds | 3 | | $50,000, exclusive of penalties and interest, and in all cases | 4 | | involving notices solely asserting an interest or penalty | 5 | | assessment, or both, where the combined total of all penalties | 6 | | and 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, | 11 | | this Section applies to all cases in which the amount at issue | 12 | | in a notice, or the aggregate amount at issue in multiple | 13 | | notices issued for the same tax year or audit period, does not | 14 | | exceed $50,000 exclusive of penalties and interest, in all | 15 | | cases involving notices solely asserting an interest or penalty | 16 | | assessment or both the combined total of all penalties and | 17 | | interest assessed does not exceed $50,000, and any decisions | 18 | | relating to the issuance or denial of an exemption ruling for | 19 | | any entity claiming a non-homestead exemption from any tax | 20 | | imposed under the Property Tax Code or any exemption from a | 21 | | State tax administered by the Department. | 22 | | (b) In all matters governed by this Section, protests, in | 23 | | order to be deemed sufficient as a matter of law, may be filed | 24 | | on forms promulgated by the Tax Tribunal and must include the | 25 | | following 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 | 22 | | fees charged and collected by the clerk of the circuit courts, | 23 | | for comparing, or for preparing and comparing, a transcript of | 24 | | the record, or for copying any record, entry, or other paper | 25 | | and the comparison and certification thereof. |
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| 1 | | (c) Fees collected under this Section shall be deposited | 2 | | into the Illinois Independent Tax Tribunal Fund, a special fund | 3 | | created in the State treasury. Moneys
deposited into the Fund | 4 | | shall be appropriated to the Tax Tribunal to
reimburse the Tax | 5 | | Tribunal for costs associated with administering and enforcing | 6 | | the provisions of this Act. | 7 | | (d) The Tax Tribunal shall not assign any costs or | 8 | | attorney's fees incurred by one party against another party. | 9 | | Claims for expenses and attorney's fees under Section 10-55 of | 10 | | the Illinois Administrative Procedure Act shall first be made | 11 | | to the Department of Revenue. If the claimant is dissatisfied | 12 | | because of the Department's failure to make any award or | 13 | | because of the insufficiency of the award, the claimant may | 14 | | petition 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 | 19 | | automatically to the Department of Revenue for a period ending | 20 | | 90 days following the filing of the petition (the "remand | 21 | | period"). During the remand period, the parties shall meet and | 22 | | confer in good faith, making particular efforts to resolve the | 23 | | case by settlement, if possible. All parties may by agreement | 24 | | extend the remand period for an additional period approved by | 25 | | the administrative law judge assigned to the case, waive the |
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| 1 | | remand period, or have a case returned to the Tax Tribunal at | 2 | | any time. | 3 | | (b) At any point in the proceedings before the Tax Tribunal | 4 | | after the expiration of the remand period , but prior to the | 5 | | hearing under Section 1-65 of this Act, the parties may jointly | 6 | | petition the Tax Tribunal for mediation. The purpose of the | 7 | | mediation shall be to attempt to settle any contested issues or | 8 | | the case in its entirety. An administrative law judge other | 9 | | than the one initially assigned to hear the case shall serve as | 10 | | the mediator.
| 11 | | (Source: P.A. 97-1129, eff. 8-28-12.)
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.".
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