HB5144 103RD GENERAL ASSEMBLY

LRB103 37917 HLH 68049 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5144

Introduced 2/9/2024, by Rep. Marcus C. Evans, Jr.

SYNOPSIS AS INTRODUCED:

35 ILCS 145/2	from Ch. 120, par. 481b.32
35 ILCS 145/3	from Ch. 120, par. 481b.33
35 ILCS 145/3-2 new
35 ILCS 145/3-3 new
35 ILCS 145/4	from Ch. 120, par. 481b.34
35 ILCS 145/5	from Ch. 120, par. 481b.35
35 ILCS 145/6	from Ch. 120, par. 481b.36

Amends the Hotel Operators' Occupation Tax Act. Provides that re-renters of hotel rooms who meet certain criteria related to gross receipts or number of transactions are required to collect and remit the tax under the Act. Effective immediately.

A BILL FOR

AN ACT concerning revenue.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Hotel Operators' Occupation Tax Act is amended by changing Sections 2, 3, 4, 5, and 6 and by adding Sections 3-2 and 3-3 as follows:

(35 ILCS 145/2) (from Ch. 120, par. 481b.32)

Sec. 2. Definitions. As used in this Act, unless the context otherwise requires:

(1) "Hotel" means any building or buildings in which the public may, for a consideration, obtain living quarters, sleeping or housekeeping accommodations. The term includes, but is not limited to, inns, motels, tourist homes or courts, lodging houses, rooming houses and apartment houses, retreat centers, conference centers, and hunting lodges.

(2) "Operator" means any person engaged in the business of renting, leasing, or letting rooms in operating a hotel.

(3) "Occupancy" means the use or possession, or the right to the use or possession, of any room or rooms in a hotel for any purpose, or the right to the use or possession of the furnishings or to the services and accommodations accompanying the use and possession of the room or rooms.

(4) "Room" or "rooms" means any living quarters, sleeping or housekeeping accommodations.

(5) "Permanent resident" means any person who occupied or has the right to occupy any room or rooms, regardless of whether or not it is the same room or rooms, in a hotel for at least 30 consecutive days.

(6) "Rent" or "rental" means the consideration received for occupancy, valued in money, whether received in money or otherwise, including all receipts, cash, credits and property or services of any kind or nature."Rent" or "rental" includes any fee, charge, or commission received by a re-renter of hotel rooms specifically in connection with the re-rental of hotel rooms.

(7) "Department" means the Department of Revenue.

(8) "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.

(9) "Re-renter of hotel rooms" means a person who is not employed by the hotel operator but who (i) obtains from the hotel operator the right or authority to grant control of, access to, or occupancy of a hotel room in this State to a guest of the hotel or (ii) facilitates the booking of a hotel room located in this State. A person who obtains those rights or authorities from the hotel operator is not considered a re-renter of a hotel room if the person operates under a shared hotel brand with the operator.

(Source: P.A. 100-213, eff. 8-18-17.)

(35 ILCS 145/3) (from Ch. 120, par. 481b.33)

Sec. 3. Rate; exemptions.

(a) A tax is imposed upon hotel operators persons engaged in the business of renting, leasing or letting rooms in a hotel at the rate of 5% of 94% of the gross rental receipts from engaging in business as a hotel operator such renting, leasing or letting, excluding, however, from gross rental receipts, the proceeds of such renting, leasing or letting hotel rooms to permanent residents of a that hotel and proceeds from the tax imposed under subsection (c) of Section 13 of the Metropolitan Pier and Exposition Authority Act.

(b) There shall be imposed an additional tax upon hotel operators persons engaged in the business of renting, leasing or letting rooms in a hotel at the rate of 1% of 94% of the gross rental receipts received by the hotel operator from engaging in business as a hotel operator from such renting, leasing or letting, excluding, however, from gross rental receipts, the proceeds of such renting, leasing or letting to permanent residents of that hotel and proceeds from the tax imposed under subsection (c) of Section 13 of the Metropolitan Pier and Exposition Authority Act.

(b-5) Beginning on January 1, 2025, if the renting, leasing, or letting of a hotel room is done through a re-renter of hotel rooms who meets either of the following thresholds, then, subject to the provisions of Section 3-2 and 3-3, the re-renter is considered the hotel operator for the purposes of the taxes under subsections (a) and (b):

(1) the cumulative gross receipts from rentals in Illinois by the re-renter of hotel rooms are $100,000 or more; or

(2) the re-renter of hotel rooms cumulatively enters into 200 or more separate transactions for rentals in Illinois.

A re-renter of hotel rooms shall determine on a quarterly basis, ending on the last day of March, June, September, and December, whether he or she meets the threshold of either paragraph (1) or (2) of this subsection (b-5) for the preceding 12-month period. If the re-renter of hotel rooms meets the threshold of either paragraph (1) or (2) for a 12-month period, he or she is subject to tax under this Act and is required to remit the tax imposed under this Act and file returns for the 12-month period beginning on the first day of the next month after he or she determines that he or she meets the threshold of paragraph (1) or (2). At the end of that 12-month period, the re-renter of hotel rooms shall determine whether he or she continued to meet the threshold of either paragraph (1) or (2) during the preceding 12-month period. If he or she met the threshold in either paragraph (1) or (2) for the preceding 12-month period, he or she is considered a hotel operator in this State and is required to remit the tax imposed under this Act and file returns for the subsequent 12-month period. If, at the end of a 12-month period during which a re-renter is required to remit the tax imposed under this Act, the re-renter determines that he or she did not meet the threshold in either paragraph (1) or (2) during the preceding 12-month period, he or she shall subsequently determine on a quarterly basis, ending on the last day of March, June, September, and December, whether he or she meets the threshold of either paragraph (1) or (2) for the preceding 12-month period.

(c) No funds received pursuant to this Act shall be used to advertise for or otherwise promote new competition in the hotel business.

(d) However, such tax is not imposed upon the privilege of engaging in any business in Interstate Commerce or otherwise, which business may not, under the Constitution and Statutes of the United States, be made the subject of taxation by this State. In addition, the tax is not imposed upon gross rental receipts for which the hotel operator is prohibited from obtaining reimbursement for the tax from the customer by reason of a federal treaty.

(d-5) On and after July 1, 2017, the tax imposed by this Act shall not apply to gross rental receipts received by an entity that is organized and operated exclusively for religious purposes and possesses an active Exemption Identification Number issued by the Department pursuant to the Retailers' Occupation Tax Act when acting as a hotel operator renting, leasing, or letting rooms:

(1) in furtherance of the purposes for which it is organized; or

(2) to entities that (i) are organized and operated exclusively for religious purposes, (ii) possess an active Exemption Identification Number issued by the Department pursuant to the Retailers' Occupation Tax Act, and (iii) rent the rooms in furtherance of the purposes for which they are organized.

No gross rental receipts are exempt under paragraph (2) of this subsection (d-5) unless the hotel operator obtains the active Exemption Identification Number from the exclusively religious entity to whom it is renting and maintains that number in its books and records. Gross rental receipts from all rentals other than those described in items (1) or (2) of this subsection (d-5) are subject to the tax imposed by this Act unless otherwise exempt under this Act.

This subsection (d-5) is exempt from the sunset provisions of Section 3-5 of this Act.

(d-10) On and after July 1, 2023, the tax imposed by this Act shall not apply to gross rental receipts received from the renting, leasing, or letting of rooms to an entity that is organized and operated exclusively by an organization chartered by the United States Congress for the purpose of providing disaster relief and that possesses an active Exemption Identification Number issued by the Department pursuant to the Retailers' Occupation Tax Act if the renting, leasing, or letting of the rooms is in furtherance of the purposes for which the exempt organization is organized. This subsection (d-10) is exempt from the sunset provisions of Section 3-5 of this Act.

(e) Persons subject to the tax imposed by this Act may reimburse themselves for their tax liability under this Act by separately stating such tax as an additional charge, which charge may be stated in combination, in a single amount, with any tax imposed pursuant to Sections 8-3-13 and 8-3-14 of the Illinois Municipal Code, and Section 25.05-10 of "An Act to revise the law in relation to counties".

(f) If any hotel operator collects an amount (however designated) which purports to reimburse such operator for hotel operators' occupation tax liability measured by receipts which are not subject to hotel operators' occupation tax, or if any hotel operator, in collecting an amount (however designated) which purports to reimburse such operator for hotel operators' occupation tax liability measured by receipts which are subject to tax under this Act, collects more from the guest customer than the operators' hotel operators' occupation tax liability in the transaction is, the guest customer shall have a legal right to claim a refund of such amount from such operator. However, if such amount is not refunded to the guest customer for any reason, the hotel operator is liable to pay such amount to the Department.

(Source: P.A. 103-9, eff. 6-7-23.)

(35 ILCS 145/3-2 new)

Sec. 3-2. No resale exemption; tax incurred by re-renters of hotel rooms. A hotel operator who rents, leases, or lets rooms subject to tax under this Act to a re-renter of hotel rooms incurs the tax under this Act on the gross rental receipts it receives from that re-renter of hotel rooms and cannot claim any resale exemption. In such situations, the re-renter of hotel rooms incurs tax under this Act on its gross rental receipts as provided in Section 3 of this Act.

(35 ILCS 145/3-3 new)

Sec. 3-3. Re-renter of hotel rooms; credit for tax reimbursement. A re-renter of hotel rooms may take a credit against the tax it incurs on the rental of a hotel room under this Act for the amount it paid under subsection (f) of Section 3 of this Act to a hotel operator as reimbursement for the tax incurred under this Act for the rental of that room for the purposes of re-rental.

(35 ILCS 145/4) (from Ch. 120, par. 481b.34)

Sec. 4. Books and records. Every operator shall keep separate books or records of his business as an operator so as to show the rents and occupancies taxable under this Act separately from his transactions not taxable under this Act. If any operator fails to keep such separate books or records, he shall be liable to tax at the rate designated in Section 3 hereof upon the entire proceeds from his business hotel. The Department may adopt rules that establish requirements, including record forms and formats, for records required to be kept and maintained by taxpayers. For purposes of this Section, "records" means all data maintained by the taxpayer, including data on paper, microfilm, microfiche or any type of machine-sensible data compilation.

(Source: P.A. 88-480.)

(35 ILCS 145/5) (from Ch. 120, par. 481b.35)

Sec. 5. Certificate of registration; retailers' occupation tax registration provisions apply. It shall be unlawful for any person to engage in the business as a hotel operator of renting, leasing or letting rooms in a hotel in this State without a certificate of registration from the Department.

All of the provisions of Sections 2a and 2b of the Retailers' Occupation Tax Act, in effect on the effective date of this Act, as subsequently amended, shall apply to persons in the business as hotel operators of renting, leasing or letting rooms in a hotel in this State, to the same extent as if such provisions were included herein.

(Source: Laws 1961, p. 1728.)

(35 ILCS 145/6) (from Ch. 120, par. 481b.36)

Sec. 6. Returns; allocation of proceeds Filing of returns and distribution of revenue. Except as provided hereinafter in this Section, on or before the last day of each calendar month, every person engaged as a hotel operator in the business of renting, leasing or letting rooms in a hotel in this State during the preceding calendar month shall file a return with the Department, stating:

1. The name of the operator;

2. His residence address and the address of his principal place of business and the address of the principal place of business (if that is a different address) from which he engages in the business as a hotel operator of renting, leasing or letting rooms in a hotel in this State (including, if required by the Department, the address of each hotel from which rental receipts were received);

3. Total amount of rental receipts received by him during the preceding calendar month from engaging in business as a hotel operator renting, leasing or letting rooms during such preceding calendar month;

4. Total amount of rental receipts received by him during the preceding calendar month from renting, leasing or letting rooms to permanent residents during such preceding calendar month;

5. Total amount of other exclusions from gross rental receipts allowed by this Act;

6. Gross rental receipts which were received by him during the preceding calendar month and upon the basis of which the tax is imposed;

7. The amount of tax due;

8. Credit for any reimbursement of tax paid by a re-renter of hotel rooms to hotel operators for rentals purchased for re-rental, as provided in Section 3-3 of this Act;

9. 8. Such other reasonable information as the Department may require.

If the operator's average monthly tax liability to the Department does not exceed $200, the Department may authorize his returns to be filed on a quarter annual basis, with the return for January, February and March of a given year being due by April 30 of such year; with the return for April, May and June of a given year being due by July 31 of such year; with the return for July, August and September of a given year being due by October 31 of such year, and with the return for October, November and December of a given year being due by January 31 of the following year.

If the operator's average monthly tax liability to the Department does not exceed $50, the Department may authorize his returns to be filed on an annual basis, with the return for a given year being due by January 31 of the following year.

Such quarter annual and annual returns, as to form and substance, shall be subject to the same requirements as monthly returns.

Notwithstanding any other provision in this Act concerning the time within which an operator may file his return, in the case of any operator who ceases to engage in a kind of business which makes him responsible for filing returns under this Act, such operator shall file a final return under this Act with the Department not more than 1 month after discontinuing such business.

Where the same person has more than 1 business registered with the Department under separate registrations under this Act, such person shall not file each return that is due as a single return covering all such registered businesses, but shall file separate returns for each such registered business.

In his return, the operator shall determine the value of any consideration other than money received by him in connection with engaging in business as a hotel operator the renting, leasing or letting of rooms in the course of his business and he shall include such value in his return. Such determination shall be subject to review and revision by the Department in the manner hereinafter provided for the correction of returns.

Where the operator is a corporation, the return filed on behalf of such corporation shall be signed by the president, vice-president, secretary or treasurer or by the properly accredited agent of such corporation.

The person filing the return herein provided for shall, at the time of filing such return, pay to the Department the amount of tax herein imposed. The operator filing the return under this Section shall, at the time of filing such return, pay to the Department the amount of tax imposed by this Act less a discount of 2.1% or $25 per calendar year, whichever is greater, which is allowed to reimburse the operator for the expenses incurred in keeping records, preparing and filing returns, remitting the tax and supplying data to the Department on request.

If any payment provided for in this Section exceeds the operator's liabilities under this Act, as shown on an original return, the Department may authorize the operator to credit such excess payment against liability subsequently to be remitted to the Department under this Act, in accordance with reasonable rules adopted by the Department. If the Department subsequently determines that all or any part of the credit taken was not actually due to the operator, the operator's discount shall be reduced by an amount equal to the difference between the discount as applied to the credit taken and that actually due, and that operator shall be liable for penalties and interest on such difference.

There shall be deposited into the Build Illinois Fund in the State Treasury for each State fiscal year 40% of the amount of total net revenue from the tax imposed by subsection (a) of Section 3. Of the remaining 60%: (i) $5,000,000 shall be deposited into the Illinois Sports Facilities Fund and credited to the Subsidy Account each fiscal year by making monthly deposits in the amount of 1/8 of $5,000,000 plus cumulative deficiencies in such deposits for prior months, and (ii) an amount equal to the then applicable Advance Amount shall be deposited into the Illinois Sports Facilities Fund and credited to the Advance Account each fiscal year by making monthly deposits in the amount of 1/8 of the then applicable Advance Amount plus any cumulative deficiencies in such deposits for prior months. (The deposits of the then applicable Advance Amount during each fiscal year shall be treated as advances of funds to the Illinois Sports Facilities Authority for its corporate purposes to the extent paid to the Authority or its trustee and shall be repaid into the General Revenue Fund in the State Treasury by the State Treasurer on behalf of the Authority pursuant to Section 19 of the Illinois Sports Facilities Authority Act, as amended. If in any fiscal year the full amount of the then applicable Advance Amount is not repaid into the General Revenue Fund, then the deficiency shall be paid from the amount in the Local Government Distributive Fund that would otherwise be allocated to the City of Chicago under the State Revenue Sharing Act.)

For purposes of the foregoing paragraph, the term "Advance Amount" means, for fiscal year 2002, $22,179,000, and for subsequent fiscal years through fiscal year 2033, 105.615% of the Advance Amount for the immediately preceding fiscal year, rounded up to the nearest $1,000.

Of the remaining 60% of the amount of total net revenue beginning on August 1, 2011 through June 30, 2023, from the tax imposed by subsection (a) of Section 3 after all required deposits into the Illinois Sports Facilities Fund, an amount equal to 8% of the net revenue realized from this Act during the preceding month shall be deposited as follows: 18% of such amount shall be deposited into the Chicago Travel Industry Promotion Fund for the purposes described in subsection (n) of Section 5 of the Metropolitan Pier and Exposition Authority Act and the remaining 82% of such amount shall be deposited into the Local Tourism Fund each month for purposes authorized by Section 605-705 of the Department of Commerce and Economic Opportunity Law. Beginning on August 1, 2011 and through June 30, 2023, an amount equal to 4.5% of the net revenue realized from this Act during the preceding month shall be deposited as follows: 55% of such amount shall be deposited into the Chicago Travel Industry Promotion Fund for the purposes described in subsection (n) of Section 5 of the Metropolitan Pier and Exposition Authority Act and the remaining 45% of such amount deposited into the International Tourism Fund for the purposes authorized in Section 605-707 of the Department of Commerce and Economic Opportunity Law. "Net revenue realized" means the revenue collected by the State under this Act less the amount paid out as refunds to taxpayers for overpayment of liability under this Act.

Beginning on July 1, 2023, of the remaining 60% of the amount of total net revenue realized from the tax imposed under subsection (a) of Section 3, after all required deposits into the Illinois Sports Facilities Fund:

(1) an amount equal to 8% of the net revenue realized under this Act for the preceding month shall be deposited as follows: 82% to the Local Tourism Fund and 18% to the Chicago Travel Industry Promotion Fund; and

(2) an amount equal to 4.5% of the net revenue realized under this Act for the preceding month shall be deposited as follows: 55% to the Chicago Travel Industry Promotion Fund and 45% to the International Tourism Fund.

After making all these deposits, any remaining net revenue realized from the tax imposed under subsection (a) of Section 3 shall be deposited into the Tourism Promotion Fund in the State Treasury. All moneys received by the Department from the additional tax imposed under subsection (b) of Section 3 shall be deposited into the Build Illinois Fund in the State Treasury.

The Department may, upon separate written notice to a taxpayer, require the taxpayer to prepare and file with the Department on a form prescribed by the Department within not less than 60 days after receipt of the notice an annual information return for the tax year specified in the notice. Such annual return to the Department shall include a statement of gross receipts as shown by the operator's last State income tax return. If the total receipts of the business as reported in the State income tax return do not agree with the gross receipts reported to the Department for the same period, the operator shall attach to his annual information return a schedule showing a reconciliation of the 2 amounts and the reasons for the difference. The operator's annual information return to the Department shall also disclose payroll information of the operator's business during the year covered by such return and any additional reasonable information which the Department deems would be helpful in determining the accuracy of the monthly, quarterly or annual tax returns by such operator as hereinbefore provided for in this Section.

If the annual information return required by this Section is not filed when and as required the taxpayer shall be liable for a penalty in an amount determined in accordance with Section 3-4 of the Uniform Penalty and Interest Act until such return is filed as required, the penalty to be assessed and collected in the same manner as any other penalty provided for in this Act.

The chief executive officer, proprietor, owner or highest ranking manager shall sign the annual return to certify the accuracy of the information contained therein. Any person who willfully signs the annual return containing false or inaccurate information shall be guilty of perjury and punished accordingly. The annual return form prescribed by the Department shall include a warning that the person signing the return may be liable for perjury.

The foregoing portion of this Section concerning the filing of an annual information return shall not apply to an operator who is not required to file an income tax return with the United States Government.

(Source: P.A. 102-16, eff. 6-17-21; 103-8, eff. 6-7-23.)

Section 999. Effective date. This Act takes effect upon becoming law.