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1 | AN ACT concerning cigarettes and tobacco products.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||
5 | Cigarette Delivery Sales Reporting Act. | ||||||||||||||||||||||||
6 | Section 5. Legislative findings and intent. The General | ||||||||||||||||||||||||
7 | Assembly finds that consumers are using the Internet to | ||||||||||||||||||||||||
8 | purchase cigarettes to avoid the taxes imposed by the State of | ||||||||||||||||||||||||
9 | Illinois on sale and use of cigarettes. The General Assembly | ||||||||||||||||||||||||
10 | further finds that because online sales have sharply risen over | ||||||||||||||||||||||||
11 | the years there is a large and increasing loss of revenue to | ||||||||||||||||||||||||
12 | the State caused by the evasion of sales and use taxes on | ||||||||||||||||||||||||
13 | cigarettes shipped in interstate commerce to Illinois | ||||||||||||||||||||||||
14 | customers. The General Assembly finds that to help identify | ||||||||||||||||||||||||
15 | purchasers of cigarettes from out-of-state sellers, the | ||||||||||||||||||||||||
16 | Department of Revenue uses information required to be provided | ||||||||||||||||||||||||
17 | by the federal Jenkins Act (15 U.S.C. ยงยง375-377) in order to | ||||||||||||||||||||||||
18 | bill consumers for the taxes due. The General Assembly further | ||||||||||||||||||||||||
19 | finds that many cigarette sellers do not comply with the | ||||||||||||||||||||||||
20 | provisions of the Jenkins Act and that many other states, in | ||||||||||||||||||||||||
21 | order to address this problem, have enacted their own reporting | ||||||||||||||||||||||||
22 | laws intended to prevent further tax avoidance. Therefore, it | ||||||||||||||||||||||||
23 | is intent of the General Assembly in enacting this Act to |
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1 | facilitate the collection of all applicable State sales and use | ||||||
2 | taxes on cigarettes sold to residents of this State over the | ||||||
3 | Internet or by mail order by establishing a reporting | ||||||
4 | requirement for out-of-state cigarette sellers and penalties | ||||||
5 | for those persons who violate this Act. | ||||||
6 | Section 10. Definitions. As used in this Act, unless the | ||||||
7 | context otherwise requires: | ||||||
8 | "Cigarette" means any roll for smoking made wholly or in | ||||||
9 | part of tobacco, irrespective of size or shape and whether or | ||||||
10 | not the tobacco is flavored, adulterated, or mixed with any | ||||||
11 | other ingredient, and the wrapper or cover of which is made of | ||||||
12 | paper or any other substance or material except whole tobacco | ||||||
13 | leaf.
| ||||||
14 | "Consumer" means an individual who is not a licensed | ||||||
15 | cigarette distributor or a licensed cigarette retailer. | ||||||
16 | "Delivery sale" means a sale of cigarettes to a consumer in | ||||||
17 | this State in which: | ||||||
18 | (1) the purchaser submits the order for the sale by | ||||||
19 | means of a telephone or other method of voice transmission, | ||||||
20 | a delivery service, or the Internet or other online | ||||||
21 | service; or | ||||||
22 | (2) the cigarettes are delivered by a delivery service. | ||||||
23 | "Delivery service" means any person that is engaged in the | ||||||
24 | commercial delivery of letters, packages, or other containers. | ||||||
25 | "Department" means the Department of Revenue. |
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| |||||||
1 | "Person" means any natural individual, firm, partnership, | ||||||
2 | association, joint stock company, joint adventure, public or | ||||||
3 | private corporation however formed, limited liability company, | ||||||
4 | or a receiver, executor, administrator, trustee, guardian, or | ||||||
5 | other representative appointed by order of any court. | ||||||
6 | "Person accepting a purchase order for a delivery sale" | ||||||
7 | means a person who fills a cigarette order given by a consumer | ||||||
8 | and processes the order for mail, shipping or other delivery, | ||||||
9 | or who contracts with another party to provide delivery service | ||||||
10 | to the purchaser. | ||||||
11 | "Purchase order" means a written or electronic document | ||||||
12 | authorizing a seller to provide cigarettes. | ||||||
13 | "Retail value" means the market price of the cigarettes | ||||||
14 | plus all applicable taxes at the location where the cigarettes | ||||||
15 | were mailed, shipped, or delivered. | ||||||
16 | Section 15. Delivery sales reporting requirements. | ||||||
17 | (a) Not later than the 15th day of each calendar month, | ||||||
18 | each person that has made a delivery sale of delivered, mailed, | ||||||
19 | or shipped cigarettes during the previous calendar month, or | ||||||
20 | contracted with another party for delivery service in | ||||||
21 | connection with a delivery sale made during the previous | ||||||
22 | calendar month, shall file a report with the Department. The | ||||||
23 | report shall contain the following information: | ||||||
24 | (1) the name, trade name, and address of the principal | ||||||
25 | place of business of the seller and any other place of |
| |||||||
| |||||||
1 | business of the seller; | ||||||
2 | (2) the name and address of the consumer to whom the | ||||||
3 | delivery sale was made;
| ||||||
4 | (3) the brand or brands of cigarettes that were sold in | ||||||
5 | the delivery sale; | ||||||
6 | (4) the quantity of cigarettes that were sold in the | ||||||
7 | delivery sale; and | ||||||
8 | (5) such other information as the Department may | ||||||
9 | require by rule. | ||||||
10 | (b) A person that satisfies the requirements of 15 U.S.C. | ||||||
11 | 376 is deemed to have met the requirements of this Section. | ||||||
12 | (c) The Department may adopt rules to authorize the | ||||||
13 | electronic filing of the report required under this Section. | ||||||
14 | Section 20. Penalties; seizure and forfeiture; hearings. | ||||||
15 | (a) The Department shall impose the following penalties for | ||||||
16 | each unreported sale of cigarettes: | ||||||
17 | (1) The first time a person violates Section 15 of | ||||||
18 | this Act, the person shall be subject to a civil penalty of | ||||||
19 | $1,000 or five times the retail value of the cigarettes | ||||||
20 | involved in the violation, whichever is greater. | ||||||
21 |
(2) In the case of a second or subsequent violation of | ||||||
22 | Section 15 of this Act, the person shall be subject to a | ||||||
23 | civil penalty of $5,000 or five times the retail value of | ||||||
24 | the cigarettes involved in the violation, whichever is | ||||||
25 | greater. |
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1 | (b) The penalties prescribed under this Section are in | ||||||
2 | addition to and not in lieu of any other penalty applicable | ||||||
3 | under the laws of this State. | ||||||
4 | (c) Any cigarettes sold or attempted to be sold in a | ||||||
5 | delivery sale that violates this Act may be seized by the | ||||||
6 | Department and are subject to forfeiture. | ||||||
7 | (d) Any person aggrieved by a Department decision may, | ||||||
8 | within 30 days after notice of that decision, protest in | ||||||
9 | writing and request a hearing. The Department shall give notice | ||||||
10 | to the person of the time and place for the hearing and shall | ||||||
11 | hold a hearing before it issues a final administrative | ||||||
12 | decision. In the absence of a protest and request for a hearing | ||||||
13 | within 30 days, the Department's decision shall become final | ||||||
14 | without any further determination being made or notice given. | ||||||
15 | Section 25. Enforcement. All enforcement proceedings under | ||||||
16 | this Act shall be instituted by the Attorney General at the | ||||||
17 | request of the Department to require compliance with this Act, | ||||||
18 | to recover civil penalties authorized under Section 20 of this | ||||||
19 | Act, and to seek any other remedy as provided by law. | ||||||
20 | Section 30. Rules. The Department may adopt rules to | ||||||
21 | implement, administer and enforce this Act. | ||||||
22 | Section 905. The Department of Revenue Law of the
Civil | ||||||
23 | Administrative Code of Illinois is amended by changing Section |
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| |||||||
1 | 2505-380 as follows:
| ||||||
2 | (20 ILCS 2505/2505-380) (was 20 ILCS 2505/39b47)
| ||||||
3 | Sec. 2505-380.
Revocation of or refusal to issue a | ||||||
4 | certificate of
registration, permit, or license. The | ||||||
5 | Department has the power to
refuse to issue or reissue or, | ||||||
6 | after notice and an opportunity for
a hearing, to revoke a | ||||||
7 | certificate of registration, permit, or license
issued or | ||||||
8 | authorized to be issued by the Department if the applicant for
| ||||||
9 | or holder of the certificate of registration, permit, or
| ||||||
10 | license fails to
file a return, or to pay the tax, fee, | ||||||
11 | penalty, or interest shown in a
filed
return, or to pay any | ||||||
12 | final assessment of tax, fee,
penalty, or interest, as required | ||||||
13 | by the tax or fee Act under which the
certificate
of | ||||||
14 | registration, permit, or license is required or any other tax | ||||||
15 | or fee Act
administered
by the Department.
| ||||||
16 | The procedure for notice and hearing prior to revocation | ||||||
17 | shall be as
provided under the Act pursuant to which the | ||||||
18 | certificate of registration,
permit, or license was issued.
| ||||||
19 | (Source: P.A. 91-239, eff. 1-1-00.)
| ||||||
20 | Section 910. The Cigarette Tax Act is amended by changing | ||||||
21 | Sections 1, 3-10, 6, 7, 8, 10, 11, 18b, 23, and 24 and by adding | ||||||
22 | Sections 4e, 4f and 26a as follows:
| ||||||
23 | (35 ILCS 130/1) (from Ch. 120, par. 453.1)
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1 | Sec. 1. For the purposes of this Act:
| ||||||
2 | "Brand Style" means a variety of cigarettes distinguished | ||||||
3 | by the tobacco used, tar and nicotine content, flavoring used, | ||||||
4 | size of the cigarette, filtration on the cigarette or | ||||||
5 | packaging. | ||||||
6 | "Cigarette", means any
roll for smoking made wholly or in | ||||||
7 | part of tobacco irrespective of size
or shape and whether or | ||||||
8 | not such tobacco is flavored, adulterated or
mixed with any | ||||||
9 | other ingredient, and the wrapper or cover of which is
made of | ||||||
10 | paper or any other substance or material except tobacco.
| ||||||
11 | "Contraband cigarettes" means: | ||||||
12 | (a) cigarettes that do not bear a required tax stamp | ||||||
13 | under this Act; | ||||||
14 | (b) cigarettes for which any required federal taxes | ||||||
15 | have not been paid; | ||||||
16 | (c) cigarettes that bear a counterfeit tax stamp; | ||||||
17 | (d) cigarettes that are manufactured, fabricated, | ||||||
18 | assembled, processed, packaged, or labeled by any person | ||||||
19 | other than (i) the owner of the trademark rights in the | ||||||
20 | cigarette brand or (ii) a person that is directly or | ||||||
21 | indirectly authorized by such owner; | ||||||
22 | (e) cigarettes imported into the United States, or | ||||||
23 | otherwise distributed, in violation of the federal | ||||||
24 | Imported Cigarette Compliance Act of 2000 (Title IV of | ||||||
25 | Public Law 106-476); | ||||||
26 | (f) cigarettes that have false manufacturing labels; |
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| |||||||
1 | (g) cigarettes identified in Section 3-10(a)(1) of | ||||||
2 | this Act; or | ||||||
3 | (h) cigarettes that are improperly tax stamped, | ||||||
4 | including cigarettes that bear a tax stamp of another state | ||||||
5 | or taxing jurisdiction. | ||||||
6 | "Person" means any natural individual, firm, partnership, | ||||||
7 | association, joint
stock company, joint adventure, public or | ||||||
8 | private corporation, however formed,
limited liability | ||||||
9 | company, or a receiver, executor, administrator, trustee,
| ||||||
10 | guardian or other representative appointed by order of any | ||||||
11 | court.
| ||||||
12 | "Prior Continuous Compliance Taxpayer" means any person | ||||||
13 | who is licensed
under this Act and who, having been a licensee | ||||||
14 | for a continuous period of 5
years, is determined by the | ||||||
15 | Department not to have been either delinquent
or deficient in | ||||||
16 | the payment of tax liability during that period or
otherwise in | ||||||
17 | violation of this Act. Also, any taxpayer who has, as
verified | ||||||
18 | by the Department, continuously complied with the condition of | ||||||
19 | his
bond or other security under provisions of this Act for a | ||||||
20 | period of 5
consecutive years shall be considered to be a | ||||||
21 | "Prior continuous compliance
taxpayer". In calculating the | ||||||
22 | consecutive period of time described herein
for qualification | ||||||
23 | as a "prior continuous compliance taxpayer", a
consecutive | ||||||
24 | period of time of qualifying compliance immediately prior to
| ||||||
25 | the effective date of this amendatory Act of 1987 shall be | ||||||
26 | credited to any
licensee who became licensed on or before the |
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| |||||||
1 | effective date of this
amendatory Act of 1987.
| ||||||
2 | "Department" means the Department of Revenue.
| ||||||
3 | "Sale" means any transfer, exchange or barter in any manner | ||||||
4 | or by any
means whatsoever for a consideration, and includes | ||||||
5 | and means all sales
made by any person.
| ||||||
6 | "Original Package" means the individual packet, box or | ||||||
7 | other container
whatsoever used to contain and to convey | ||||||
8 | cigarettes to the consumer upon which a tax stamp or other | ||||||
9 | indicia of tax payment is or should be affixed .
| ||||||
10 | "Distributor" means any and each of the following:
| ||||||
11 | (1) Any person engaged in the business of selling | ||||||
12 | cigarettes in this
State who brings or causes to be brought | ||||||
13 | into this State from without
this State any original packages | ||||||
14 | of cigarettes, on which original
packages there is no | ||||||
15 | authorized evidence underneath a sealed transparent
wrapper | ||||||
16 | showing that the tax liability imposed by this Act has been | ||||||
17 | paid
or assumed by the out-of-State seller of such cigarettes, | ||||||
18 | for sale or
other disposition in the course of such business.
| ||||||
19 | (2) Any person who makes, manufactures or fabricates | ||||||
20 | cigarettes in this
State for sale in this State, except a | ||||||
21 | person who makes, manufactures
or fabricates cigarettes as a | ||||||
22 | part of a correctional industries program
for sale to residents | ||||||
23 | incarcerated in penal institutions or resident patients
of a | ||||||
24 | State-operated mental health facility.
| ||||||
25 | (3) Any person who makes, manufactures or fabricates | ||||||
26 | cigarettes
outside this State, which cigarettes are placed in |
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| |||||||
1 | original packages
contained in sealed transparent wrappers, | ||||||
2 | for delivery or shipment into
this State, and who elects to | ||||||
3 | qualify and is accepted by the Department
as a distributor | ||||||
4 | under Section 4b of this Act.
| ||||||
5 | "Distributor" does not include any person with respect to a | ||||||
6 | sale of cigarettes to a purchaser for use or consumption, and | ||||||
7 | not for resale. | ||||||
8 | "Place of business" shall mean and include any place where | ||||||
9 | cigarettes
are sold or where cigarettes are manufactured, | ||||||
10 | stored or kept for the
purpose of sale or consumption, | ||||||
11 | including any vessel, vehicle, airplane,
train or vending | ||||||
12 | machine.
| ||||||
13 | "Business" means any trade, occupation, activity or | ||||||
14 | enterprise
engaged in for the purpose of selling cigarettes in | ||||||
15 | this State.
| ||||||
16 | "Retailer" means any person who engages in the making of | ||||||
17 | transfers of
the ownership of, or title to, cigarettes to a | ||||||
18 | purchaser for use or
consumption and not for resale in any | ||||||
19 | form, for a valuable consideration. "Retailer" does not include | ||||||
20 | a person:
| ||||||
21 | (1) who transfers to residents incarcerated in penal | ||||||
22 | institutions
or resident patients of a State-operated | ||||||
23 | mental health facility ownership
of cigarettes made, | ||||||
24 | manufactured, or fabricated as part of a correctional
| ||||||
25 | industries program; or | ||||||
26 | (2) who transfers cigarettes to a not-for-profit |
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| |||||||
1 | research institution that conducts tests concerning the | ||||||
2 | health effects of tobacco products and who does not offer | ||||||
3 | the cigarettes for resale.
| ||||||
4 | "Retailer" shall be construed to include any person who | ||||||
5 | engages in
the making of transfers of the ownership of, or | ||||||
6 | title to, cigarettes to
a purchaser, for use or consumption by | ||||||
7 | any other person to whom such
purchaser may transfer the | ||||||
8 | cigarettes without a valuable consideration,
except a person | ||||||
9 | who transfers to residents incarcerated in penal institutions
| ||||||
10 | or resident patients of a State-operated mental health facility | ||||||
11 | ownership
of cigarettes made, manufactured or fabricated as | ||||||
12 | part of a correctional
industries program.
| ||||||
13 | "Stamp" or "stamps" mean the indicia required to be affixed | ||||||
14 | on a pack of cigarettes that evidence payment of the tax on | ||||||
15 | cigarettes under Section 2 of this Act. | ||||||
16 | "Related party" means any person that is associated with | ||||||
17 | any other person because he or she: | ||||||
18 | (a) is an officer or director of a business; or | ||||||
19 | (b) is legally recognized as a partner in business. | ||||||
20 | "Unstamped package of cigarettes" means a package of | ||||||
21 | cigarettes that does not bear a tax stamp as required by this | ||||||
22 | Act, including a package of cigarettes that bears a tax
stamp | ||||||
23 | of another state or taxing jurisdiction, a package of | ||||||
24 | cigarettes that bears a counterfeit tax stamp, and a stamped or | ||||||
25 | unstamped package of cigarettes that is marked "Not for sale in | ||||||
26 | the United States". |
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| |||||||
1 | (Source: P.A. 95-462, eff. 8-27-07; 95-1053, eff. 1-1-10; | ||||||
2 | 96-782, eff. 1-1-10.)
| ||||||
3 | (35 ILCS 130/3-10)
| ||||||
4 | Sec. 3-10. Cigarette enforcement.
| ||||||
5 | (a) Prohibitions. It is unlawful for any person:
| ||||||
6 | (1) to sell or distribute in this State; to acquire, | ||||||
7 | hold, own, possess,
or
transport, for sale or distribution | ||||||
8 | in this State; or to import, or cause to be
imported into | ||||||
9 | this State for sale or distribution in this State:
| ||||||
10 | (A) any cigarettes the package of which:
| ||||||
11 | (i) bears any statement, label, stamp, | ||||||
12 | sticker, or notice
indicating that the | ||||||
13 | manufacturer did not intend the cigarettes to be
| ||||||
14 | sold, distributed, or used in the United States, | ||||||
15 | including but not
limited to labels stating "For | ||||||
16 | Export Only", "U.S. Tax Exempt",
"For Use Outside | ||||||
17 | U.S.", or similar wording; or
| ||||||
18 | (ii) does not comply with:
| ||||||
19 | (aa) all requirements imposed by or | ||||||
20 | pursuant to
federal law regarding warnings and | ||||||
21 | other information on
packages of cigarettes | ||||||
22 | manufactured, packaged, or imported
for sale, | ||||||
23 | distribution, or use in the United States, | ||||||
24 | including
but not limited to the precise | ||||||
25 | warning labels specified in the
federal |
| |||||||
| |||||||
1 | Cigarette Labeling and Advertising Act, 15 | ||||||
2 | U.S.C.
1333; and
| ||||||
3 | (bb) all federal trademark and copyright | ||||||
4 | laws;
| ||||||
5 | (B) any cigarettes imported into the United States | ||||||
6 | in violation of
26 U.S.C. 5754 or any other federal | ||||||
7 | law, or implementing federal
regulations;
| ||||||
8 | (C) any cigarettes that such person otherwise | ||||||
9 | knows or has reason
to know the manufacturer did not | ||||||
10 | intend to be sold, distributed, or used in
the United | ||||||
11 | States; or
| ||||||
12 | (D) any cigarettes for which there has not been | ||||||
13 | submitted to the
Secretary of the U.S. Department of | ||||||
14 | Health and Human Services the list or
lists of the | ||||||
15 | ingredients added to tobacco in the manufacture of the
| ||||||
16 | cigarettes required by the federal Cigarette Labeling | ||||||
17 | and Advertising Act,
15 U.S.C. 1335a;
| ||||||
18 | (2) to alter the package of any cigarettes, prior to | ||||||
19 | sale or distribution
to
the
ultimate consumer, so as to | ||||||
20 | remove, conceal, or obscure:
| ||||||
21 | (A) any statement, label, stamp, sticker, or | ||||||
22 | notice described in
subdivision (a)(1)(A)(i) of this | ||||||
23 | Section;
| ||||||
24 | (B) any health warning that is not specified in, or | ||||||
25 | does not conform
with the requirements of, the federal | ||||||
26 | Cigarette Labeling and Advertising
Act, 15 U.S.C. |
| |||||||
| |||||||
1 | 1333; or
| ||||||
2 | (3) to affix any stamp required pursuant to this Act to | ||||||
3 | the package of any
cigarettes described in subdivision | ||||||
4 | (a)(1) of this Section or altered in
violation of
| ||||||
5 | subdivision (a)(2).
| ||||||
6 | (b) Documentation. On the first business day of each month, | ||||||
7 | each person
licensed
to affix the State tax stamp to cigarettes | ||||||
8 | shall file with the Department, for
all cigarettes
imported | ||||||
9 | into the United States to which the person has affixed the tax | ||||||
10 | stamp
in the
preceding month:
| ||||||
11 | (1) a copy of:
| ||||||
12 | (A) the permit issued pursuant to the Internal | ||||||
13 | Revenue Code, 26
U.S.C. 5713, to the person importing | ||||||
14 | the cigarettes into the United States
allowing the | ||||||
15 | person to import the cigarettes; and
| ||||||
16 | (B) the customs form containing, with respect to | ||||||
17 | the cigarettes, the
internal revenue tax information | ||||||
18 | required by the U.S. Bureau of Alcohol,
Tobacco and | ||||||
19 | Firearms;
| ||||||
20 | (2) a statement, signed by the person under penalty of | ||||||
21 | perjury, which shall
be treated as confidential by the | ||||||
22 | Department and exempt from disclosure under
the Freedom of | ||||||
23 | Information Act, identifying the brand and brand styles of | ||||||
24 | all such
cigarettes, the quantity of each brand style of | ||||||
25 | such cigarettes, the supplier of such
cigarettes, and the | ||||||
26 | person or persons, if any, to whom such cigarettes have |
| |||||||
| |||||||
1 | been
conveyed for resale; and a separate statement, signed | ||||||
2 | by the individual under
penalty of perjury, which shall not | ||||||
3 | be treated as confidential or exempt from
disclosure, | ||||||
4 | separately identifying the brands and brand styles of such
| ||||||
5 | cigarettes;
and
| ||||||
6 | (3) a statement, signed by an officer of the | ||||||
7 | manufacturer or importer
under penalty of perjury, | ||||||
8 | certifying that the manufacturer or importer has
complied | ||||||
9 | with:
| ||||||
10 | (A) the package health warning and ingredient | ||||||
11 | reporting
requirements of the federal Cigarette | ||||||
12 | Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | ||||||
13 | with respect to such cigarettes; and
| ||||||
14 | (B) the provisions of Exhibit T of the Master | ||||||
15 | Settlement Agreement
entered in
the case of People of | ||||||
16 | the State of Illinois v. Philip Morris, et al. (Circuit
| ||||||
17 | Court of Cook County, No. 96-L13146), including a | ||||||
18 | statement
indicating whether the manufacturer is, or | ||||||
19 | is not, a participating tobacco
manufacturer within | ||||||
20 | the meaning of Exhibit T.
| ||||||
21 | (b-5) Criminal penalties. A person who violates subsection | ||||||
22 | (a) or subsection (b) of this Section shall be guilty of a | ||||||
23 | Class 4 felony. | ||||||
24 | (c) Administrative sanctions.
| ||||||
25 | (1) Upon finding that a distributor or retailer person | ||||||
26 | has committed any of the acts
prohibited by
subsection
(a), |
| |||||||
| |||||||
1 | knowing or having reason to know that he or she has done | ||||||
2 | so, or has failed
to comply
with any requirement of | ||||||
3 | subsection (b), the Department
may revoke or suspend the | ||||||
4 | license or licenses of that any
distributor or retailer | ||||||
5 | pursuant to the procedures set forth in Section 6 and | ||||||
6 | impose on the
distributor or retailer , or on the person, a | ||||||
7 | civil penalty in an amount not to exceed the greater of | ||||||
8 | 500% of
the
retail value of the cigarettes involved or | ||||||
9 | $5,000.
| ||||||
10 | (2) Cigarettes that are acquired, held, owned, | ||||||
11 | possessed, transported in,
imported into, or sold or | ||||||
12 | distributed in this State in violation of this
Section | ||||||
13 | shall be deemed contraband under this Act and are subject | ||||||
14 | to seizure
and forfeiture as provided in this Act, and all | ||||||
15 | such cigarettes seized and
forfeited shall be destroyed or | ||||||
16 | maintained and used in an undercover capacity. Such | ||||||
17 | cigarettes shall be deemed contraband
whether the | ||||||
18 | violation of this Section is knowing or otherwise.
| ||||||
19 | (d) Unfair trade practices. In addition to any other | ||||||
20 | penalties provided for in this Act, a violation of subsection | ||||||
21 | (a) or subsection
(b) of this Section shall constitute an | ||||||
22 | unlawful practice as provided in the
Consumer Fraud and | ||||||
23 | Deceptive Business Practices Act.
| ||||||
24 | (d-1) Retailers shall not be liable under subsections | ||||||
25 | (c)(1) and (d) of this Section for unknowingly possessing, | ||||||
26 | selling, or distributing to consumers or users cigarettes |
| |||||||
| |||||||
1 | identified in subsection (a)(1) of this Section if the | ||||||
2 | cigarettes possessed, sold, or distributed by the retailer were | ||||||
3 | obtained from a distributor licensed under this Act. | ||||||
4 | (e) Unfair cigarette sales. For purposes of the Trademark | ||||||
5 | Registration and
Protection Act and the Counterfeit Trademark | ||||||
6 | Act, cigarettes imported or
reimported into the United States | ||||||
7 | for sale or distribution under any trade
name, trade dress, or | ||||||
8 | trademark that is the same as, or is confusingly similar
to, | ||||||
9 | any trade name, trade dress, or trademark used for cigarettes | ||||||
10 | manufactured
in the United States for sale or distribution in | ||||||
11 | the United States shall be
presumed to have been purchased | ||||||
12 | outside of the ordinary channels of trade.
| ||||||
13 | (f) General provisions.
| ||||||
14 | (1) This Section shall be enforced by the Department; | ||||||
15 | provided that, at
the request of the Director of Revenue or | ||||||
16 | the Director's duly authorized agent,
the State police and | ||||||
17 | all local police authorities shall enforce the provisions
| ||||||
18 | of this Section. The Attorney General has concurrent power | ||||||
19 | with the State's
Attorney of any county to enforce this | ||||||
20 | Section.
| ||||||
21 | (2) For the purpose of enforcing this Section, the | ||||||
22 | Director of Revenue and
any agency to which the Director | ||||||
23 | has delegated enforcement
responsibility pursuant to | ||||||
24 | subdivision (f)(1) may request information from any
State | ||||||
25 | or local agency and may share information with and request | ||||||
26 | information
from any federal agency and any agency of any |
| |||||||
| |||||||
1 | other state or any local agency
of any other state.
| ||||||
2 | (3) In addition to any other remedy provided by law, | ||||||
3 | including
enforcement as provided in subdivision (a)(1), | ||||||
4 | any person may bring an action
for appropriate injunctive | ||||||
5 | or other equitable relief for a violation of this
Section; | ||||||
6 | actual damages, if any, sustained by reason of the | ||||||
7 | violation; and, as
determined by the court, interest on the | ||||||
8 | damages from the date of the
complaint, taxable costs, and | ||||||
9 | reasonable attorney's fees. If the trier of fact
finds that | ||||||
10 | the violation is flagrant, it may increase recovery to an | ||||||
11 | amount not
in excess of 3 times the actual damages | ||||||
12 | sustained by reason of the violation.
| ||||||
13 | (g) Definitions. As used in this Section:
| ||||||
14 | "Importer" means that term as defined in 26 U.S.C. 5702(1).
| ||||||
15 | "Package" means that term as defined in 15 U.S.C. 1332(4).
| ||||||
16 | (h) Applicability.
| ||||||
17 | (1) This Section does not apply to:
| ||||||
18 | (A) cigarettes allowed to be imported or brought | ||||||
19 | into the United
States for personal use; and
| ||||||
20 | (B) cigarettes sold or intended to be sold as | ||||||
21 | duty-free merchandise
by a duty-free sales enterprise | ||||||
22 | in accordance with the provisions of 19
U.S.C. 1555(b) | ||||||
23 | and any implementing regulations; except that this | ||||||
24 | Section
shall apply to any such cigarettes that are | ||||||
25 | brought back into the customs
territory for resale | ||||||
26 | within the customs territory.
|
| |||||||
| |||||||
1 | (2) The penalties provided in this Section are in | ||||||
2 | addition to any other
penalties imposed under other | ||||||
3 | provision of law.
| ||||||
4 | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
| ||||||
5 | (35 ILCS 130/4e new) | ||||||
6 | Sec. 4e. Retailer's License. | ||||||
7 | (a) Commencing January 1, 2011, no person may engage in | ||||||
8 | business as a retailer of cigarettes in this State without | ||||||
9 | first having obtained a retailer's license from the Department. | ||||||
10 | Application for a license shall be made to the Department in | ||||||
11 | form as furnished and prescribed by the Department. Each | ||||||
12 | applicant for a license under this Section shall furnish to the | ||||||
13 | Department on the form signed and verified by the applicant the | ||||||
14 | following information: | ||||||
15 | (1) the name and address of the applicant; | ||||||
16 | (2) the address of the location at which the applicant | ||||||
17 | proposes to engage in business as a retailer of cigarettes | ||||||
18 | in this State; and | ||||||
19 | (3) such other additional information as the | ||||||
20 | Department may lawfully require by its rules and | ||||||
21 | regulations. | ||||||
22 | (b) The annual license fee payable to the Department for | ||||||
23 | each retailer's license shall be $250. The fee will be placed | ||||||
24 | into the Tax Compliance and Administration Fund and used | ||||||
25 | towards the cost of retail inspections. Each applicant for a |
| |||||||
| |||||||
1 | license shall pay that fee to the Department at the time of | ||||||
2 | submitting the application for a license to the Department. | ||||||
3 | (c) The Department may, in its discretion, require an | ||||||
4 | applicant who is required to procure a retailer's license to | ||||||
5 | file with the application a joint and several bond. If | ||||||
6 | required, such bond shall be executed to the Department of | ||||||
7 | Revenue, with good and sufficient surety or sureties residing | ||||||
8 | or licensed to do business within the State of Illinois, in an | ||||||
9 | amount of not less than $2,500, conditioned upon the true and | ||||||
10 | faithful compliance by the licensee with all of the provisions | ||||||
11 | of this Act. If required, such bond, or a reissue thereof, or a | ||||||
12 | substitute therefor, shall be kept in effect during the entire | ||||||
13 | period covered by the license. A separate application for | ||||||
14 | license shall be made, a separate annual license fee paid, and, | ||||||
15 | if required, a separate bond filed, for each place of business | ||||||
16 | at which a person who is required to procure a retailer's | ||||||
17 | license under this Section proposes to engage in business as a | ||||||
18 | retailer in Illinois under this Act. | ||||||
19 | The following are ineligible to receive a retailer's | ||||||
20 | license under this Act: | ||||||
21 | (1) a person who is not of good character and | ||||||
22 | reputation in the community in which he resides; | ||||||
23 | (2) a person who has been convicted of a felony under | ||||||
24 | any federal or State law, if the Department, after | ||||||
25 | investigation and a hearing, if requested by the applicant, | ||||||
26 | determines that the person has not been sufficiently |
| |||||||
| |||||||
1 | rehabilitated to warrant the public trust; | ||||||
2 | (3) a corporation, if any officer, manager, or director | ||||||
3 | thereof, or any stockholder or stockholders owning in the | ||||||
4 | aggregate more than 5% of the stock of the corporation, | ||||||
5 | would not be eligible to receive a license under this Act | ||||||
6 | for any reason; | ||||||
7 | (4) a person who possesses a distributor's license | ||||||
8 | under Section 4 of this Act or a distributor's license | ||||||
9 | under Section 4b of this Act. | ||||||
10 | (d) The Department, upon receipt of an application, license | ||||||
11 | fee, and bond in proper form from a person who is eligible to | ||||||
12 | receive a retailer's license under this Act, shall issue to the | ||||||
13 | applicant a license in form as prescribed by the Department, | ||||||
14 | which license shall permit the applicant to engage in business | ||||||
15 | as a retailer under this Act at the place shown in the | ||||||
16 | application. All licenses issued by the Department under this | ||||||
17 | Section shall be valid for not to exceed one year after | ||||||
18 | issuance unless sooner revoked, canceled or suspended as | ||||||
19 | provided in this Act. No license issued under this Section is | ||||||
20 | transferable or assignable. The license shall be conspicuously | ||||||
21 | displayed in the place of business conducted by the licensee in | ||||||
22 | Illinois under the license. The Department shall not issue a | ||||||
23 | license to a retailer unless the retailer is also validly | ||||||
24 | registered under the Retailers' Occupation Tax Act. A person | ||||||
25 | who obtains a license as a retailer and then ceases to do | ||||||
26 | business as specified in the license, or who does not commence |
| |||||||
| |||||||
1 | business, or who obtains a distributor's license, or whose | ||||||
2 | license is suspended or revoked, shall immediately surrender | ||||||
3 | the license to the Department. | ||||||
4 | (e) Any person aggrieved by any decision of the Department | ||||||
5 | under this subsection may, within 20 days after notice of the | ||||||
6 | decision, protest and request a hearing. Upon receiving a | ||||||
7 | request for a hearing, the Department shall give notice to the | ||||||
8 | person requesting the hearing of the time and place fixed for | ||||||
9 | the hearing and shall hold a hearing in conformity with the | ||||||
10 | provisions of this Act and then issue its final administrative | ||||||
11 | decision in the matter to that person. In the absence of a | ||||||
12 | protest and request for a hearing within 20 days, the | ||||||
13 | Department's decision shall become final without any further | ||||||
14 | determination being made or notice given. | ||||||
15 | (35 ILCS 130/4f new) | ||||||
16 | Sec. 4f. Purchases of Cigarettes by Licensed Retailers. A | ||||||
17 | person who possesses a retailer's license under Section 4d of | ||||||
18 | this Act shall obtain cigarettes for sale only from a licensed | ||||||
19 | distributor.
| ||||||
20 | (35 ILCS 130/6) (from Ch. 120, par. 453.6)
| ||||||
21 | Sec. 6. Revocation, cancellation, or suspension of | ||||||
22 | license. | ||||||
23 | (a) The Department may, after notice and hearing as | ||||||
24 | provided for by this
Act, revoke, cancel or suspend the license |
| |||||||
| |||||||
1 | of any distributor or retailer for the
violation of any | ||||||
2 | provision of this Act, or for noncompliance with any
provision | ||||||
3 | herein contained, or for any noncompliance with any lawful rule
| ||||||
4 | or regulation promulgated by the Department under Section 8 of | ||||||
5 | this Act or under the Department of Revenue Law , or
because the | ||||||
6 | licensee is determined to be ineligible for a distributor's
| ||||||
7 | license for any one or more of the reasons provided for in | ||||||
8 | Section 4 of
this Act , or because the licensee has been | ||||||
9 | determined to be ineligible for a retailer's license for any | ||||||
10 | one or more of the reasons provided for in Section 4d of this | ||||||
11 | Act . However, no such license shall be revoked, cancelled or
| ||||||
12 | suspended, except after a hearing by the Department with notice | ||||||
13 | to the
distributor or retailer , as aforesaid, and affording | ||||||
14 | such distributor or retailer a reasonable
opportunity to appear | ||||||
15 | and defend, and any distributor or retailer aggrieved by any
| ||||||
16 | decision of the Department with respect thereto may have the | ||||||
17 | determination
of the Department judicially reviewed, as herein | ||||||
18 | provided.
| ||||||
19 | (a-5) The Department may revoke, cancel, or suspend the | ||||||
20 | license of any
distributor for a violation of the Tobacco | ||||||
21 | Product Manufacturers' Escrow
Enforcement Act as provided in | ||||||
22 | Section 20 of that Act.
| ||||||
23 | (a-10) The Department shall suspend for 7 days the license | ||||||
24 | of a
retailer for a first violation of the Sale of Tobacco to | ||||||
25 | Minors Act, as provided in Section 3 of that Act. | ||||||
26 | The Department shall suspend for 30 days the license of a
|
| |||||||
| |||||||
1 | retailer for a second violation of the Sale of Tobacco to | ||||||
2 | Minors Act, as provided in Section 3 of that Act. | ||||||
3 | The Department shall revoke the license of a retailer for a | ||||||
4 | third or subsequent violation of the Sale of Tobacco to Minors | ||||||
5 | Act, as provided in Section 3 of that Act. | ||||||
6 | (b) Any distributor or retailer aggrieved by any decision | ||||||
7 | of the Department under this
Section
may, within 20 days after | ||||||
8 | notice of the decision, protest and request a
hearing. Upon | ||||||
9 | receiving a request for a hearing, the Department shall give
| ||||||
10 | notice in writing to the distributor or retailer requesting the | ||||||
11 | hearing that contains a
statement of the charges preferred | ||||||
12 | against the distributor or retailer and that states the
time | ||||||
13 | and place fixed for the hearing. The Department shall hold the | ||||||
14 | hearing in
conformity with the provisions of this Act and then | ||||||
15 | issue its final
administrative decision in the matter to the | ||||||
16 | distributor or retailer . In the absence of a
protest and | ||||||
17 | request for a hearing within 20 days, the Department's decision
| ||||||
18 | shall become final without any further determination being made | ||||||
19 | or notice
given.
| ||||||
20 | (c) No license so revoked, as aforesaid, shall be reissued | ||||||
21 | to any such
distributor or retailer within a period of 6 months | ||||||
22 | after the date of the final
determination of such revocation. | ||||||
23 | No such license shall be reissued at all
so long as the person | ||||||
24 | who would receive a distributor's the license is ineligible to
| ||||||
25 | receive a distributor's license under this Act for any one or | ||||||
26 | more of the
reasons provided for in Section 4 of this Act , or |
| |||||||
| |||||||
1 | so long as the person who would receive a retailer's license is | ||||||
2 | ineligible to receive a retailer's license under this Act for | ||||||
3 | any one or more of the reasons provided for in Section 4d of | ||||||
4 | this Act .
| ||||||
5 | (d) The Department upon complaint filed in the circuit
| ||||||
6 | court may by injunction
restrain any person who fails, or | ||||||
7 | refuses, to comply with any of the
provisions of this Act from | ||||||
8 | acting as a distributor of cigarettes in this
State.
| ||||||
9 | (Source: P.A. 91-901, eff. 1-1-01; 92-737, eff. 7-25-02.)
| ||||||
10 | (35 ILCS 130/7) (from Ch. 120, par. 453.7)
| ||||||
11 | Sec. 7.
The Department or any officer or employee of the | ||||||
12 | Department
designated, in writing, by the Director thereof, | ||||||
13 | shall at its or his or
her own instance, or on the written | ||||||
14 | request of any distributor , retailer, or other interested
party | ||||||
15 | to the proceeding, issue subpoenas requiring the attendance of | ||||||
16 | and
the giving of testimony by witnesses, and subpoenas duces | ||||||
17 | tecum requiring
the production of books, papers, records or | ||||||
18 | memoranda. All subpoenas and
subpoenas duces tecum issued under | ||||||
19 | the terms of this Act may be served by
any person of full age. | ||||||
20 | The fees of witnesses for attendance and travel
shall be the | ||||||
21 | same as the fees of witnesses before the circuit court of this
| ||||||
22 | State; such fees to be paid when the witness is excused from | ||||||
23 | further
attendance. When the witness is subpoenaed at the | ||||||
24 | instance of the
Department or any officer or employee thereof, | ||||||
25 | such fees shall be paid in
the same manner as other expenses of |
| |||||||
| |||||||
1 | the Department, and when the witness
is subpoenaed at the | ||||||
2 | instance of any other party to any such proceeding,
the cost of | ||||||
3 | service of the subpoena or subpoena duces tecum and the fee of
| ||||||
4 | the witness shall be borne by the party at whose instance the | ||||||
5 | witness is
summoned. In such case the Department, in its | ||||||
6 | discretion, may require a
deposit to cover the cost of such | ||||||
7 | service and witness fees. A subpoena or
subpoena duces tecum so | ||||||
8 | issued shall be served in the same manner as a subpoena
or | ||||||
9 | subpoena duces tecum issued out of a court.
| ||||||
10 | Any circuit court of this State, upon the
application of | ||||||
11 | the Department or any officer or employee thereof, or upon
the | ||||||
12 | application of any other party to the proceeding, may, in its
| ||||||
13 | discretion, compel the attendance of witnesses, the production | ||||||
14 | of books,
papers, records or memoranda and the giving of | ||||||
15 | testimony before the
Department or any officer or employee | ||||||
16 | thereof conducting an investigation
or holding a hearing | ||||||
17 | authorized by this Act, by an attachment for contempt,
or | ||||||
18 | otherwise, in the same manner as production of evidence may be | ||||||
19 | compelled
before the court.
| ||||||
20 | The Department or any officer or employee thereof, or any | ||||||
21 | other party in
an investigation or hearing before the | ||||||
22 | Department, may cause the
depositions of witnesses within the | ||||||
23 | State to be taken in the manner
prescribed by law for like | ||||||
24 | depositions, or depositions for discovery in
civil actions in | ||||||
25 | courts of this State, and to that end compel the
attendance of | ||||||
26 | witnesses and the production of books, papers, records or
|
| |||||||
| |||||||
1 | memoranda, in the same manner hereinbefore provided.
| ||||||
2 | (Source: P.A. 83-334.)
| ||||||
3 | (35 ILCS 130/8) (from Ch. 120, par. 453.8)
| ||||||
4 | Sec. 8.
The Department may make, promulgate and enforce | ||||||
5 | such
reasonable rules and regulations relating to the | ||||||
6 | administration and
enforcement of this Act as may be deemed | ||||||
7 | expedient.
| ||||||
8 | Whenever notice is required by this Act, such notice may be | ||||||
9 | given by
United States certified or registered mail, addressed | ||||||
10 | to the person concerned at his
last known address, and proof of | ||||||
11 | such mailing shall be sufficient for the
purposes of this Act. | ||||||
12 | Notice of any hearing provided for by this Act shall
be so | ||||||
13 | given not less than 7 days prior to the day fixed for the | ||||||
14 | hearing.
| ||||||
15 | Hearings provided for in this Act shall be held:
| ||||||
16 | (1) In Cook County, if the taxpayer's principal place of | ||||||
17 | business is in
that county;
| ||||||
18 | (2) At the Department's office nearest the taxpayer's | ||||||
19 | principal place of
business, if the taxpayer's principal place | ||||||
20 | of business is in Illinois but
outside Cook County;
| ||||||
21 | (3) In Sangamon County, if the taxpayer's principal place | ||||||
22 | of business is
outside Illinois.
| ||||||
23 | The Circuit Court of the County wherein the hearing is held | ||||||
24 | has
power to review all final administrative decisions of the | ||||||
25 | Department in
administering this Act. The provisions of the |
| |||||||
| |||||||
1 | Administrative Review Law,
and all amendments and
| ||||||
2 | modifications thereof, and the rules adopted pursuant thereto, | ||||||
3 | shall
apply to and govern all proceedings for the judicial | ||||||
4 | review of final
administrative decisions of the Department | ||||||
5 | under this Act. The term
"administrative decision" is defined | ||||||
6 | as in Section 3-101 of the Code of Civil Procedure.
| ||||||
7 | Service upon the Director of Revenue or Assistant Director | ||||||
8 | of Revenue
of summons issued in any action to review a final
| ||||||
9 | administrative decision shall be service upon the Department. | ||||||
10 | The
Department shall certify the record of its proceedings if | ||||||
11 | the distributor or retailer
pays to it the sum of 75ยข per page | ||||||
12 | of testimony taken before the Department
and 25ยข per page of | ||||||
13 | all other matters contained in such record, except that
these | ||||||
14 | charges may be waived where the Department is satisfied that | ||||||
15 | the aggrieved
party is a poor person who cannot afford to pay | ||||||
16 | such charges.
Before the delivery of such record to the person | ||||||
17 | applying for it, payment
of these charges must be made, and if
| ||||||
18 | the record is not paid for within 30 days after notice that | ||||||
19 | such record
is available, the
complaint may be dismissed by the | ||||||
20 | court upon motion of the Department.
| ||||||
21 | No stay order shall be entered by the Circuit Court unless | ||||||
22 | the
distributor or retailer files with the court a bond in an | ||||||
23 | amount fixed and approved by
the court, to indemnify the State | ||||||
24 | against all loss and injury which may be
sustained by it on | ||||||
25 | account of the review proceedings and to secure all
costs which | ||||||
26 | may be occasioned by such proceedings.
|
| |||||||
| |||||||
1 | Whenever any proceeding provided by this Act is begun | ||||||
2 | before the
Department, either by the Department or by a person | ||||||
3 | subject to this Act,
and such person thereafter dies or becomes | ||||||
4 | a person under legal disability
before such
proceeding is | ||||||
5 | concluded, the legal representative of the deceased person
or | ||||||
6 | of the person under legal disability shall notify
the | ||||||
7 | Department of such death or legal disability.
Such legal | ||||||
8 | representative, as such, shall then be substituted
by the | ||||||
9 | Department for such person. If the legal representative fails | ||||||
10 | to
notify the Department of his or her appointment as such | ||||||
11 | legal representative, the
Department may, upon its own motion, | ||||||
12 | substitute such legal representative
in the proceeding pending | ||||||
13 | before the Department for the person who died or
became a | ||||||
14 | person under legal disability.
| ||||||
15 | (Source: P.A. 83-706.)
| ||||||
16 | (35 ILCS 130/10) (from Ch. 120, par. 453.10)
| ||||||
17 | Sec. 10.
The Department, or any officer or employee | ||||||
18 | designated in writing
by the Director thereof, for the purpose | ||||||
19 | of administering and enforcing the
provisions of this Act, may | ||||||
20 | hold investigations and hearings concerning
any matters | ||||||
21 | covered by this Act, and may examine books, papers, records or
| ||||||
22 | memoranda bearing upon the sale or other disposition of | ||||||
23 | cigarettes by such
distributor or retailer , and may issue | ||||||
24 | subpoenas requiring the attendance of such
distributor or | ||||||
25 | retailer , or any officer or employee of such distributor or |
| |||||||
| |||||||
1 | retailer , or any person
having knowledge of the facts, and may | ||||||
2 | take testimony and require proof,
and may issue subpoenas duces | ||||||
3 | tecum to compel the production of relevant
books, papers, | ||||||
4 | records and memoranda, for the information of the
Department.
| ||||||
5 | In the conduct of any investigation or hearing provided for | ||||||
6 | by this Act,
neither the Department, nor any officer or | ||||||
7 | employee thereof, shall be bound
by the technical rules of | ||||||
8 | evidence, and no informality in the proceedings
nor in the | ||||||
9 | manner of taking testimony shall invalidate any rule, order,
| ||||||
10 | decision or regulation made, approved or confirmed by the | ||||||
11 | Department.
| ||||||
12 | The Director of Revenue, or any duly authorized officer or | ||||||
13 | employee of
the Department, shall have the power to administer | ||||||
14 | oaths to such persons
required by this Act to give testimony | ||||||
15 | before the said Department.
| ||||||
16 | The books, papers, records and memoranda of the Department, | ||||||
17 | or parts
thereof, may be proved in any hearing, investigation | ||||||
18 | or legal proceeding by
a reproduced copy thereof under the | ||||||
19 | certificate of the Director of Revenue.
Such reproduced copy | ||||||
20 | shall, without further proof, be admitted into
evidence before | ||||||
21 | the Department or in any legal proceeding.
| ||||||
22 | (Source: Laws 1965, p. 192.)
| ||||||
23 | (35 ILCS 130/11) (from Ch. 120, par. 453.11)
| ||||||
24 | Sec. 11.
Every distributor and every retailer of | ||||||
25 | cigarettes, who is required to procure a
license under this |
| |||||||
| |||||||
1 | Act, shall keep within Illinois, at his licensed
address, | ||||||
2 | complete and accurate records of cigarettes held, purchased,
| ||||||
3 | manufactured, brought in or caused to be brought in from | ||||||
4 | without the State,
and sold, or otherwise disposed of, and | ||||||
5 | shall preserve and keep within
Illinois at his licensed address | ||||||
6 | all invoices, bills of lading, sales
records, copies of bills | ||||||
7 | of sale, inventory at the close of each period for
which a | ||||||
8 | return is required of all cigarettes on hand and of all | ||||||
9 | cigarette
revenue stamps, both affixed and unaffixed, and other | ||||||
10 | pertinent papers and
documents relating to the manufacture, | ||||||
11 | purchase, sale or disposition of
cigarettes. All books and | ||||||
12 | records and other papers and documents that are
required by | ||||||
13 | this Act to be kept shall be kept in the English language, and
| ||||||
14 | shall, at all times during the usual business hours of the day, | ||||||
15 | be subject
to inspection by the Department or its duly | ||||||
16 | authorized agents and employees.
The Department may adopt rules | ||||||
17 | that establish requirements, including record
forms and | ||||||
18 | formats, for records required to be kept and maintained by | ||||||
19 | taxpayers.
For purposes of this Section, "records" means all | ||||||
20 | data maintained by the
taxpayer, including data on paper, | ||||||
21 | microfilm, microfiche or any type of
machine-sensible data | ||||||
22 | compilation. Those books, records, papers and documents
shall | ||||||
23 | be preserved for a period of at least 3 years after the date of | ||||||
24 | the
documents, or the date of the entries appearing in the | ||||||
25 | records, unless the
Department, in writing, authorizes their | ||||||
26 | destruction or disposal at an earlier
date. At all times during |
| |||||||
| |||||||
1 | the usual business hours of the day any duly
authorized agent | ||||||
2 | or employee of the Department may enter any place of business
| ||||||
3 | of the distributor or retailer , without a search warrant, and | ||||||
4 | inspect the premises and the
stock or packages of cigarettes | ||||||
5 | and the vending devices therein contained, to
determine whether | ||||||
6 | any of the provisions of this Act are being violated. If such
| ||||||
7 | agent or employee is denied free access or is hindered or | ||||||
8 | interfered with in
making such examination as herein provided, | ||||||
9 | the license of the distributor or retailer at
such premises | ||||||
10 | shall be subject to revocation by the Department.
| ||||||
11 | (Source: P.A. 88-480.)
| ||||||
12 | (35 ILCS 130/18b) (from Ch. 120, par. 453.18b)
| ||||||
13 | Sec. 18b. Possession of more than 100 original packages of | ||||||
14 | contraband cigarettes; penalty. Any person licensed or | ||||||
15 | required to be licensed as a retailer under this Act possessing | ||||||
16 | original packages of unstamped packages of cigarettes is liable | ||||||
17 | to pay to the Department, for deposit into the Tax Compliance | ||||||
18 | and Administration Fund, a penalty for each such package of | ||||||
19 | cigarettes, unless reasonable cause for possessing said | ||||||
20 | unstamped packages of cigarettes can be established by the | ||||||
21 | person upon whom the penalty is imposed. The penalty shall be | ||||||
22 | $15 per package for possession of less than 101 packages and | ||||||
23 | $25 for possession of each package in excess of 100 packages. | ||||||
24 | With the exception of licensed distributors and transporters, | ||||||
25 | as defined in Section 9c of this Act, possessing unstamped |
| |||||||
| |||||||
1 | original packages of cigarettes, and licensed distributors | ||||||
2 | possessing original packages of cigarettes that bear a tax | ||||||
3 | stamp of another state or taxing jurisdiction, anyone | ||||||
4 | possessing
contraband cigarettes contained in original | ||||||
5 | packages is liable
to pay, to the Department for deposit in the | ||||||
6 | Tax Compliance and Administration Fund, a penalty of
$25 for | ||||||
7 | each such package of cigarettes in excess of 100 packages, | ||||||
8 | unless reasonable cause can be established by the person upon | ||||||
9 | whom the penalty is imposed. This penalty is in addition to the | ||||||
10 | taxes imposed by this Act. Such penalty may be recovered by the | ||||||
11 | Department in a civil action. Reasonable cause shall be | ||||||
12 | determined in each situation in accordance with rules adopted | ||||||
13 | by the Department. The provisions of the Uniform Penalty and | ||||||
14 | Interest Act do not apply to this Section.
| ||||||
15 | (Source: P.A. 96-782, eff. 1-1-10.)
| ||||||
16 | (35 ILCS 130/23) (from Ch. 120, par. 453.23)
| ||||||
17 | Sec. 23.
Every distributor , retailer, or other person who | ||||||
18 | shall knowingly and wilfully
sell or offer for sale any | ||||||
19 | original package, as defined in this Act,
having affixed | ||||||
20 | thereto any fraudulent, spurious, imitation or counterfeit
| ||||||
21 | stamp, or stamp which has been previously affixed, or affixes a | ||||||
22 | stamp which
has previously been affixed to an original package, | ||||||
23 | or who shall knowingly
and wilfully sell or offer for sale any | ||||||
24 | original package, as defined in
this Act, having imprinted | ||||||
25 | thereon underneath the sealed transparent
wrapper thereof any |
| |||||||
| |||||||
1 | fraudulent, spurious, imitation or counterfeit tax
imprint, | ||||||
2 | shall be deemed guilty of a Class 2 felony.
| ||||||
3 | (Source: P.A. 83-1428.)
| ||||||
4 | (35 ILCS 130/24) (from Ch. 120, par. 453.24)
| ||||||
5 | Sec. 24. Punishment for sale or possession of packages of | ||||||
6 | contraband cigarettes.
| ||||||
7 | (a) Any person licensed or required to be licensed as a | ||||||
8 | retailer under this Act, other than a person licensed as a | ||||||
9 | distributor or a transporter, as defined in Section 9c of this | ||||||
10 | Act, who has in his possession, offers for sale, or sells 100 | ||||||
11 | or fewer original packages of unstamped packages of cigarettes, | ||||||
12 | shall be guilty of a Class A misdemeanor for a first offense | ||||||
13 | and a Class 4 felony for each subsequent offense. | ||||||
14 | (b) Any person licensed or required to be licensed as a | ||||||
15 | retailer under this Act, other than a person licensed as a | ||||||
16 | distributor or a transporter, as defined in Section 9c of this | ||||||
17 | Act, who has in his possession, offers for sale or sells more | ||||||
18 | than 100 but fewer than 1001 original packages of unstamped | ||||||
19 | packages of cigarettes, shall be guilty of a Class 4 felony. | ||||||
20 | (c) Any person licensed or required to be licensed as a | ||||||
21 | retailer under this Act, other than a person licensed as a | ||||||
22 | distributor or a transporter, as defined in Section 9c of this | ||||||
23 | Act, who has in his possession, offers for sale or sells more | ||||||
24 | than 1000 original packages of unstamped packages of | ||||||
25 | cigarettes, shall be guilty of a Class 3 felony. |
| |||||||
| |||||||
1 | (d) If a retailer possesses more than 100 original packages | ||||||
2 | of unstamped packages of cigarettes, the prima facie | ||||||
3 | presumption shall arise that the retailer was offering the | ||||||
4 | original packages of unstamped packages of cigarettes for sale. | ||||||
5 | If more than 100 original packages of unstamped packages of | ||||||
6 | cigarettes are found at a location, the prima facie presumption | ||||||
7 | shall arise that the retailer is in possession of the original | ||||||
8 | packages of unstamped packages of cigarettes. | ||||||
9 | (e) Any person licensed as a distributor or transporter, as | ||||||
10 | defined in Section 9c of this Act, who sells an original | ||||||
11 | package of an unstamped package of cigarettes, except when the | ||||||
12 | sale is made under such circumstances that the tax imposed by | ||||||
13 | this Act may not legally be levied because of the Constitution | ||||||
14 | or laws of the United States, shall be guilty of a Class 3 | ||||||
15 | felony. | ||||||
16 | (a) Possession or sale of 100 or less packages of | ||||||
17 | contraband cigarettes. With the exception of licensed | ||||||
18 | distributors or transporters, as defined in Section 9c of this | ||||||
19 | Act, any person who has in his or her possession or sells 100 | ||||||
20 | or less original packages of contraband cigarettes is guilty of | ||||||
21 | a Class A misdemeanor. | ||||||
22 | (b) Possession or sale of more than 100 but less than 251 | ||||||
23 | packages of contraband cigarettes. With the exception of | ||||||
24 | licensed distributors or transporters, as defined in Section 9c | ||||||
25 | of this Act, any person who has in his or her possession or | ||||||
26 | sells more than 100 but less than 251 original packages of |
| |||||||
| |||||||
1 | contraband cigarettes is guilty of a Class A misdemeanor for a | ||||||
2 | first offense and a Class 4 felony for each subsequent offense. | ||||||
3 | (c) Possession or sale of more than 250 but less than 1,001 | ||||||
4 | packages of contraband cigarettes. With the exception of | ||||||
5 | licensed distributors or transporters, as defined in Section 9c | ||||||
6 | of this Act, any person who has in his or her possession or | ||||||
7 | sells more than 250 but less than 1,001 original packages of | ||||||
8 | contraband cigarettes is guilty of a Class 4 felony. | ||||||
9 | (d) Possession or sale of more than 1,000 packages of | ||||||
10 | contraband cigarettes. With the exception of licensed | ||||||
11 | distributors or transporters, as defined in Section 9c of this | ||||||
12 | Act, any person who has in his or her possession or sells more | ||||||
13 | than 1,000 original packages of contraband cigarettes is guilty | ||||||
14 | of a Class 3 felony. | ||||||
15 | (e) Any person licensed as a distributor or transporter, as | ||||||
16 | defined in Section 9c of this Act, who has in his or her | ||||||
17 | possession or sells 100 or less original packages of contraband | ||||||
18 | cigarettes is guilty of a Class A misdemeanor. | ||||||
19 | (f) Any person licensed as a distributor or transporter, as | ||||||
20 | defined in Section 9c of this Act, who has in his or her | ||||||
21 | possession or sells more than 100 original packages of | ||||||
22 | contraband cigarettes is guilty of a Class 4 felony. | ||||||
23 | (g) Notwithstanding subsections (e) through (f), licensed | ||||||
24 | distributors and transporters, as defined in Section 9c of this | ||||||
25 | Act, may possess unstamped packages of cigarettes. | ||||||
26 | Notwithstanding subsections (e) through (f), licensed |
| |||||||
| |||||||
1 | distributors may possess cigarettes that bear a tax stamp of | ||||||
2 | another state or taxing jurisdiction. Notwithstanding | ||||||
3 | subsections (e) through (f), a licensed distributor may possess | ||||||
4 | contraband cigarettes returned to the distributor by a retailer | ||||||
5 | if the distributor immediately conducts an inventory of the | ||||||
6 | cigarettes being returned, the distributor and the retailer | ||||||
7 | returning the contraband cigarettes sign the inventory, the | ||||||
8 | distributor provides a copy of the signed inventory to the | ||||||
9 | retailer, and the distributor retains the inventory in its | ||||||
10 | books and records and promptly notifies the Department of | ||||||
11 | Revenue. | ||||||
12 | (h) Notwithstanding subsections (a) through (d) of this | ||||||
13 | Section, a retailer unknowingly possessing contraband | ||||||
14 | cigarettes obtained from a licensed distributor or knowingly | ||||||
15 | possessing contraband cigarettes obtained from a licensed | ||||||
16 | distributor is not subject to penalties under this Section if | ||||||
17 | the retailer, within 48 hours after discovering that the | ||||||
18 | cigarettes are contraband cigarettes, excluding Saturdays, | ||||||
19 | Sundays, and holidays: (i) notifies the Department and the | ||||||
20 | licensed distributor from whom the cigarettes were obtained, | ||||||
21 | orally and in writing, that he or she possesses contraband | ||||||
22 | cigarettes obtained from a licensed distributor; (ii) places | ||||||
23 | the contraband cigarettes in one or more containers and seals | ||||||
24 | those containers; and (iii) places on the containers the | ||||||
25 | following or similar language: "Contraband Cigarettes. Not For | ||||||
26 | Sale." All contraband cigarettes in the possession of a |
| |||||||
| |||||||
1 | retailer remain subject to forfeiture under the provisions of | ||||||
2 | this Act.
| ||||||
3 | (Source: P.A. 96-782, eff. 1-1-10.)
| ||||||
4 | (35 ILCS 130/26a new)
| ||||||
5 | Sec. 26a. Operation without retail license. Any person who | ||||||
6 | operates as a retailer of original packages of cigarettes as | ||||||
7 | defined by this Act without having a license as required by | ||||||
8 | this Act shall be guilty of a Class 4 felony.
| ||||||
9 | (35 ILCS 130/18c rep.)
| ||||||
10 | Section 915. The Cigarette Tax Act is amended by repealing | ||||||
11 | Section 18c. | ||||||
12 | Section 920. The Cigarette Use Tax Act is amended by | ||||||
13 | changing Sections 1, 3-10, 12, and 25b as follows:
| ||||||
14 | (35 ILCS 135/1) (from Ch. 120, par. 453.31)
| ||||||
15 | Sec. 1. For the purpose of this Act, unless otherwise | ||||||
16 | required by the
context:
| ||||||
17 | "Use" means the exercise by any person of any right or | ||||||
18 | power over
cigarettes incident to the ownership or possession | ||||||
19 | thereof, other than the
making of a sale thereof in the course | ||||||
20 | of engaging in a business of selling
cigarettes and shall | ||||||
21 | include the keeping or retention of cigarettes for use, except | ||||||
22 | that "use" does not include the use of cigarettes by a |
| |||||||
| |||||||
1 | not-for-profit research institution conducting tests | ||||||
2 | concerning the health effects of tobacco products, provided the | ||||||
3 | cigarettes are not offered for resale.
| ||||||
4 | "Brand Style" means a variety of cigarettes distinguished | ||||||
5 | by the tobacco used, tar and nicotine content, flavoring used, | ||||||
6 | size of the cigarette, filtration on the cigarette or | ||||||
7 | packaging. | ||||||
8 | "Cigarette" means any roll for smoking made wholly or in | ||||||
9 | part of tobacco
irrespective of size or shape and whether or | ||||||
10 | not such tobacco is flavored,
adulterated or mixed with any | ||||||
11 | other ingredient, and the wrapper or cover of
which is made of | ||||||
12 | paper or any other substance or material except tobacco.
| ||||||
13 | "Contraband cigarettes" means: | ||||||
14 | (a) cigarettes that do not bear a required tax stamp | ||||||
15 | under this Act; | ||||||
16 | (b) cigarettes for which any required federal taxes | ||||||
17 | have not been paid; | ||||||
18 | (c) cigarettes that bear a counterfeit tax stamp; | ||||||
19 | (d) cigarettes that are manufactured, fabricated, | ||||||
20 | assembled, processed, packaged, or labeled by any person | ||||||
21 | other than (i) the owner of the trademark rights in the | ||||||
22 | cigarette brand or (ii) a person that is directly or | ||||||
23 | indirectly authorized by such owner; | ||||||
24 | (e) cigarettes imported into the United States, or | ||||||
25 | otherwise distributed, in violation of the federal | ||||||
26 | Imported Cigarette Compliance Act of 2000 (Title IV of |
| |||||||
| |||||||
1 | Public Law 106-476); | ||||||
2 | (f) cigarettes that have false manufacturing labels; | ||||||
3 | (g) cigarettes identified in Section 3-10(a)(1) of | ||||||
4 | this Act; or | ||||||
5 | (h) cigarettes that are improperly tax stamped, | ||||||
6 | including cigarettes that bear a tax stamp of another state | ||||||
7 | or taxing jurisdiction. | ||||||
8 | "Person" means any natural individual, firm, partnership, | ||||||
9 | association,
joint stock company, joint adventure, public or | ||||||
10 | private corporation,
however formed, limited liability | ||||||
11 | company, or a receiver, executor,
administrator, trustee, | ||||||
12 | guardian or other representative appointed by order of
any | ||||||
13 | court.
| ||||||
14 | "Department" means the Department of Revenue.
| ||||||
15 | "Sale" means any transfer, exchange or barter in any manner | ||||||
16 | or by any
means whatsoever for a consideration, and includes | ||||||
17 | and means all sales made
by any person.
| ||||||
18 | "Original Package" means the individual packet, box or | ||||||
19 | other container
whatsoever used to contain and to convey | ||||||
20 | cigarettes to the consumer upon which a tax stamp or other | ||||||
21 | indicia of tax payment is or should be affixed .
| ||||||
22 | "Distributor" means any and each of the following:
| ||||||
23 | a. Any person engaged in the business of selling | ||||||
24 | cigarettes in this
State who brings or causes to be brought | ||||||
25 | into this State from without this
State any original | ||||||
26 | packages of cigarettes, on which original packages there
is |
| |||||||
| |||||||
1 | no authorized evidence underneath a sealed transparent | ||||||
2 | wrapper showing
that the tax liability imposed by this Act | ||||||
3 | has been paid or assumed by the
out-of-State seller of such | ||||||
4 | cigarettes, for sale in the course of such
business.
| ||||||
5 | b. Any person who makes, manufactures or fabricates | ||||||
6 | cigarettes in this
State for sale, except a person who | ||||||
7 | makes, manufactures or fabricates
cigarettes for sale to | ||||||
8 | residents incarcerated in penal institutions or resident
| ||||||
9 | patients or a State-operated mental health facility.
| ||||||
10 | c. Any person who makes, manufactures or fabricates | ||||||
11 | cigarettes outside
this State, which cigarettes are placed | ||||||
12 | in original packages contained in
sealed transparent | ||||||
13 | wrappers, for delivery or shipment into this State, and
who | ||||||
14 | elects to qualify and is accepted by the Department as a | ||||||
15 | distributor
under Section 7 of this Act.
| ||||||
16 | "Distributor" does not include any person with respect to a | ||||||
17 | sale of cigarettes to a purchaser for use or consumption, and | ||||||
18 | not for resale. | ||||||
19 | "Distributor" does not include any person who transfers | ||||||
20 | cigarettes to a not-for-profit
research institution that | ||||||
21 | conducts tests concerning the
health effects of tobacco | ||||||
22 | products and who does not offer
the cigarettes for resale.
| ||||||
23 | "Distributor maintaining a place of business in this | ||||||
24 | State", or any like
term, means any distributor having or | ||||||
25 | maintaining within this State,
directly or by a subsidiary, an | ||||||
26 | office, distribution house, sales house,
warehouse or other |
| |||||||
| |||||||
1 | place of business, or any agent operating within this
State | ||||||
2 | under the authority of the distributor or its subsidiary,
| ||||||
3 | irrespective of whether such place of business or agent is | ||||||
4 | located here
permanently or temporarily, or whether such | ||||||
5 | distributor or subsidiary is
licensed to transact business | ||||||
6 | within this State.
| ||||||
7 | "Business" means any trade, occupation, activity or | ||||||
8 | enterprise engaged
in or conducted in this State for the | ||||||
9 | purpose of selling cigarettes.
| ||||||
10 | "Prior Continuous Compliance Taxpayer" means any person | ||||||
11 | who is licensed
under this Act and who, having been a licensee | ||||||
12 | for a continuous period of 5
years, is determined by the | ||||||
13 | Department not to have been either delinquent
or deficient in | ||||||
14 | the payment of tax liability during that period or
otherwise in | ||||||
15 | violation of this Act. Also, any taxpayer who has, as
verified | ||||||
16 | by the Department, continuously complied with the
condition of | ||||||
17 | his bond or other security under provisions of this Act of a
| ||||||
18 | period of 5 consecutive years shall be considered to be a | ||||||
19 | "prior
continuous compliance taxpayer". In calculating the | ||||||
20 | consecutive period of
time described herein for qualification | ||||||
21 | as a "prior continuous compliance
taxpayer", a consecutive | ||||||
22 | period of time of qualifying compliance
immediately prior to | ||||||
23 | the effective date of this amendatory Act of 1987 shall be
| ||||||
24 | credited to any licensee who became licensed on or before the | ||||||
25 | effective date
of this amendatory Act of 1987.
| ||||||
26 | "Stamp" or "stamps" mean the indicia required to be affixed |
| |||||||
| |||||||
1 | on a pack of cigarettes that evidence payment of the tax on | ||||||
2 | cigarettes under Section 2 of this Act. | ||||||
3 | "Related party" means any person that is associated with | ||||||
4 | any other person because he or she: | ||||||
5 | (a) is an officer or director of a business; or | ||||||
6 | (b) is legally recognized as a partner in business. | ||||||
7 | "Unstamped package of cigarettes" means a package of | ||||||
8 | cigarettes that does not bear a tax stamp as required by this | ||||||
9 | Act, including a package of cigarettes that bears a tax
stamp | ||||||
10 | of another state or taxing jurisdiction, a package of | ||||||
11 | cigarettes that bears a counterfeit tax stamp, and a stamped or | ||||||
12 | unstamped package of cigarettes that is marked "Not for sale in | ||||||
13 | the United States". | ||||||
14 | (Source: P.A. 95-462, eff. 8-27-07; 95-1053, eff. 1-1-10; | ||||||
15 | 96-782, eff. 1-1-10.)
| ||||||
16 | (35 ILCS 135/3-10)
| ||||||
17 | Sec. 3-10. Cigarette enforcement.
| ||||||
18 | (a) Prohibitions. It is unlawful for any person:
| ||||||
19 | (1) to sell or distribute in this State; to acquire, | ||||||
20 | hold, own, possess,
or
transport, for sale or distribution | ||||||
21 | in this State; or to import, or cause to be
imported into | ||||||
22 | this State for sale or distribution in this State:
| ||||||
23 | (A) any cigarettes the package of which:
| ||||||
24 | (i) bears any statement, label, stamp, | ||||||
25 | sticker, or notice
indicating that the |
| |||||||
| |||||||
1 | manufacturer did not intend the cigarettes to be
| ||||||
2 | sold, distributed, or used in the United States, | ||||||
3 | including but not
limited to labels stating "For | ||||||
4 | Export Only", "U.S. Tax Exempt",
"For Use Outside | ||||||
5 | U.S.", or similar wording; or
| ||||||
6 | (ii) does not comply with:
| ||||||
7 | (aa) all requirements imposed by or | ||||||
8 | pursuant to
federal law regarding warnings and | ||||||
9 | other information on
packages of cigarettes | ||||||
10 | manufactured, packaged, or imported
for sale, | ||||||
11 | distribution, or use in the United States, | ||||||
12 | including
but not limited to the precise | ||||||
13 | warning labels specified in the
federal | ||||||
14 | Cigarette Labeling and Advertising Act, 15 | ||||||
15 | U.S.C.
1333; and
| ||||||
16 | (bb) all federal trademark and copyright | ||||||
17 | laws;
| ||||||
18 | (B) any cigarettes imported into the United States | ||||||
19 | in violation of
26 U.S.C. 5754 or any other federal | ||||||
20 | law, or implementing federal
regulations;
| ||||||
21 | (C) any cigarettes that such person otherwise | ||||||
22 | knows or has reason
to know the manufacturer did not | ||||||
23 | intend to be sold, distributed, or used in
the United | ||||||
24 | States; or
| ||||||
25 | (D) any cigarettes for which there has not been | ||||||
26 | submitted to the
Secretary of the U.S. Department of |
| |||||||
| |||||||
1 | Health and Human Services the list or
lists of the | ||||||
2 | ingredients added to tobacco in the manufacture of the
| ||||||
3 | cigarettes required by the federal Cigarette Labeling | ||||||
4 | and Advertising Act,
15 U.S.C. 1335a;
| ||||||
5 | (2) to alter the package of any cigarettes, prior to | ||||||
6 | sale or distribution
to
the
ultimate consumer, so as to | ||||||
7 | remove, conceal, or obscure:
| ||||||
8 | (A) any statement, label, stamp, sticker, or | ||||||
9 | notice described in
subdivision (a)(1)(A)(i) of this | ||||||
10 | Section;
| ||||||
11 | (B) any health warning that is not specified in, or | ||||||
12 | does not conform
with the requirements of, the federal | ||||||
13 | Cigarette Labeling and Advertising
Act, 15 U.S.C. | ||||||
14 | 1333; or
| ||||||
15 | (3) to affix any stamp required pursuant to this Act to | ||||||
16 | the package of any
cigarettes described in subdivision | ||||||
17 | (a)(1) of this Section or altered in
violation of
| ||||||
18 | subdivision (a)(2).
| ||||||
19 | (b) Documentation. On the first business day of each month, | ||||||
20 | each person
licensed
to affix the State tax stamp to cigarettes | ||||||
21 | shall file with the Department, for
all cigarettes
imported | ||||||
22 | into the United States to which the person has affixed the tax | ||||||
23 | stamp
in the
preceding month:
| ||||||
24 | (1) a copy of:
| ||||||
25 | (A) the permit issued pursuant to the Internal | ||||||
26 | Revenue Code, 26
U.S.C. 5713, to the person importing |
| |||||||
| |||||||
1 | the cigarettes into the United States
allowing the | ||||||
2 | person to import the cigarettes; and
| ||||||
3 | (B) the customs form containing, with respect to | ||||||
4 | the cigarettes, the
internal revenue tax information | ||||||
5 | required by the U.S. Bureau of Alcohol,
Tobacco and | ||||||
6 | Firearms;
| ||||||
7 | (2) a statement, signed by the person under penalty of | ||||||
8 | perjury, which shall
be treated as confidential by the | ||||||
9 | Department and exempt from disclosure under
the Freedom of | ||||||
10 | Information Act, identifying the brand and brand styles of | ||||||
11 | all such
cigarettes, the quantity of each brand style of | ||||||
12 | such cigarettes, the supplier of such
cigarettes, and the | ||||||
13 | person or persons, if any, to whom such cigarettes have | ||||||
14 | been
conveyed for resale; and a separate statement, signed | ||||||
15 | by the individual under
penalty of perjury, which shall not | ||||||
16 | be treated as confidential or exempt from
disclosure, | ||||||
17 | separately identifying the brands and brand styles of such
| ||||||
18 | cigarettes;
and
| ||||||
19 | (3) a statement, signed by an officer of the | ||||||
20 | manufacturer or importer
under penalty of perjury, | ||||||
21 | certifying that the manufacturer or importer has
complied | ||||||
22 | with:
| ||||||
23 | (A) the package health warning and ingredient | ||||||
24 | reporting
requirements of the federal Cigarette | ||||||
25 | Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | ||||||
26 | with respect to such cigarettes; and
|
| |||||||
| |||||||
1 | (B) the provisions of Exhibit T of the Master | ||||||
2 | Settlement Agreement
entered in
the case of People of | ||||||
3 | the State of Illinois v. Philip Morris, et al. (Circuit
| ||||||
4 | Court of Cook County, No. 96-L13146), including a | ||||||
5 | statement
indicating whether the manufacturer is, or | ||||||
6 | is not, a participating tobacco
manufacturer within | ||||||
7 | the meaning of Exhibit T.
| ||||||
8 | (b-5) Criminal penalties. A person who violates subsection | ||||||
9 | (a) or subsection (b) of this Section shall be guilty of a | ||||||
10 | Class 4 felony. | ||||||
11 | (c) Administrative sanctions.
| ||||||
12 | (1) Upon finding that a distributor or a person has | ||||||
13 | committed any of the acts
prohibited by
subsection
(a), | ||||||
14 | knowing or having reason to know that he or she has done | ||||||
15 | so, or has failed
to comply
with any requirement of | ||||||
16 | subsection (b), the Department may revoke or suspend
the
| ||||||
17 | license or licenses of any
distributor pursuant to the | ||||||
18 | procedures set forth in Section 6 and impose on the
| ||||||
19 | distributor, or on the person, a civil penalty in an amount | ||||||
20 | not to exceed the greater of 500% of
the
retail value of | ||||||
21 | the cigarettes involved or $5,000.
| ||||||
22 | (2) Cigarettes that are acquired, held, owned, | ||||||
23 | possessed, transported in,
imported into, or sold or | ||||||
24 | distributed in this State in violation of this
Section | ||||||
25 | shall be deemed contraband under this Act and are subject | ||||||
26 | to seizure
and forfeiture as provided in this Act, and all |
| |||||||
| |||||||
1 | such cigarettes seized and
forfeited shall be destroyed or | ||||||
2 | maintained and used in an undercover capacity. Such | ||||||
3 | cigarettes shall be deemed contraband
whether the | ||||||
4 | violation of this Section is knowing or otherwise.
| ||||||
5 | (d) Unfair trade practices. In addition to any other | ||||||
6 | penalties provided for in this Act, a violation of subsection | ||||||
7 | (a) or subsection
(b) of this Section shall constitute an | ||||||
8 | unlawful practice as provided in the
Consumer Fraud and | ||||||
9 | Deceptive Business Practices Act.
| ||||||
10 | (d-1) Retailers shall not be liable under subsections | ||||||
11 | (c)(1) and (d) of this Section for unknowingly possessing, | ||||||
12 | selling, or distributing to consumers or users cigarettes | ||||||
13 | identified in subsection (a)(1) of this Section if the | ||||||
14 | cigarettes possessed, sold, or distributed by the retailer were | ||||||
15 | obtained from a distributor licensed under this Act or the | ||||||
16 | Cigarette Tax Act. | ||||||
17 | (e) Unfair cigarette sales. For purposes of the Trademark | ||||||
18 | Registration and
Protection Act and the Counterfeit Trademark | ||||||
19 | Act, cigarettes imported or
reimported into the United States | ||||||
20 | for sale or distribution under any trade
name, trade dress, or | ||||||
21 | trademark that is the same as, or is confusingly similar
to, | ||||||
22 | any trade name, trade dress, or trademark used for cigarettes | ||||||
23 | manufactured
in the United States for sale or distribution in | ||||||
24 | the United States shall be
presumed to have been purchased | ||||||
25 | outside of the ordinary channels of trade.
| ||||||
26 | (f) General provisions.
|
| |||||||
| |||||||
1 | (1) This Section shall be enforced by the Department; | ||||||
2 | provided that, at
the request of the Director of Revenue or | ||||||
3 | the Director's duly authorized agent,
the State police and | ||||||
4 | all local police authorities shall enforce the provisions
| ||||||
5 | of this Section. The Attorney General has concurrent power | ||||||
6 | with the State's
Attorney of any county to enforce this | ||||||
7 | Section.
| ||||||
8 | (2) For the purpose of enforcing this Section, the | ||||||
9 | Director of Revenue and
any agency to which the Director | ||||||
10 | has delegated enforcement
responsibility pursuant to | ||||||
11 | subdivision (f)(1) may request information from any
State | ||||||
12 | or local agency and may share information with and request | ||||||
13 | information
from any federal agency and any agency of any | ||||||
14 | other state or any local agency
of any other state.
| ||||||
15 | (3) In addition to any other remedy provided by law, | ||||||
16 | including
enforcement as provided in subdivision (a)(1), | ||||||
17 | any person may bring an action
for appropriate injunctive | ||||||
18 | or other equitable relief for a violation of this
Section; | ||||||
19 | actual damages, if any, sustained by reason of the | ||||||
20 | violation; and, as
determined by the court, interest on the | ||||||
21 | damages from the date of the
complaint, taxable costs, and | ||||||
22 | reasonable attorney's fees. If the trier of fact
finds that | ||||||
23 | the violation is flagrant, it may increase recovery to an | ||||||
24 | amount not
in excess of 3 times the actual damages | ||||||
25 | sustained by reason of the violation.
| ||||||
26 | (g) Definitions. As used in this Section:
|
| |||||||
| |||||||
1 | "Importer" means that term as defined in 26 U.S.C. 5702(1).
| ||||||
2 | "Package" means that term as defined in 15 U.S.C. 1332(4).
| ||||||
3 | (h) Applicability.
| ||||||
4 | (1) This Section does not apply to:
| ||||||
5 | (A) cigarettes allowed to be imported or brought | ||||||
6 | into the United
States for personal use; and
| ||||||
7 | (B) cigarettes sold or intended to be sold as | ||||||
8 | duty-free merchandise
by a duty-free sales enterprise | ||||||
9 | in accordance with the provisions of 19
U.S.C. 1555(b) | ||||||
10 | and any implementing regulations; except that this | ||||||
11 | Section
shall apply to any such cigarettes that are | ||||||
12 | brought back into the customs
territory for resale | ||||||
13 | within the customs territory.
| ||||||
14 | (2) The penalties provided in this Section are in | ||||||
15 | addition to any other
penalties imposed under other | ||||||
16 | provision of law.
| ||||||
17 | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10.)
| ||||||
18 | (35 ILCS 135/12) (from Ch. 120, par. 453.42)
| ||||||
19 | Sec. 12. Declaration of possession of cigarettes on which | ||||||
20 | tax not paid.
| ||||||
21 | (a) When cigarettes are acquired for use in this State by a | ||||||
22 | person
(including a distributor as well as any other person) , | ||||||
23 | who did not pay the
tax herein imposed to a distributor, the | ||||||
24 | person, within 30 days after
acquiring the cigarettes, shall | ||||||
25 | file with the Department a return
declaring the possession of |
| |||||||
| |||||||
1 | the cigarettes and shall transmit with
the
return to the | ||||||
2 | Department the tax imposed by this Act.
| ||||||
3 | (b) On receipt of the return and payment of the tax as | ||||||
4 | required by
paragraph (a), the Department may furnish the | ||||||
5 | person with a suitable tax stamp
to be
affixed to the package | ||||||
6 | of cigarettes upon which the tax has been paid
if the | ||||||
7 | Department determines that the cigarettes still exist.
| ||||||
8 | (c) The return referred to in paragraph
(a) shall
contain | ||||||
9 | the name and address of the person possessing the cigarettes
| ||||||
10 | involved, the location of the cigarettes and the quantity, | ||||||
11 | brand
name,
place, and date of the acquisition of the | ||||||
12 | cigarettes.
| ||||||
13 | (d) The provisions of the Uniform Penalty and Interest Act | ||||||
14 | (35 ILCS 735/) do not apply to this Section. | ||||||
15 | (Source: P.A. 92-322, eff. 1-1-02.)
| ||||||
16 | (35 ILCS 135/25b)
| ||||||
17 | Sec. 25b.
Possession of cigarette packages by persons not | ||||||
18 | licensed as a distributor or a retailer; penalty. Any person | ||||||
19 | other than a person licensed as a distributor or a retailer | ||||||
20 | under the Cigarette Tax Act in possession of more than 10 but | ||||||
21 | fewer than 101 original packages of unstamped packages of | ||||||
22 | cigarettes and who has not paid the taxes imposed by this Act | ||||||
23 | within 30 days of acquiring the cigarettes, shall be liable to | ||||||
24 | pay to the Department for deposit into the Tax Compliance and | ||||||
25 | Administration Fund, a penalty of $15 for possession of each |
| |||||||
| |||||||
1 | package of cigarettes. Any person other than a person licensed | ||||||
2 | as a distributor or a retailer under the Cigarette Tax Act in | ||||||
3 | possession of more than 100 original packages of unstamped | ||||||
4 | packages of cigarettes and who has not paid the taxes imposed | ||||||
5 | by this Act within 30 days of acquiring the cigarettes, shall | ||||||
6 | be liable to pay to the Department for deposit into the Tax | ||||||
7 | Compliance and Administration Fund, a penalty of $25 for | ||||||
8 | possession of each package of cigarettes. Possession of
not | ||||||
9 | less than 10 and not
more than
100 original packages not tax | ||||||
10 | stamped or
improperly tax stamped; penalty. With the exception | ||||||
11 | of licensed distributors and transporters, as defined in | ||||||
12 | Section 9c of the Cigarette Tax Act, possessing unstamped | ||||||
13 | packages of cigarettes, and licensed distributors possessing | ||||||
14 | original packages of cigarettes that bear a tax stamp of | ||||||
15 | another state or taxing jurisdiction,
anyone possessing
not | ||||||
16 | less than 10
and not more than 100 packages of
contraband | ||||||
17 | cigarettes contained in original packages is
liable to pay to | ||||||
18 | the Department, for deposit into the Tax Compliance and
| ||||||
19 | Administration Fund, a penalty of $20
for each such package of
| ||||||
20 | cigarettes, unless reasonable cause can be established by the | ||||||
21 | person upon whom
the penalty is imposed. Reasonable cause shall | ||||||
22 | be determined in each situation
in accordance with rules | ||||||
23 | adopted by the Department. Any person who purchases and | ||||||
24 | possesses a total of 9 or fewer original packages of unstamped | ||||||
25 | cigarettes per month is exempt from the penalties of this | ||||||
26 | Section. The provisions of the Uniform Penalty and Interest Act |
| |||||||
| |||||||
1 | do not apply to this Section.
| ||||||
2 | (Source: P.A. 96-782, eff. 1-1-10.)
| ||||||
3 | (35 ILCS 135/25a rep.)
| ||||||
4 | Section 925. The Cigarette Use Tax Act is amended by | ||||||
5 | repealing Section 25a. | ||||||
6 | Section 930. The Tobacco Products Tax Act of 1995 is | ||||||
7 | amended by changing Sections 10-5, 10-20, 10-25, 10-30, 10-35, | ||||||
8 | and 10-50 and by adding Sections 10-21, 10-22, 10-36, and 10-53 | ||||||
9 | as follows:
| ||||||
10 | (35 ILCS 143/10-5)
| ||||||
11 | Sec. 10-5. Definitions. For purposes of this Act:
| ||||||
12 | "Business" means any trade, occupation, activity, or | ||||||
13 | enterprise engaged
in, at any location whatsoever, for the | ||||||
14 | purpose of selling tobacco products.
| ||||||
15 | "Cigarette" has the meaning ascribed to the term in Section | ||||||
16 | 1 of the
Cigarette Tax Act.
| ||||||
17 | "Correctional Industries program" means a program run by a | ||||||
18 | State penal
institution in which residents of the penal | ||||||
19 | institution produce tobacco
products for sale to persons | ||||||
20 | incarcerated in penal institutions or resident
patients of a | ||||||
21 | State operated mental health facility.
| ||||||
22 | "Department" means the Illinois Department of Revenue.
| ||||||
23 | "Distributor" means any of the following:
|
| |||||||
| |||||||
1 | (1) Any manufacturer or wholesaler in this State | ||||||
2 | engaged in the business
of selling tobacco products who | ||||||
3 | sells, exchanges, or distributes tobacco
products to | ||||||
4 | retailers or consumers in this State.
| ||||||
5 | (2) Any manufacturer or wholesaler engaged
in
the | ||||||
6 | business of selling tobacco products from without this | ||||||
7 | State who sells,
exchanges, distributes,
ships, or | ||||||
8 | transports tobacco products to retailers or consumers | ||||||
9 | located in
this State,
who (i) so long as that manufacturer | ||||||
10 | or wholesaler has or maintains within this State,
directly | ||||||
11 | or by subsidiary, an office, sales house, or other place of | ||||||
12 | business,
or any agent or other representative operating | ||||||
13 | within this State under the
authority of the person or | ||||||
14 | subsidiary, irrespective of whether the place of
business | ||||||
15 | or agent or other representative is located here | ||||||
16 | permanently or
temporarily , or (ii) elects to apply for a | ||||||
17 | distributor's license and is approved by the Department as | ||||||
18 | a licensed distributor .
| ||||||
19 | (3) Any retailer who receives tobacco products on which | ||||||
20 | the tax has not
been or
will not be paid by another | ||||||
21 | distributor.
| ||||||
22 | "Distributor" does not include any person with respect to a | ||||||
23 | sale of tobacco products to a purchaser for use or consumption, | ||||||
24 | and not for resale. | ||||||
25 | "Distributor" does not include any person, wherever | ||||||
26 | resident or located, who
makes, manufactures, or fabricates |
| |||||||
| |||||||
1 | tobacco products as part of a Correctional
Industries program | ||||||
2 | for sale to residents incarcerated in penal institutions or
| ||||||
3 | resident patients of a State operated mental health facility.
| ||||||
4 | "Manufacturer" means any person, wherever resident or | ||||||
5 | located, who
manufactures and sells tobacco products, except a | ||||||
6 | person who makes,
manufactures, or fabricates tobacco products | ||||||
7 | as a part of a Correctional
Industries program for sale to | ||||||
8 | persons incarcerated in penal institutions or
resident | ||||||
9 | patients of a State operated mental health facility.
| ||||||
10 | "Person" means any natural individual, firm, partnership, | ||||||
11 | association, joint
stock company, joint venture, limited | ||||||
12 | liability company, or public or private
corporation, however | ||||||
13 | formed, or a receiver, executor, administrator, trustee,
| ||||||
14 | conservator, or other representative appointed by order of any | ||||||
15 | court.
| ||||||
16 | "Place of business" means and includes any place where | ||||||
17 | tobacco products
are sold or where tobacco products are | ||||||
18 | manufactured, stored, or kept for
the purpose of sale or | ||||||
19 | consumption, including any vessel, vehicle, airplane,
train, | ||||||
20 | or vending machine.
| ||||||
21 | "Retailer" means any person in this State engaged in the | ||||||
22 | business of selling
tobacco products to consumers in this | ||||||
23 | State, regardless of quantity or number
of sales.
| ||||||
24 | "Sale" means any transfer, exchange, or barter in any | ||||||
25 | manner or by any means
whatsoever for a consideration and | ||||||
26 | includes all sales made by
persons.
|
| |||||||
| |||||||
1 | "Tobacco products" means any cigars; cheroots; stogies; | ||||||
2 | periques; granulated,
plug cut, crimp cut, ready rubbed, and | ||||||
3 | other smoking tobacco; snuff or snuff
flour; cavendish; plug | ||||||
4 | and twist tobacco; fine-cut and other chewing tobaccos;
shorts; | ||||||
5 | refuse scraps, clippings, cuttings, and sweeping of tobacco; | ||||||
6 | and
other kinds and forms of tobacco, prepared in such manner | ||||||
7 | as to be suitable for
chewing or smoking in a pipe or | ||||||
8 | otherwise, or both for chewing and smoking; but
does not | ||||||
9 | include cigarettes or tobacco purchased for the manufacture of
| ||||||
10 | cigarettes by cigarette distributors and manufacturers defined | ||||||
11 | in the
Cigarette Tax Act and persons who make, manufacture, or | ||||||
12 | fabricate
cigarettes as a part of a Correctional Industries | ||||||
13 | program for sale to
residents incarcerated in penal | ||||||
14 | institutions or resident patients of a
State operated mental | ||||||
15 | health facility.
| ||||||
16 | "Wholesale price" means the established list price for | ||||||
17 | which a manufacturer
sells tobacco products to a distributor, | ||||||
18 | before the allowance of any discount,
trade allowance, rebate, | ||||||
19 | or other reduction.
In the absence of such an established list | ||||||
20 | price, the manufacturer's invoice
price at which the | ||||||
21 | manufacturer sells the tobacco product to unaffiliated
| ||||||
22 | distributors, before any discounts, trade allowances, rebates, | ||||||
23 | or other
reductions, shall be presumed to be the wholesale | ||||||
24 | price.
| ||||||
25 | "Wholesaler" means any person, wherever resident or | ||||||
26 | located, engaged in the
business of selling tobacco products to |
| |||||||
| |||||||
1 | others for the purpose of resale.
| ||||||
2 | (Source: P.A. 92-231, eff. 8-2-01.)
| ||||||
3 | (35 ILCS 143/10-20)
| ||||||
4 | Sec. 10-20. Distributor's Licenses. It shall be unlawful | ||||||
5 | for any person to engage in
business as a distributor of | ||||||
6 | tobacco products within the
meaning
of this Act without first | ||||||
7 | having obtained a license to do so from the
Department. | ||||||
8 | Application for that license shall be made to the Department in | ||||||
9 | a
form prescribed and furnished by the Department. Each | ||||||
10 | applicant for a license
shall furnish to the Department on a | ||||||
11 | form, signed and verified by the
applicant, the following | ||||||
12 | information:
| ||||||
13 | (1) The name of the applicant.
| ||||||
14 | (2) The address of the location at which the applicant | ||||||
15 | proposes to engage
in business as a distributor of tobacco | ||||||
16 | products.
| ||||||
17 | (3) Other information the Department may reasonably | ||||||
18 | require.
| ||||||
19 | Except as otherwise provided in this Section, every | ||||||
20 | applicant who is required
to procure a distributor's license | ||||||
21 | shall file with his or her application a
joint and several | ||||||
22 | bond. The bond shall be executed to the Department of
Revenue, | ||||||
23 | with good and sufficient surety or sureties residing or | ||||||
24 | licensed to do
business within the State of Illinois, | ||||||
25 | conditioned upon the true and faithful
compliance by the |
| |||||||
| |||||||
1 | licensee with all of the provisions of this Act. The
Department | ||||||
2 | shall fix the amount of the bond for each applicant, taking | ||||||
3 | into
consideration the amount of money expected to become due | ||||||
4 | from the applicant
under this Act. The amount of bond required | ||||||
5 | by the Department shall be an
amount that, in its opinion, will | ||||||
6 | protect the State of Illinois against failure
to pay the amount | ||||||
7 | that may become due from the applicant under this Act, but
the | ||||||
8 | amount of the security required by the Department shall not | ||||||
9 | exceed 3 times
the amount of the applicant's average monthly | ||||||
10 | tax liability, or $50,000,
whichever amount is lower. The bond, | ||||||
11 | a reissue, or a substitute shall be kept
in full force and | ||||||
12 | effect during the entire period covered by the license. A
| ||||||
13 | separate application for license shall be made, and bond filed,
| ||||||
14 | for each place of business at which a person who is required to | ||||||
15 | procure a
distributor's license proposes to engage in business | ||||||
16 | as a distributor under this Act.
| ||||||
17 | The Department, upon receipt of an application and bond in | ||||||
18 | proper form,
shall issue to the applicant a license, in a form | ||||||
19 | prescribed by the
Department, which shall permit the applicant | ||||||
20 | to whom it is issued
to engage in business as a distributor at | ||||||
21 | the place shown on his or her
application. The license shall be | ||||||
22 | issued by the Department without charge
or cost to the | ||||||
23 | applicant. No license issued under this Act is
transferable or | ||||||
24 | assignable. The license shall be conspicuously displayed
in the | ||||||
25 | place of business conducted by the licensee under the
license.
| ||||||
26 | The bonding requirement in this Section does not apply to |
| |||||||
| |||||||
1 | an applicant
for a distributor's license who is already bonded | ||||||
2 | under the Cigarette
Tax Act or the Cigarette Use Tax Act.
| ||||||
3 | Licenses issued by the Department under this Act shall be valid | ||||||
4 | for a period
not to exceed one year after issuance unless | ||||||
5 | sooner revoked, canceled, or
suspended as provided in this Act.
| ||||||
6 | No license shall be issued to any person who is in default | ||||||
7 | to the State
of Illinois for moneys due under this Act or any | ||||||
8 | other tax Act administered
by the Department.
| ||||||
9 | The Department may, in its discretion, upon application, | ||||||
10 | authorize the
payment of the tax imposed under Section 10-10 by | ||||||
11 | any distributor or
manufacturer not otherwise subject to the | ||||||
12 | tax imposed under this Act who, to
the satisfaction of the | ||||||
13 | Department, furnishes adequate security to ensure
payment of | ||||||
14 | the tax. The distributor or manufacturer shall be issued, | ||||||
15 | without
charge, a license to remit the tax. When so authorized, | ||||||
16 | it shall be the duty
of the distributor or manufacturer to | ||||||
17 | remit the tax imposed upon the wholesale
price of tobacco | ||||||
18 | products sold or otherwise disposed of to retailers or
| ||||||
19 | consumers located in this State, in the
same manner and subject | ||||||
20 | to the same requirements as any other
distributor or
| ||||||
21 | manufacturer licensed under this Act.
| ||||||
22 | The Department may revoke, suspend, or cancel the license | ||||||
23 | of a distributor
of roll-your-own tobacco (as that term is used | ||||||
24 | in Section 10 of the Tobacco
Product
Manufacturers' Escrow Act) | ||||||
25 | under this Act if the tobacco product manufacturer,
as
defined | ||||||
26 | in Section 10 of the Tobacco Product Manufacturers' Escrow Act, |
| |||||||
| |||||||
1 | that
made or sold the roll-your-own tobacco has failed to | ||||||
2 | become a participating
manufacturer, as defined in subdivision | ||||||
3 | (a)(1) of Section 15 of the Tobacco
Product Manufacturers' | ||||||
4 | Escrow Act, or has failed to create a qualified escrow
fund for | ||||||
5 | any roll-your-own tobacco manufactured by the tobacco product
| ||||||
6 | manufacturer
and sold in this State or otherwise failed to | ||||||
7 | bring itself into compliance with
subdivision (a)(2) of Section | ||||||
8 | 15
of the Tobacco Product Manufacturers' Escrow Act.
| ||||||
9 | Any person aggrieved by any decision of the Department | ||||||
10 | under this Section
may, within 20 days after notice of that | ||||||
11 | decision, protest and request a
hearing, whereupon the | ||||||
12 | Department must give notice to that person of the time
and | ||||||
13 | place fixed for the hearing and must hold a hearing in | ||||||
14 | conformity with
the provisions of this Act and then issue its | ||||||
15 | final administrative decision in
the matter to that person. In | ||||||
16 | the absence of such a protest within 20 days,
the Department's | ||||||
17 | decision becomes final without any further determination
being | ||||||
18 | made or notice given.
| ||||||
19 | (Source: P.A. 92-231, eff. 8-2-01; 92-737, eff. 7-25-02.)
| ||||||
20 | (35 ILCS 143/10-21 new) | ||||||
21 | Sec. 10-21. Retailer's license. | ||||||
22 | (a) Commencing January 1, 2011, no person may engage in | ||||||
23 | business as a retailer of tobacco products in this State | ||||||
24 | without first having obtained a retailer's license from the | ||||||
25 | Department. Application for a license shall be made to the |
| |||||||
| |||||||
1 | Department in form as furnished and prescribed by the | ||||||
2 | Department. Each applicant for a license under this Section | ||||||
3 | shall furnish to the Department on the form signed and verified | ||||||
4 | by the applicant the following information: | ||||||
5 | (1) the name and address of the applicant; | ||||||
6 | (2) the address of the location at which the applicant | ||||||
7 | proposes to engage in business as a retailer of tobacco | ||||||
8 | products in this State; and | ||||||
9 | (3) such other additional information as the | ||||||
10 | Department may lawfully require by its rules and | ||||||
11 | regulations. | ||||||
12 | (b) The annual license fee payable to the Department for | ||||||
13 | each retailer's license shall be $250. The fee will be placed | ||||||
14 | into the Tax Compliance and Administration Fund and used | ||||||
15 | towards the cost of retail inspections. Each applicant for a | ||||||
16 | license shall pay that fee to the Department at the time of | ||||||
17 | submitting the application for a license to the Department. | ||||||
18 | (c) The Department may, in its discretion, require an | ||||||
19 | applicant who is required to procure a retailer's license to | ||||||
20 | file with the application a joint and several bond. If | ||||||
21 | required, such bond shall be executed to the Department of | ||||||
22 | Revenue, with good and sufficient surety or sureties residing | ||||||
23 | or licensed to do business within the State of Illinois, in an | ||||||
24 | amount of not less than $2,500, conditioned upon the true and | ||||||
25 | faithful compliance by the licensee with all of the provisions | ||||||
26 | of this Act. If required, such bond, or a reissue thereof, or a |
| |||||||
| |||||||
1 | substitute therefor, shall be kept in effect during the entire | ||||||
2 | period covered by the license. A separate application for | ||||||
3 | license shall be made, a separate annual license fee paid, and, | ||||||
4 | if required, a separate bond filed, for each place of business | ||||||
5 | at which a person who is required to procure a retailer's | ||||||
6 | license under this Section proposes to engage in business as a | ||||||
7 | retailer in Illinois under this Act. | ||||||
8 | The following are ineligible to receive a retailer's | ||||||
9 | license under this Act: | ||||||
10 | (1) a person who is not of good character and | ||||||
11 | reputation in the community in which he resides; | ||||||
12 | (2) a person who has been convicted of a felony under | ||||||
13 | any federal or State law, if the Department, after | ||||||
14 | investigation and a hearing, if requested by the applicant, | ||||||
15 | determines that the person has not been sufficiently | ||||||
16 | rehabilitated to warrant the public trust; | ||||||
17 | (3) a corporation, if any officer, manager, or director | ||||||
18 | thereof, or any stockholder or stockholders owning in the | ||||||
19 | aggregate more than 5% of the stock of the corporation, | ||||||
20 | would not be eligible to receive a license under this Act | ||||||
21 | for any reason; | ||||||
22 | (4) a person who possesses a distributor's license | ||||||
23 | under Section 10-20 of this Act. | ||||||
24 | (d) The Department, upon receipt of an application, license | ||||||
25 | fee, and bond in proper form from a person who is eligible to | ||||||
26 | receive a retailer's license under this Act, shall issue to the |
| |||||||
| |||||||
1 | applicant a license in form as prescribed by the Department, | ||||||
2 | which license shall permit the applicant to engage in business | ||||||
3 | as a retailer under this Act at the place shown in the | ||||||
4 | application. All licenses issued by the Department under this | ||||||
5 | Section shall be valid for not to exceed one year after | ||||||
6 | issuance unless sooner revoked, canceled or suspended as | ||||||
7 | provided in this Act. No license issued under this Section is | ||||||
8 | transferable or assignable. The license shall be conspicuously | ||||||
9 | displayed in the place of business conducted by the licensee in | ||||||
10 | Illinois under the license. The Department shall not issue a | ||||||
11 | license to a retailer unless the retailer is also validly | ||||||
12 | registered under the Retailers' Occupation Tax Act. A person | ||||||
13 | who obtains a license as a retailer and then ceases to do | ||||||
14 | business as specified in the license, or who does not commence | ||||||
15 | business, or who obtains a distributor's license, or whose | ||||||
16 | license is suspended or revoked, shall immediately surrender | ||||||
17 | the license to the Department. A retailer as defined under the | ||||||
18 | Cigarette Tax Act need not obtain an additional license under | ||||||
19 | this Act, but shall be deemed to be sufficiently licensed by | ||||||
20 | virtue of his being properly licensed as a retailer under | ||||||
21 | Section 4d of the Cigarette Tax Act. | ||||||
22 | (e) Any person aggrieved by any decision of the Department | ||||||
23 | under this subsection may, within 20 days after notice of the | ||||||
24 | decision, protest and request a hearing. Upon receiving a | ||||||
25 | request for a hearing, the Department shall give notice to the | ||||||
26 | person requesting the hearing of the time and place fixed for |
| |||||||
| |||||||
1 | the hearing and shall hold a hearing in conformity with the | ||||||
2 | provisions of this Act and then issue its final administrative | ||||||
3 | decision in the matter to that person. In the absence of a | ||||||
4 | protest and request for a hearing within 20 days, the | ||||||
5 | Department's decision shall become final without any further | ||||||
6 | determination being made or notice given. | ||||||
7 | (35 ILCS 143/10-22 new) | ||||||
8 | Sec. 10-22. Purchases of tobacco products by licensed | ||||||
9 | retailers. A person who possesses a retailer's license under | ||||||
10 | Section 10-21 of this Act shall obtain tobacco products for | ||||||
11 | sale only from a licensed distributor.
| ||||||
12 | (35 ILCS 143/10-25)
| ||||||
13 | Sec. 10-25. License actions. | ||||||
14 | (a) The Department may, after notice and a hearing,
revoke, | ||||||
15 | cancel, or suspend the license of any distributor or retailer | ||||||
16 | who violates any of
the provisions of this Act. The notice | ||||||
17 | shall specify the alleged violation or
violations upon which | ||||||
18 | the revocation, cancellation, or suspension proceeding is
| ||||||
19 | based.
| ||||||
20 | (b) The Department may revoke, cancel, or suspend the | ||||||
21 | license of any
distributor for a violation of the Tobacco | ||||||
22 | Product Manufacturers' Escrow
Enforcement Act as provided in | ||||||
23 | Section 20 of that Act.
| ||||||
24 | (c) The Department shall suspend for 7 days the license of |
| |||||||
| |||||||
1 | a
retailer for a first violation of the Sale of Tobacco to | ||||||
2 | Minors Act, as provided in Section 3 of that Act. | ||||||
3 | The Department shall suspend for 30 days the license of a
| ||||||
4 | retailer for a second violation of the Sale of Tobacco to | ||||||
5 | Minors Act, as provided in Section 3 of that Act. | ||||||
6 | The Department shall revoke the license of a retailer for a | ||||||
7 | third or subsequent violation of the Sale of Tobacco to Minors | ||||||
8 | Act, as provided in Section 3 of that Act. | ||||||
9 | (d) The Department may, by application to any circuit | ||||||
10 | court, obtain an injunction
restraining any person who engages | ||||||
11 | in business as a distributor of tobacco
products without a | ||||||
12 | license (either because his or her license has been revoked,
| ||||||
13 | canceled, or suspended or because of a failure to obtain a | ||||||
14 | license in the first
instance) from engaging in that business | ||||||
15 | until that person, as if that person
were a new applicant for a | ||||||
16 | license, complies with all of the conditions,
restrictions, and | ||||||
17 | requirements of Section 10-20 (for a distributor's license) or | ||||||
18 | Section 10-21 (for a retailer's license) of this Act and | ||||||
19 | qualifies for
and obtains a license. Refusal or neglect to obey | ||||||
20 | the order of the court may
result in punishment for contempt.
| ||||||
21 | (Source: P.A. 92-737, eff. 7-25-02.)
| ||||||
22 | (35 ILCS 143/10-30)
| ||||||
23 | Sec. 10-30. Returns. | ||||||
24 | (a) Every distributor shall, on or before the 15th day of
| ||||||
25 | each month, file a return with the Department covering the |
| |||||||
| |||||||
1 | preceding calendar
month. The return shall disclose the | ||||||
2 | wholesale price for tobacco products sold
or otherwise disposed | ||||||
3 | of and other information that the Department may
reasonably | ||||||
4 | require. The return shall be filed upon a form prescribed and
| ||||||
5 | furnished by the Department.
| ||||||
6 | At the time when any return of any distributor is due to be | ||||||
7 | filed with
the Department, the distributor shall also remit to | ||||||
8 | the Department the
tax liability that the distributor has | ||||||
9 | incurred for transactions
occurring in the preceding calendar | ||||||
10 | month.
| ||||||
11 | (b) A retailer who possesses, acquires, or purchases | ||||||
12 | tobacco products on which the tax imposed by this Act has not | ||||||
13 | been paid shall file a return and pay the tax in a format and at | ||||||
14 | a time prescribed by the Department by rule. | ||||||
15 | (Source: P.A. 89-21, eff. 6-6-95.)
| ||||||
16 | (35 ILCS 143/10-35)
| ||||||
17 | Sec. 10-35. Record keeping. | ||||||
18 | (a) Every distributor, as defined in Section 10-5,
shall | ||||||
19 | keep complete and accurate records of tobacco products held, | ||||||
20 | purchased,
manufactured, brought in or caused to be brought in | ||||||
21 | from without the State, and
tobacco products sold, or otherwise | ||||||
22 | disposed of, and shall preserve and keep
all invoices, bills of | ||||||
23 | lading, sales records, and copies of bills
of sale, the | ||||||
24 | wholesale price for tobacco products sold or otherwise disposed
| ||||||
25 | of, an inventory of tobacco products prepared as of December 31 |
| |||||||
| |||||||
1 | of each year or
as of the last day of the distributor's fiscal | ||||||
2 | year if he or she files federal
income tax returns on the basis | ||||||
3 | of a fiscal year, and other pertinent papers
and documents | ||||||
4 | relating to the manufacture, purchase, sale, or disposition of
| ||||||
5 | tobacco products. Every sales invoice issued by a licensed | ||||||
6 | distributor to a retailer in this State shall contain the | ||||||
7 | distributor's Tobacco Products License number. | ||||||
8 | (b) Every retailer, as defined in Section 10-5, shall keep | ||||||
9 | within Illinois, at his or her licensed address, complete and | ||||||
10 | accurate records of tobacco products held, purchased, sold, or | ||||||
11 | otherwise disposed of, and shall preserve and keep all | ||||||
12 | invoices, bills of lading, sales records, copies of bills of | ||||||
13 | sale, returns, and other pertinent papers and documents | ||||||
14 | relating to the purchase, sale, or disposition of tobacco | ||||||
15 | products. | ||||||
16 | (c) Books, records, papers, and documents that are
required | ||||||
17 | by this Act to be kept shall, at all times during the usual | ||||||
18 | business
hours of the day, be subject to inspection by the | ||||||
19 | Department or its duly
authorized agents and employees. The | ||||||
20 | books, records, papers, and documents for
any period with | ||||||
21 | respect to which the Department is authorized to issue a notice
| ||||||
22 | of tax liability shall be preserved until the expiration of | ||||||
23 | that period.
| ||||||
24 | (Source: P.A. 89-21, eff. 6-6-95.)
| ||||||
25 | (35 ILCS 143/10-36 new) |
| |||||||
| |||||||
1 | Sec. 10-36. Proof of payment of tax imposed by this Act. | ||||||
2 | Every licensed distributor of tobacco products in this State is | ||||||
3 | required to show proof of the tax having been paid as required | ||||||
4 | by this Act by displaying his or her Tobacco Products License | ||||||
5 | number on every sales invoice issued to a retailer in this | ||||||
6 | State. No retailer shall possess tobacco products without | ||||||
7 | either (i) a proper invoice indicating that the tobacco | ||||||
8 | products tax was paid by a distributor for the tobacco products | ||||||
9 | in the retailer's possession or (ii) proof that the tax was | ||||||
10 | paid by the retailer if it has purchased tobacco products on | ||||||
11 | which tax has not been paid as required by this Act. Failure to | ||||||
12 | comply with the provisions of this Section may be grounds for | ||||||
13 | revocation of a distributor's or retailer's license in | ||||||
14 | accordance with Section 10-25 of this Act or Section 6 of the | ||||||
15 | Cigarette Tax Act. In addition, the Department may impose a | ||||||
16 | civil penalty not to exceed $1000 for each violation, which | ||||||
17 | shall be deposited into the Tax Compliance and Administration | ||||||
18 | Fund.
| ||||||
19 | (35 ILCS 143/10-50)
| ||||||
20 | Sec. 10-50. Violations and penalties. | ||||||
21 | (a) When the amount due is under $300,
any distributor who | ||||||
22 | fails to file a return, willfully wilfully fails or refuses to
| ||||||
23 | make any payment to the Department of the tax imposed by this | ||||||
24 | Act, or files
a fraudulent return, or any officer or agent of a | ||||||
25 | corporation engaged in the
business of distributing tobacco |
| |||||||
| |||||||
1 | products to retailers and consumers
located in this State who | ||||||
2 | signs a fraudulent
return filed on behalf of the corporation, | ||||||
3 | or any accountant or other agent
who knowingly enters false | ||||||
4 | information on the return of any taxpayer under this
Act is | ||||||
5 | guilty of a Class 4 felony.
| ||||||
6 | (b) Any person who violates any provision of Section 10-20 , | ||||||
7 | 10-21, or 10-22 of this Act, fails
to keep books and records as | ||||||
8 | required under this Act, or willfully wilfully violates a
rule | ||||||
9 | or regulation of the Department for the administration and | ||||||
10 | enforcement of
this Act is guilty of a Class 4 felony. A person | ||||||
11 | commits a separate offense on
each day that he or she engages | ||||||
12 | in business in violation of Section 10-20 , 10-21 or 10-22 of
| ||||||
13 | this Act.
| ||||||
14 | (c) When the amount due is under $300, any person who | ||||||
15 | accepts money that is due
to the Department under this Act from | ||||||
16 | a taxpayer for the purpose of acting as
the taxpayer's agent to | ||||||
17 | make the payment to the Department, but who fails to
remit the | ||||||
18 | payment to the Department when due, is guilty of a Class 4 | ||||||
19 | felony.
| ||||||
20 | (d) When the amount due is $300 or more, any distributor | ||||||
21 | who files,
or causes to be filed, a fraudulent return, or any | ||||||
22 | officer or agent of a
corporation engaged in the business of | ||||||
23 | distributing tobacco products
to retailers and consumers | ||||||
24 | located in this State who files or causes to be
filed or signs | ||||||
25 | or causes
to be signed a fraudulent return filed on behalf of | ||||||
26 | the corporation, or
any accountant or other agent who knowingly |
| |||||||
| |||||||
1 | enters false information on
the return of any taxpayer under | ||||||
2 | this Act is guilty of a Class 3 felony.
| ||||||
3 | (e) When the amount due is $300 or more, any person engaged | ||||||
4 | in the business
of distributing tobacco products to retailers | ||||||
5 | and consumers located in this
State who fails to file a return, | ||||||
6 | willfully
wilfully fails or refuses to make any payment to the | ||||||
7 | Department of the tax
imposed by this Act, or accepts money | ||||||
8 | that is due to the Department under
this Act from a taxpayer | ||||||
9 | for the purpose of acting as the taxpayer's agent to
make | ||||||
10 | payment to the Department but fails to remit such payment to | ||||||
11 | the
Department when due is guilty of a Class 3 felony.
| ||||||
12 | (f) When the amount due is under $300, any retailer who | ||||||
13 | fails to file a return, willfully fails or refuses to make any | ||||||
14 | payment to the Department of the tax imposed by this Act, or | ||||||
15 | files a fraudulent return, or any officer or agent of a | ||||||
16 | corporation engaged in the retail business of selling tobacco | ||||||
17 | products to purchasers of tobacco products for use and | ||||||
18 | consumption located in this State who signs a fraudulent return | ||||||
19 | filed on behalf of the corporation, or any accountant or other | ||||||
20 | agent who knowingly enters false information on the return of | ||||||
21 | any taxpayer under this Act is guilty of a Class 4 felony. | ||||||
22 | (g) When the amount due is $300 or more, any retailer who | ||||||
23 | fails to file a return, willfully fails or refuses to make any | ||||||
24 | payment to the Department of the tax imposed by this Act, or | ||||||
25 | files a fraudulent return, or any officer or agent of a | ||||||
26 | corporation engaged in the retail business of selling tobacco |
| |||||||
| |||||||
1 | products to purchasers of tobacco products for use and | ||||||
2 | consumption located in this State who signs a fraudulent return | ||||||
3 | filed on behalf of the corporation, or any accountant or other | ||||||
4 | agent who knowingly enters false information on the return of | ||||||
5 | any taxpayer under this Act is guilty of a Class 3 felony. | ||||||
6 | (h) Any person whose principal place of business is in this | ||||||
7 | State and
who is charged with a violation under this Section | ||||||
8 | shall be
tried in the county where his or her principal place | ||||||
9 | of business is
located unless he or she asserts a right to be | ||||||
10 | tried in another venue.
If the taxpayer does not have his or | ||||||
11 | her principal place of business
in this State, however, the | ||||||
12 | hearing must be held in Sangamon County unless
the taxpayer | ||||||
13 | asserts a right to be tried in another venue.
| ||||||
14 | (i) Any taxpayer or agent of a taxpayer who with the intent | ||||||
15 | to defraud
purports to make a payment due to the Department by | ||||||
16 | issuing or delivering a
check or other order upon a real or | ||||||
17 | fictitious depository for the payment
of money, knowing that it | ||||||
18 | will not be paid by the depository, is
guilty of a deceptive | ||||||
19 | practice in violation of Section 17-1 of the Criminal
Code of | ||||||
20 | 1961.
| ||||||
21 | (j) A prosecution for a violation described in this Section | ||||||
22 | may be commenced
within 3 years after the commission of the act | ||||||
23 | constituting the violation.
| ||||||
24 | (Source: P.A. 92-231, eff. 8-2-01.)
| ||||||
25 | (35 ILCS 143/10-53 new) |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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1 | Sec. 10-53. Acting as a retailer of tobacco products | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
2 | without a license. Any person who knowingly acts as a retailer | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
3 | of tobacco products in this State without first having obtained | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
4 | a license to do so in compliance with Section 10-21 of this Act | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
5 | or a license in compliance with Section 4d of the Cigarette Tax | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
6 | Act shall be guilty of a Class 4 felony.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
7 | Section 940. The Sale of Tobacco to Minors Act is amended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
8 | by adding Section 3 as follows: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
9 | (720 ILCS 675/3 new)
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
10 | Sec. 3. Additional penalties for retailers. In addition to | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
11 | the penalties provided in Section 2 of this Act, if a person | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
12 | who is a licensed retailer under the Cigarette Tax Act or the | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
13 | Tobacco Products Tax Act of 1995 commits a violation of this | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
14 | Act, that person's retailer's license shall be: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
15 | (1) suspended for 7 days for a first violation of this | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
16 | Act; | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
17 | (2) suspended for 30 days for a second violation of | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
18 | this Act; and | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
19 | (3) revoked for a third or subsequent violation of this | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
20 | Act.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||