97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB2991

 

Introduced 2/23/2011, by Rep. Michael J. Zalewski

 

SYNOPSIS AS INTRODUCED:
 
35 ILCS 120/2a  from Ch. 120, par. 441a

    Amends the Retailers' Occupation Tax Act. Requires retailers to verify the total number of vending machines used in the retailer's business upon request of the Department. Requires a retailer to request an additional sub-certificate or sub-certificates if he or she increases the number of vending machines used in the business.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning revenue.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Retailers' Occupation Tax Act is amended by
5changing Section 2a as follows:
 
6    (35 ILCS 120/2a)  (from Ch. 120, par. 441a)
7    Sec. 2a. It is unlawful for any person to engage in the
8business of selling tangible personal property at retail in
9this State without a certificate of registration from the
10Department. Application for a certificate of registration
11shall be made to the Department upon forms furnished by it.
12Each such application shall be signed and verified and shall
13state: (1) the name and social security number of the
14applicant; (2) the address of his principal place of business;
15(3) the address of the principal place of business from which
16he engages in the business of selling tangible personal
17property at retail in this State and the addresses of all other
18places of business, if any (enumerating such addresses, if any,
19in a separate list attached to and made a part of the
20application), from which he engages in the business of selling
21tangible personal property at retail in this State; (4) the
22name and address of the person or persons who will be
23responsible for filing returns and payment of taxes due under

 

 

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1this Act; (5) in the case of a corporation, the name, title,
2and social security number of each corporate officer; (6) in
3the case of a limited liability company, the name, social
4security number, and FEIN number of each manager and member;
5and (7) such other information as the Department may reasonably
6require. The application shall contain an acceptance of
7responsibility signed by the person or persons who will be
8responsible for filing returns and payment of the taxes due
9under this Act. If the applicant will sell tangible personal
10property at retail through vending machines, his application to
11register shall indicate the number of vending machines to be so
12operated. If requested by the Department at any time, that
13person shall verify the total number of vending machines he or
14she uses in his or her business of selling tangible personal
15property at retail. ; and thereafter, he shall notify the
16Department by January 31 of the number of vending machines
17which such person was using in his business of selling tangible
18personal property at retail on the preceding December 31.
19    The Department may deny a certificate of registration to
20any applicant if the owner, any partner, any manager or member
21of a limited liability company, or a corporate officer of the
22applicant, is or has been the owner, a partner, a manager or
23member of a limited liability company, or a corporate officer,
24of another retailer that is in default for moneys due under
25this Act.
26    The Department may require an applicant for a certificate

 

 

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1of registration hereunder to, at the time of filing such
2application, furnish a bond from a surety company authorized to
3do business in the State of Illinois, or an irrevocable bank
4letter of credit or a bond signed by 2 personal sureties who
5have filed, with the Department, sworn statements disclosing
6net assets equal to at least 3 times the amount of the bond to
7be required of such applicant, or a bond secured by an
8assignment of a bank account or certificate of deposit, stocks
9or bonds, conditioned upon the applicant paying to the State of
10Illinois all moneys becoming due under this Act and under any
11other State tax law or municipal or county tax ordinance or
12resolution under which the certificate of registration that is
13issued to the applicant under this Act will permit the
14applicant to engage in business without registering separately
15under such other law, ordinance or resolution. In making a
16determination as to whether to require a bond or other
17security, the Department shall take into consideration whether
18the owner, any partner, any manager or member of a limited
19liability company, or a corporate officer of the applicant is
20or has been the owner, a partner, a manager or member of a
21limited liability company, or a corporate officer of another
22retailer that is in default for moneys due under this Act or
23any other tax or fee Act administered by the Department; and
24whether the owner, any partner, any manager or member of a
25limited liability company, or a corporate officer of the
26applicant is or has been the owner, a partner, a manager or

 

 

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1member of a limited liability company, or a corporate officer
2of another retailer whose certificate of registration has been
3revoked within the previous 5 years under this Act or any other
4tax or fee Act administered by the Department. If a bond or
5other security is required, the Department shall fix the amount
6of the bond or other security, taking into consideration the
7amount of money expected to become due from the applicant under
8this Act and under any other State tax law or municipal or
9county tax ordinance or resolution under which the certificate
10of registration that is issued to the applicant under this Act
11will permit the applicant to engage in business without
12registering separately under such other law, ordinance, or
13resolution. The amount of security required by the Department
14shall be such as, in its opinion, will protect the State of
15Illinois against failure to pay the amount which may become due
16from the applicant under this Act and under any other State tax
17law or municipal or county tax ordinance or resolution under
18which the certificate of registration that is issued to the
19applicant under this Act will permit the applicant to engage in
20business without registering separately under such other law,
21ordinance or resolution, but the amount of the security
22required by the Department shall not exceed three times the
23amount of the applicant's average monthly tax liability, or
24$50,000.00, whichever amount is lower.
25    No certificate of registration under this Act shall be
26issued by the Department until the applicant provides the

 

 

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1Department with satisfactory security, if required, as herein
2provided for.
3    Upon receipt of the application for certificate of
4registration in proper form, and upon approval by the
5Department of the security furnished by the applicant, if
6required, the Department shall issue to such applicant a
7certificate of registration which shall permit the person to
8whom it is issued to engage in the business of selling tangible
9personal property at retail in this State. The certificate of
10registration shall be conspicuously displayed at the place of
11business which the person so registered states in his
12application to be the principal place of business from which he
13engages in the business of selling tangible personal property
14at retail in this State.
15    No certificate of registration issued to a taxpayer who
16files returns required by this Act on a monthly basis shall be
17valid after the expiration of 5 years from the date of its
18issuance or last renewal. The expiration date of a
19sub-certificate of registration shall be that of the
20certificate of registration to which the sub-certificate
21relates. A certificate of registration shall automatically be
22renewed, subject to revocation as provided by this Act, for an
23additional 5 years from the date of its expiration unless
24otherwise notified by the Department as provided by this
25paragraph. Where a taxpayer to whom a certificate of
26registration is issued under this Act is in default to the

 

 

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1State of Illinois for delinquent returns or for moneys due
2under this Act or any other State tax law or municipal or
3county ordinance administered or enforced by the Department,
4the Department shall, not less than 120 days before the
5expiration date of such certificate of registration, give
6notice to the taxpayer to whom the certificate was issued of
7the account period of the delinquent returns, the amount of
8tax, penalty and interest due and owing from the taxpayer, and
9that the certificate of registration shall not be automatically
10renewed upon its expiration date unless the taxpayer, on or
11before the date of expiration, has filed and paid the
12delinquent returns or paid the defaulted amount in full. A
13taxpayer to whom such a notice is issued shall be deemed an
14applicant for renewal. The Department shall promulgate
15regulations establishing procedures for taxpayers who file
16returns on a monthly basis but desire and qualify to change to
17a quarterly or yearly filing basis and will no longer be
18subject to renewal under this Section, and for taxpayers who
19file returns on a yearly or quarterly basis but who desire or
20are required to change to a monthly filing basis and will be
21subject to renewal under this Section.
22    The Department may in its discretion approve renewal by an
23applicant who is in default if, at the time of application for
24renewal, the applicant files all of the delinquent returns or
25pays to the Department such percentage of the defaulted amount
26as may be determined by the Department and agrees in writing to

 

 

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1waive all limitations upon the Department for collection of the
2remaining defaulted amount to the Department over a period not
3to exceed 5 years from the date of renewal of the certificate;
4however, no renewal application submitted by an applicant who
5is in default shall be approved if the immediately preceding
6renewal by the applicant was conditioned upon the installment
7payment agreement described in this Section. The payment
8agreement herein provided for shall be in addition to and not
9in lieu of the security that may be required by this Section of
10a taxpayer who is no longer considered a prior continuous
11compliance taxpayer. The execution of the payment agreement as
12provided in this Act shall not toll the accrual of interest at
13the statutory rate.
14    The Department may suspend a certificate of registration if
15the Department finds that the person to whom the certificate of
16registration has been issued knowingly sold contraband
17cigarettes.
18    A certificate of registration issued under this Act more
19than 5 years before the effective date of this amendatory Act
20of 1989 shall expire and be subject to the renewal provisions
21of this Section on the next anniversary of the date of issuance
22of such certificate which occurs more than 6 months after the
23effective date of this amendatory Act of 1989. A certificate of
24registration issued less than 5 years before the effective date
25of this amendatory Act of 1989 shall expire and be subject to
26the renewal provisions of this Section on the 5th anniversary

 

 

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1of the issuance of the certificate.
2    If the person so registered states that he operates other
3places of business from which he engages in the business of
4selling tangible personal property at retail in this State, the
5Department shall furnish him with a sub-certificate of
6registration for each such place of business, and the applicant
7shall display the appropriate sub-certificate of registration
8at each such place of business. All sub-certificates of
9registration shall bear the same registration number as that
10appearing upon the certificate of registration to which such
11sub-certificates relate.
12    If the applicant will sell tangible personal property at
13retail through vending machines, the Department shall furnish
14him with a sub-certificate of registration for each such
15vending machine, and the applicant shall display the
16appropriate sub-certificate of registration on each such
17vending machine by attaching the sub-certificate of
18registration to a conspicuous part of such vending machine. If
19a person who is registered to sell tangible personal property
20at retail through vending machines adds an additional vending
21machine or additional vending machines to the number of vending
22machines he or she uses in his or her business of selling
23tangible personal property at retail, he or she shall notify
24the Department, on a form prescribed by the Department, to
25request an additional sub-certificate or additional
26sub-certificates of registration, as applicable. With each

 

 

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1such request, the applicant shall report the number of
2sub-certificates of registration he or she is requesting as
3well as the total number of vending machines from which he or
4she makes retail sales.
5    Where the same person engages in 2 or more businesses of
6selling tangible personal property at retail in this State,
7which businesses are substantially different in character or
8engaged in under different trade names or engaged in under
9other substantially dissimilar circumstances (so that it is
10more practicable, from an accounting, auditing or bookkeeping
11standpoint, for such businesses to be separately registered),
12the Department may require or permit such person (subject to
13the same requirements concerning the furnishing of security as
14those that are provided for hereinbefore in this Section as to
15each application for a certificate of registration) to apply
16for and obtain a separate certificate of registration for each
17such business or for any of such businesses, under a single
18certificate of registration supplemented by related
19sub-certificates of registration.
20    Any person who is registered under the "Retailers'
21Occupation Tax Act" as of March 8, 1963, and who, during the
223-year period immediately prior to March 8, 1963, or during a
23continuous 3-year period part of which passed immediately
24before and the remainder of which passes immediately after
25March 8, 1963, has been so registered continuously and who is
26determined by the Department not to have been either delinquent

 

 

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1or deficient in the payment of tax liability during that period
2under this Act or under any other State tax law or municipal or
3county tax ordinance or resolution under which the certificate
4of registration that is issued to the registrant under this Act
5will permit the registrant to engage in business without
6registering separately under such other law, ordinance or
7resolution, shall be considered to be a Prior Continuous
8Compliance taxpayer. Also any taxpayer who has, as verified by
9the Department, faithfully and continuously complied with the
10condition of his bond or other security under the provisions of
11this Act for a period of 3 consecutive years shall be
12considered to be a Prior Continuous Compliance taxpayer.
13    Every Prior Continuous Compliance taxpayer shall be exempt
14from all requirements under this Act concerning the furnishing
15of a bond or other security as a condition precedent to his
16being authorized to engage in the business of selling tangible
17personal property at retail in this State. This exemption shall
18continue for each such taxpayer until such time as he may be
19determined by the Department to be delinquent in the filing of
20any returns, or is determined by the Department (either through
21the Department's issuance of a final assessment which has
22become final under the Act, or by the taxpayer's filing of a
23return which admits tax that is not paid to be due) to be
24delinquent or deficient in the paying of any tax under this Act
25or under any other State tax law or municipal or county tax
26ordinance or resolution under which the certificate of

 

 

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1registration that is issued to the registrant under this Act
2will permit the registrant to engage in business without
3registering separately under such other law, ordinance or
4resolution, at which time that taxpayer shall become subject to
5all the financial responsibility requirements of this Act and,
6as a condition of being allowed to continue to engage in the
7business of selling tangible personal property at retail, may
8be required to post bond or other acceptable security with the
9Department covering liability which such taxpayer may
10thereafter incur. Any taxpayer who fails to pay an admitted or
11established liability under this Act may also be required to
12post bond or other acceptable security with this Department
13guaranteeing the payment of such admitted or established
14liability.
15    No certificate of registration shall be issued to any
16person who is in default to the State of Illinois for moneys
17due under this Act or under any other State tax law or
18municipal or county tax ordinance or resolution under which the
19certificate of registration that is issued to the applicant
20under this Act will permit the applicant to engage in business
21without registering separately under such other law, ordinance
22or resolution.
23    Any person aggrieved by any decision of the Department
24under this Section may, within 20 days after notice of such
25decision, protest and request a hearing, whereupon the
26Department shall give notice to such person of the time and

 

 

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1place fixed for such hearing and shall hold a hearing in
2conformity with the provisions of this Act and then issue its
3final administrative decision in the matter to such person. In
4the absence of such a protest within 20 days, the Department's
5decision shall become final without any further determination
6being made or notice given.
7    With respect to security other than bonds (upon which the
8Department may sue in the event of a forfeiture), if the
9taxpayer fails to pay, when due, any amount whose payment such
10security guarantees, the Department shall, after such
11liability is admitted by the taxpayer or established by the
12Department through the issuance of a final assessment that has
13become final under the law, convert the security which that
14taxpayer has furnished into money for the State, after first
15giving the taxpayer at least 10 days' written notice, by
16registered or certified mail, to pay the liability or forfeit
17such security to the Department. If the security consists of
18stocks or bonds or other securities which are listed on a
19public exchange, the Department shall sell such securities
20through such public exchange. If the security consists of an
21irrevocable bank letter of credit, the Department shall convert
22the security in the manner provided for in the Uniform
23Commercial Code. If the security consists of a bank certificate
24of deposit, the Department shall convert the security into
25money by demanding and collecting the amount of such bank
26certificate of deposit from the bank which issued such

 

 

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1certificate. If the security consists of a type of stocks or
2other securities which are not listed on a public exchange, the
3Department shall sell such security to the highest and best
4bidder after giving at least 10 days' notice of the date, time
5and place of the intended sale by publication in the "State
6Official Newspaper". If the Department realizes more than the
7amount of such liability from the security, plus the expenses
8incurred by the Department in converting the security into
9money, the Department shall pay such excess to the taxpayer who
10furnished such security, and the balance shall be paid into the
11State Treasury.
12    The Department shall discharge any surety and shall release
13and return any security deposited, assigned, pledged or
14otherwise provided to it by a taxpayer under this Section
15within 30 days after:
16        (1) such taxpayer becomes a Prior Continuous
17    Compliance taxpayer; or
18        (2) such taxpayer has ceased to collect receipts on
19    which he is required to remit tax to the Department, has
20    filed a final tax return, and has paid to the Department an
21    amount sufficient to discharge his remaining tax
22    liability, as determined by the Department, under this Act
23    and under every other State tax law or municipal or county
24    tax ordinance or resolution under which the certificate of
25    registration issued under this Act permits the registrant
26    to engage in business without registering separately under

 

 

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1    such other law, ordinance or resolution. The Department
2    shall make a final determination of the taxpayer's
3    outstanding tax liability as expeditiously as possible
4    after his final tax return has been filed; if the
5    Department cannot make such final determination within 45
6    days after receiving the final tax return, within such
7    period it shall so notify the taxpayer, stating its reasons
8    therefor.
9(Source: P.A. 95-1053, eff. 1-1-10; 96-1355, eff. 7-28-10.)