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| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB3097 Introduced 2/1/2012, by Sen. Christine Radogno SYNOPSIS AS INTRODUCED: | | |
Amends the Illinois Municipal Code. Makes a technical change in a Section
concerning taxes on soft drinks imposed by home rule municipalities.
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| | A BILL FOR |
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1 | | AN ACT concerning local government.
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2 | | Be it enacted by the People of the State of Illinois, |
3 | | represented in the General Assembly:
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4 | | Section 5. The Illinois Municipal Code is amended by |
5 | | changing Section 8-11-6b as follows:
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6 | | (65 ILCS 5/8-11-6b)
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7 | | Sec. 8-11-6b. Home rule soft drink taxes.
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8 | | (a) Except as provided in Sections 8-11-1, 8-11-5 and
and |
9 | | 8-11-6, or as provided
in this Section, no home rule |
10 | | municipality has the authority to impose,
pursuant to its home |
11 | | rule authority, a tax on the sale, purchase, or use of
soft
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12 | | drinks regardless of whether the measure of the tax is selling |
13 | | price, purchase
price, gross receipts, unit of volumetric |
14 | | measure, or any other measure. For
purposes of this subsection, |
15 | | the
term "soft drink" has the meaning set forth in Section 2-10 |
16 | | of the
Retailers' Occupation Tax Act, as may be amended from |
17 | | time to time, except that
the term shall not be limited to |
18 | | drinks contained in a closed or sealed bottle,
can, carton, or |
19 | | container. This Section is a denial and limitation, under
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20 | | subsection
(g) of Section 6 of Article VII of the Illinois |
21 | | Constitution, on the power of
home rule units to tax. |
22 | | (b) The corporate authorities of a home rule municipality
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23 | | with a population in excess of 1,000,000 may impose a tax, |
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1 | | which shall not take
effect prior to April 1, 1994, upon all |
2 | | persons engaged in the business of
selling soft drinks (other |
3 | | than fountain soft drinks) at retail in the
municipality based |
4 | | on the gross receipts from those sales made in the course of
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5 | | such business. If imposed, the tax shall only be in 1/4% |
6 | | increments and shall
not exceed 3%. For purposes of this |
7 | | subsection, the term "soft drink"
has the meaning set forth in
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8 | | Section 2-10 of the Retailers' Occupation Tax Act, as may be |
9 | | amended from time
to time, except that the term shall not be |
10 | | limited to drinks contained in a
closed or sealed bottle, can, |
11 | | carton or container; the term "fountain soft
drinks" means soft |
12 | | drinks which are prepared by the retail seller of the
soft |
13 | | drinks by mixing syrup or concentrate with water, by hand or |
14 | | through a
soft drink dispensing machine, at or near the point |
15 | | and time of sale to the
retail purchaser; and the term "soft |
16 | | drink dispensing machine" means
a device which mixes soft
drink |
17 | | syrup or concentrate with water and
dispenses the mixture into |
18 | | an open container as a ready to drink soft drink.
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19 | | The tax imposed under this subsection and all civil |
20 | | penalties that may be
assessed as an incident to that tax shall |
21 | | be collected and enforced by the
Illinois Department of |
22 | | Revenue. The Department shall have full power to
administer and |
23 | | enforce this subsection, to collect all taxes and penalties so
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24 | | collected in the manner provided in this subsection, and to |
25 | | determine all
rights to credit memoranda arising on account of |
26 | | the erroneous payment of tax
or penalty under this subsection. |
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1 | | In the administration of and compliance with
this subsection, |
2 | | the Department and persons who are subject to this subsection
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3 | | shall have the same rights, remedies, privileges, immunities, |
4 | | powers and
duties, shall be subject to the same conditions, |
5 | | restrictions, limitations,
penalties, exclusions, exemptions, |
6 | | and definitions of terms, and shall employ
the same modes of |
7 | | procedure applicable to the Retailers' Occupation Tax as are
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8 | | prescribed in Sections 1, 2 through 2-65 (in respect to all |
9 | | provisions of those
Sections other than the State rate of |
10 | | taxes), 2c, 2h, 2i, 3 (except as to the
disposition of taxes |
11 | | and penalties collected), 4, 5, 5a, 5b, 5c, 5d, 5e, 5f,
5g, 5i, |
12 | | 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, 11, 12, 13 and, until January 1, |
13 | | 1994,
13.5 of the Retailers' Occupation Tax Act, and on and |
14 | | after January 1, 1994,
all applicable provisions of the
Uniform |
15 | | Penalty and Interest Act that are not inconsistent with this
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16 | | subsection, as fully as if provisions contained in those |
17 | | Sections of the
Retailers' Occupation Tax Act were set forth in |
18 | | this subsection.
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19 | | Persons subject to any tax imposed under the authority |
20 | | granted by this
subsection may reimburse themselves for their |
21 | | seller's tax liability under this
subsection by separately |
22 | | stating that tax as an additional charge, which charge
may be |
23 | | stated in combination, in a single amount, with State taxes |
24 | | that sellers
are required to collect under the Use Tax Act |
25 | | pursuant to bracket schedules as
the Department may prescribe. |
26 | | The retailer filing the return shall, at the
time of filing the |
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1 | | return, pay to the Department the amount of tax imposed
under |
2 | | this subsection, less the discount of 1.75%, which is allowed |
3 | | to
reimburse the retailer for the expenses incurred in keeping |
4 | | records, preparing
the filing returns, remitting the tax, and |
5 | | supplying data to the Department on
request.
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6 | | Whenever the Department determines that a refund should be |
7 | | made under this
subsection to a claimant instead of issuing a |
8 | | credit memoranda, the Department
shall notify the State |
9 | | Comptroller, who shall cause a warrant to be drawn for
the |
10 | | amount specified and to the person named in the notification |
11 | | from the
Department. The refund shall be paid by the State |
12 | | Treasurer out of the Home
Rule Municipal Soft Drink Retailers' |
13 | | Occupation Tax Fund.
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14 | | The Department shall forthwith pay over to the State |
15 | | Treasurer, ex officio,
as trustee, all taxes and penalties |
16 | | collected hereunder. On or before the 25th
day of each calendar
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17 | | month, the Department shall prepare and certify to the |
18 | | Comptroller the amount
to be paid to named municipalities, the |
19 | | municipalities to be those from which
retailers have paid taxes |
20 | | or penalties hereunder to the Department during the
second |
21 | | preceding calendar month. The amount to be paid to each |
22 | | municipality
shall be the amount collected hereunder during the |
23 | | second preceding calendar
month by the Department, less any |
24 | | amounts determined by the Department to be
necessary for the |
25 | | payment of refunds, and less 4% for the first year the tax is
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26 | | in effect and 2% thereafter of such balance, which sum
shall be |
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1 | | deposited by the State Treasurer into the Tax Compliance and
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2 | | Administration Fund in the State treasury from which it shall |
3 | | be appropriated
to the Department to cover the costs of the |
4 | | Department in administering and
enforcing the provisions of |
5 | | this subsection. Within 10 days after
receipt by the |
6 | | Comptroller of the certification, the Comptroller shall cause
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7 | | the orders to be drawn for the respective amount in accordance |
8 | | with the
directions contained in such certification.
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9 | | Nothing in this Section shall be construed to authorize a |
10 | | municipality to
impose a tax upon the privilege of engaging in |
11 | | any business which under the
Constitution of the United States |
12 | | may not be made the subject of taxation by
the State.
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13 | | A certificate of registration issued by the Illinois |
14 | | Department of Revenue to
a retailer under the Retailers' |
15 | | Occupation Tax Act shall permit the registrant
to engage in a |
16 | | business that is taxed under the tax imposed under this
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17 | | subsection and no additional registration shall be required |
18 | | under the ordinance
imposing a tax or under this subsection.
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19 | | A certified copy of any ordinance imposing or discontinuing |
20 | | any tax under
this subsection or effecting a change in the rate |
21 | | of that tax shall be filed
with the Department, whereupon the |
22 | | Department shall proceed to administer and
enforce this |
23 | | subsection on behalf of such municipality as of the first day |
24 | | of
February following the date of filing. This tax shall be |
25 | | known and cited as
the Home Rule Municipal Soft Drink |
26 | | Retailers' Occupation Tax.
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1 | | (c) The corporate authorities of a home rule
municipality |
2 | | with a population in excess of 1,000,000 may impose a tax, |
3 | | which
shall not take effect prior to April 1, 1994, on persons |
4 | | engaged in the
business of selling fountain soft drinks at |
5 | | retail at a rate not to exceed 9%
of the cost price of the |
6 | | fountain soft drinks at retail in such municipality.
For |
7 | | purposes of this subsection, the term "soft drink" has the |
8 | | meaning set
forth in Section 2-10 of the
Retailers' Occupation |
9 | | Tax Act, as may be amended from time to time, except that
the |
10 | | term shall not be limited to drinks contained in a closed or |
11 | | sealed bottle,
can,
carton, or container; the term "fountain |
12 | | soft drinks" means soft drinks
which are prepared by the retail |
13 | | seller of the soft drinks by mixing soft drink
syrup or |
14 | | concentrate with water, by hand or through a soft drink |
15 | | dispensing
machine at or near the point and time of sale to the |
16 | | retail purchaser; the term
"soft
drink dispensing machine" |
17 | | means a device which mixes soft drink syrup or
concentrate with |
18 | | water and dispenses such mixture into an open container as a
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19 | | ready to drink soft drink; the term "sold at retail" shall mean |
20 | | any transfer
of the ownership or title to tangible personal |
21 | | property to a purchaser, for the
purpose of use or consumption, |
22 | | and not for the purpose of resale, for valuable
consideration;
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23 | | the term "cost price of
the fountain soft drinks" means the |
24 | | consideration paid by the retail
seller of the fountain soft |
25 | | drink, valued in money, whether paid in money or
otherwise, |
26 | | including cash, credits and services, and shall be determined
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1 | | without any deduction on account of the supplier's cost of the |
2 | | property sold or
on account or any other expenses incurred by |
3 | | the supplier, for the purchase of
soft drink syrup or |
4 | | concentrate which is designed to be further mixed with
water |
5 | | before it is consumed as a soft drink; and the term "supplier" |
6 | | means
any person who makes sales of soft drink syrup or |
7 | | concentrate to a retail
seller of fountain soft drinks for |
8 | | purposes of resale as fountain soft drinks.
The tax authorized |
9 | | by this subsection shall be collected, enforced, and
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10 | | administered by the municipality imposing the tax. Persons |
11 | | subject to the tax
may reimburse themselves for their tax
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12 | | liability
hereunder by separately stating an amount equal to |
13 | | the tax as an additional
charge to their retail purchasers or |
14 | | may include such amount as part of the
selling price of the |
15 | | soft drink. The municipality imposing the tax shall
provide for |
16 | | its collection from the person subject
to the tax by requiring |
17 | | that the supplier to the person subject to the tax
collect and |
18 | | remit the tax to the municipality. If the supplier fails to
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19 | | collect the tax or if the person subject to the tax fails to |
20 | | pay the tax to its
supplier, the person subject to the tax |
21 | | shall make the tax payment directly to
the municipality. |
22 | | Payment of the tax by the retailer to the supplier shall
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23 | | relieve the retailer of any further liability for the tax.
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24 | | (d) If either tax imposed or authorized by this Section |
25 | | 8-11-6b is repealed
by the General Assembly or has its maximum |
26 | | rate reduced by the General
Assembly, or is declared unlawful |
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1 | | or unconstitutional on its face by any court
of competent |
2 | | jurisdiction after all appeals have been exhausted or the time |
3 | | to
appeal has expired, then this Section 8-11-6b is |
4 | | automatically repealed
and no longer effective without further |
5 | | action by the General Assembly.
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6 | | (e) Notwithstanding the preemption of taxes on the sale, |
7 | | purchase or use
of soft drinks, taxes on the sale, purchase, or |
8 | | use of soft drinks which had
been imposed by a municipality |
9 | | prior to the effective date of this amendatory
Act of 1993 are |
10 | | specifically authorized under this Section for sales made on or
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11 | | after the effective date of this amendatory Act of 1993 through |
12 | | March 31,
1994.
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13 | | (Source: P.A. 88-507.)
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