HB0391ham001 99TH GENERAL ASSEMBLY

Rep. David Harris

Filed: 3/3/2015

09900HB0391ham001 LRB099 00126 JLS 31790 a

AMENDMENT TO HOUSE BILL 391

AMENDMENT NO. ______. Amend House Bill 391 by replacing everything after the enacting clause with the following:

"Section 5. The Business Corporation Act of 1983 is amended by changing Sections 13.70, 14.30, 15.35, 15.65, 15.97, and 16.05 as follows:

(805 ILCS 5/13.70) (from Ch. 32, par. 13.70)

Sec. 13.70. Transacting business without authority.

(a) No foreign corporation transacting business in this State without authority to do so is permitted to maintain a civil action in any court of this State, until the corporation obtains that authority. Nor shall a civil action be maintained in any court of this State by any successor or assignee of the corporation on any right, claim or demand arising out of the transaction of business by the corporation in this State, until authority to transact business in this State is obtained by the corporation or by a corporation that has acquired all or substantially all of its assets.

(b) The failure of a foreign corporation to obtain authority to transact business in this State does not impair the validity of any contract or act of the corporation, and does not prevent the corporation from defending any action in any court of this State.

(c) A foreign corporation that transacts business in this State without authority is liable to this State, for the years or parts thereof during which it transacted business in this State without authority, in an amount equal to all fees, franchise taxes, penalties and other charges that would have been imposed by this Act upon the corporation had it duly applied for and received authority to transact business in this State as required by this Act, but failed to pay the franchise taxes that would have been computed thereon, and thereafter filed all reports required by this Act; and, if a corporation fails to file an application for authority within 60 days after it commences business in this State, in addition thereto it is liable for a penalty of either 10% of the filing fee, license fee and franchise taxes or $500 $200 plus $25 $5.00 for each month or fraction thereof in which it has continued to transact business in this State without authority therefor, whichever penalty is greater. The Attorney General shall bring proceedings to recover all amounts due this State under this Section.

(d) The Attorney General shall bring an action to restrain a foreign corporation from transacting business in this State, if the authority of the foreign corporation to transact business has been revoked under subsection (m) of Section 13.50 of this Act.

(Source: P.A. 95-515, eff. 8-28-07.)

(805 ILCS 5/14.30) (from Ch. 32, par. 14.30)

Sec. 14.30. Cumulative report of changes in issued shares or paid-in capital.

(a) Each domestic corporation and each foreign corporation authorized to transact business in this State that effects any change in the number of issued shares or the amount of paid-in capital prior to January 1, 2016 that has not theretofore been reported in any report other than an annual report, interim annual report, or final transition annual report, shall execute and file, in accordance with Section 1.10 of this Act, a report with respect to the changes in its issued shares or paid-in capital:

(1) that have occurred subsequent to the last day of the third month preceding its anniversary month in the preceding year and prior to the first day of the second month immediately preceding its anniversary month in the current year; or

(2) in the case of a corporation that has established an extended filing month, that have occurred during its fiscal year; or

(3) in the case of a statutory merger or consolidation or an amendment to the corporation's articles of incorporation that affects the number of issued shares or the amount of paid-in capital, that have occurred between the last day of the third month immediately preceding its anniversary month and the date of the merger, consolidation, or amendment or, in the case of a corporation that has established an extended filing month, that have occurred between the first day of its fiscal year and the date of the merger, consolidation, or amendment; or

(4) in the case of a statutory merger or consolidation or an amendment to the corporation's articles of incorporation that affects the number of issued shares or the amount of paid-in capital, that have occurred between the date of the merger, consolidation, or amendment (but not including the merger, consolidation, or amendment) and the first day of the second month immediately preceding its anniversary month in the current year, or in the case of a corporation that has established an extended filing month, that have occurred between the date of the merger, consolidation or amendment (but not including the merger, consolidation or amendment) and the last day of its fiscal year.

(b) The corporation shall file the report required under subsection (a) not later than (i) the time its annual report is required to be filed in 1992 and in each subsequent year and (ii) not later than the time of filing the articles of merger, consolidation, or amendment to the articles of incorporation that affects the number of issued shares or the amount of paid-in capital of a domestic corporation or the certified copy of merger of a foreign corporation.

(c) The report shall net decreases against increases that occur during the same taxable period. The report shall set forth:

(1) The name of the corporation and the state or country under the laws of which it is organized.

(2) A statement of the aggregate number of shares which the corporation has authority to issue, itemized by classes and series, if any, within a class.

(3) A statement of the aggregate number of issued shares as last reported to the Secretary of State in any document required or permitted by this Act to be filed, other than an annual report, interim annual report or final transition annual report, itemized by classes and series, if any, within a class.

(4) A statement, expressed in dollars, of the amount of paid-in capital of the corporation as last reported to the Secretary of State in any document required or permitted by this Act to be filed, other than an annual report, interim annual report or final transition annual report.

(5) A statement, if applicable, of the aggregate number of shares issued by the corporation not theretofore reported to the Secretary of State as having been issued, and a statement, expressed in dollars, of the value of the entire consideration received, less expenses, including commissions, paid or incurred in connection with the issuance, for, or on account of, the issuance of the shares, itemized by classes, and series, if any, within a class; and in the case of shares issued as a share dividend, the amount added or transferred to the paid-in capital of the corporation for, or on account of, the issuance of the shares; provided, however, that the report shall also include the date of each issuance made prior to the current reporting period, and the number of issued shares and consideration received in each case.

(6) A statement, if applicable, expressed in dollars, of the amount added or transferred to paid-in capital of the corporation without the issuance of shares; provided, however, that the report shall also include the date of each increase made prior to the current reporting period, and the consideration received in each case.

(7) In case of an exchange or reclassification of issued shares resulting in an increase in the amount of paid-in capital, a statement of the manner in which it was effected, and a statement, expressed in dollars, of the amount added or transferred to the paid-in capital of the corporation as a result thereof, except any portion thereof reported under any other subsection of this Section as a part of the consideration received by the corporation for, or on account of, its issued shares; provided, however, that the report shall also include the date of each exchange or reclassification made prior to the current reporting period and the consideration received in each case.

(8) If the consideration received for the issuance of any shares not theretofore reported as having been issued consists of labor or services performed or of property, other than cash, then a statement, expressed in dollars, of the value of that consideration as fixed by the board of directors.

(9) In the case of a cancellation of shares or a reduction in paid-in capital made pursuant to Section 9.20, the aggregate reduction in paid-in capital; provided, however, that the report shall also include the date of each reduction made prior to the current reporting period.

(10) A statement of the aggregate number of issued shares itemized by classes and series, if any, within a class, after giving effect to the changes reported.

(11) A statement, expressed in dollars, of the amount of paid-in capital of the corporation after giving effect to the changes reported.

(d) No additional license fees or franchise taxes shall be payable upon the filing of the report to the extent that license fees or franchise taxes shall have been previously paid by the corporation in respect of shares previously issued which are being exchanged for the shares the issuance of which is being reported, provided those facts are shown in the report.

(e) The report shall be made on forms prescribed and furnished by the Secretary of State.

(f) Until the report under this Section or a report under Section 14.25 shall have been filed in the Office of the Secretary of State showing a reduction in paid-in capital, the basis of the annual franchise tax payable by the corporation shall not be reduced, provided, however, in no event shall the annual franchise tax for any taxable year be reduced if the report is not filed prior to the first day of the anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the corporation of that taxable year and before payment of its annual franchise tax.

(Source: P.A. 90-421, eff. 1-1-98.)

(805 ILCS 5/15.35) (from Ch. 32, par. 15.35)

Sec. 15.35. Franchise taxes payable by domestic corporations. For the privilege of exercising its franchises in this State, each domestic corporation shall pay to the Secretary of State the following franchise taxes, computed on the basis, at the rates and for the periods prescribed in this Act:

(a) An initial franchise tax at the time of filing its first report of issuance of shares.

(b) An additional franchise tax at the time of filing (1) a report of the issuance of additional shares, or (2) a report of an increase in paid-in capital without the issuance of shares, or (3) an amendment to the articles of incorporation or a report of cumulative changes in paid-in capital, whenever any amendment or such report discloses an increase in its paid-in capital over the amount thereof last reported in any document, other than an annual report, interim annual report or final transition annual report required by this Act to be filed in the office of the Secretary of State.

(c) An additional franchise tax at the time of filing a report of paid-in capital following a statutory merger or consolidation, which discloses that the paid-in capital of the surviving or new corporation immediately after the merger or consolidation is greater than the sum of the paid-in capital of all of the merged or consolidated corporations as last reported by them in any documents, other than annual reports, required by this Act to be filed in the office of the Secretary of State; and in addition, the surviving or new corporation shall be liable for a further additional franchise tax on the paid-in capital of each of the merged or consolidated corporations as last reported by them in any document, other than an annual report, required by this Act to be filed with the Secretary of State from their taxable year end to the next succeeding anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the surviving or new corporation; however if the taxable year ends within the 2 month period immediately preceding the anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the surviving or new corporation the tax will be computed to the anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the surviving or new corporation in the next succeeding calendar year.

(d) An annual franchise tax payable each year with the annual report which the corporation is required by this Act to file.

(e) The provisions of this Section shall not apply to require the payment of any franchise tax that would otherwise have been due and payable on or after January 1, 2016. There shall be no refunds or proration of franchise tax for any taxes due and payable prior to January 1, 2016 on the basis that a portion of the corporation's taxable year extends beyond January 1, 2016. This amendatory Act of the 99th General Assembly shall not affect any right accrued or established, or any liability or penalty incurred prior to January 1, 2016.

(Source: P.A. 86-985.)

(805 ILCS 5/15.65) (from Ch. 32, par. 15.65)

Sec. 15.65. Franchise taxes payable by foreign corporations. For the privilege of exercising its authority to transact such business in this State as set out in its application therefor or any amendment thereto, each foreign corporation shall pay to the Secretary of State the following franchise taxes, computed on the basis, at the rates and for the periods prescribed in this Act:

(a) An initial franchise tax at the time of filing its application for authority to transact business in this State.

(b) An additional franchise tax at the time of filing (1) a report of the issuance of additional shares, or (2) a report of an increase in paid-in capital without the issuance of shares, or (3) a report of cumulative changes in paid-in capital or a report of an exchange or reclassification of shares, whenever any such report discloses an increase in its paid-in capital over the amount thereof last reported in any document, other than an annual report, interim annual report or final transition annual report, required by this Act to be filed in the office of the Secretary of State.

(c) Whenever the corporation shall be a party to a statutory merger and shall be the surviving corporation, an additional franchise tax at the time of filing its report following merger, if such report discloses that the amount represented in this State of its paid-in capital immediately after the merger is greater than the aggregate of the amounts represented in this State of the paid-in capital of such of the merged corporations as were authorized to transact business in this State at the time of the merger, as last reported by them in any documents, other than annual reports, required by this Act to be filed in the office of the Secretary of State; and in addition, the surviving corporation shall be liable for a further additional franchise tax on the paid-in capital of each of the merged corporations as last reported by them in any document, other than an annual report, required by this Act to be filed with the Secretary of State, from their taxable year end to the next succeeding anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the surviving corporation; however if the taxable year ends within the 2 month period immediately preceding the anniversary month or the extended filing month of the surviving corporation, the tax will be computed to the anniversary or, extended filing month of the surviving corporation in the next succeeding calendar year.

(d) An annual franchise tax payable each year with any annual report which the corporation is required by this Act to file.

(e) The provisions of this Section shall not apply to require the payment of any franchise tax that would otherwise have been due and payable on or after January 1, 2016. There shall be no refunds or proration of franchise tax for any taxes due and payable prior to January 1, 2016 on the basis that a portion of the corporation's taxable year extends beyond January 1, 2016. This amendatory Act of the 99th General Assembly shall not affect any right accrued or established, or any liability or penalty incurred prior to January 1, 2016.

(Source: P.A. 92-33, eff. 7-1-01.)

(805 ILCS 5/15.97) (from Ch. 32, par. 15.97)

Sec. 15.97. Corporate Franchise Tax Refund Fund.

(a) Beginning July 1, 1993, a percentage of the amounts collected under Sections 15.35, 15.45, 15.65, and 15.75 of this Act shall be deposited into the Corporate Franchise Tax Refund Fund, a special Fund hereby created in the State treasury. From July 1, 1993, until December 31, 1994, there shall be deposited into the Fund 3% of the amounts received under those Sections. Beginning January 1, 1995, and for each fiscal year beginning thereafter, 2% of the amounts collected under those Sections during the preceding fiscal year shall be deposited into the Fund.

(b) Beginning July 1, 1993, moneys in the Fund shall be expended exclusively for the purpose of paying refunds payable because of overpayment of franchise taxes, penalties, or interest under Sections 13.70, 15.35, 15.45, 15.65, 15.75, and 16.05 of this Act and making transfers authorized under this Section. Refunds in accordance with the provisions of subsections (f) and (g) of Section 1.15 and Section 1.17 of this Act may be made from the Fund only to the extent that amounts collected under Sections 15.35, 15.45, 15.65, and 15.75 of this Act have been deposited in the Fund and remain available. Within a reasonable time after the 30th day of June of each year, the Secretary of State shall direct and the Comptroller shall order transferred to the General Revenue Fund all amounts in excess of $100,000 remaining in the fund as of June 30. Notwithstanding the above, for the period commencing on the effective date of this amendatory Act of the 99th General Assembly and continuing through December 31, 2018, amounts in the fund shall not be transferred to the General Revenue Fund and shall be used to pay refunds in accordance with the provisions of this Act. Within a reasonable time after January 1, 2019, the Secretary of State shall direct and the Comptroller shall order transferred to the General Revenue Fund all amounts remaining in the fund.

(c) This Act shall constitute an irrevocable and continuing appropriation from the Corporate Franchise Tax Refund Fund for the purpose of paying refunds upon the order of the Secretary of State in accordance with the provisions of this Section.

(Source: P.A. 93-59, eff. 7-1-03.)

(805 ILCS 5/16.05) (from Ch. 32, par. 16.05)

Sec. 16.05. Penalties and interest imposed upon corporations.

(a) Each corporation, domestic or foreign, that fails or refuses to file any annual report or report of cumulative changes in paid-in capital and pay any franchise tax due pursuant to the report prior to the first day of its anniversary month or, in the case of a corporation which has established an extended filing month, the extended filing month of the corporation shall pay a penalty of 10% of the amount of any delinquent franchise tax due for the report. From February 1, 2008 through March 15, 2008, no penalty shall be imposed with respect to any amount of delinquent franchise tax paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007. Notwithstanding the above, commencing on January 1, 2016, each corporation, domestic or foreign, that fails or refuses to file any annual report prior to the first day of its anniversary month, or in the case of a corporation which has established an extended filing month, the extended filing month of the corporation, shall pay a penalty of $50 plus $10 for each calendar month or part of the month that it is delinquent.

(b) Each corporation, domestic or foreign, that fails or refuses to file a report of issuance of shares or increase in paid-in capital within the time prescribed by this Act is subject to a penalty on any obligation occurring prior to January 1, 1991, and interest on those obligations on or after January 1, 1991, for each calendar month or part of month that it is delinquent in the amount of 2% of the amount of license fees and franchise taxes provided by this Act to be paid on account of the issuance of shares or increase in paid-in capital. From February 1, 2008 through March 15, 2008, no penalty shall be imposed, or interest charged, with respect to any amount of delinquent license fees and franchise taxes paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007.

(c) Each corporation, domestic or foreign, that fails or refuses to file a report of cumulative changes in paid-in capital or report following merger within the time prescribed by this Act is subject to interest on or after January 1, 1992, for each calendar month or part of month that it is delinquent, in the amount of 2% of the amount of franchise taxes provided by this Act to be paid on account of the issuance of shares or increase in paid-in capital disclosed on the report of cumulative changes in paid-in capital or report following merger, or $1, whichever is greater. From February 1, 2008 through March 15, 2008, no interest shall be charged with respect to any amount of delinquent franchise tax paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007. Notwithstanding the above, commencing on January 1, 2016, each corporation, domestic or foreign, that fails or refuses to file any report following merger within the time prescribed by this Act, shall pay a penalty of $50 plus $10 for each calendar month or part of the month that it is delinquent.

(d) If the annual franchise tax, or the supplemental annual franchise tax for any 12-month period commencing July 1, 1968, or July 1 of any subsequent year through June 30, 1983, assessed in accordance with this Act, is not paid by July 31, it is delinquent, and there is added a penalty prior to January 1, 1991, and interest on and after January 1, 1991, of 2% for each month or part of month that it is delinquent commencing with the month of August, or $1, whichever is greater. From February 1, 2008 through March 15, 2008, no penalty shall be imposed, or interest charged, with respect to any amount of delinquent franchise taxes paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007.

(e) If the supplemental annual franchise tax assessed in accordance with the provisions of this Act for the 12-month period commencing July 1, 1967, is not paid by September 30, 1967, it is delinquent, and there is added a penalty prior to January 1, 1991, and interest on and after January 1, 1991, of 2% for each month or part of month that it is delinquent commencing with the month of October, 1967. From February 1, 2008 through March 15, 2008, no penalty shall be imposed, or interest charged, with respect to any amount of delinquent franchise taxes paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007.

(f) If any annual franchise tax for any period beginning on or after July 1, 1983, is not paid by the time period herein prescribed, it is delinquent and there is added a penalty prior to January 1, 1991, and interest on and after January 1, 1991, of 2% for each month or part of a month that it is delinquent commencing with the anniversary month or in the case of a corporation that has established an extended filing month, the extended filing month, or $1, whichever is greater. From February 1, 2008 through March 15, 2008, no penalty shall be imposed, or interest charged, with respect to any amount of delinquent franchise taxes paid pursuant to the Franchise Tax and License Fee Amnesty Act of 2007.

(g) Any corporation, domestic or foreign, failing to pay the prescribed fee for assumed corporate name renewal when due and payable shall be given notice of nonpayment by the Secretary of State by regular mail; and if the fee together with a penalty fee of $5 is not paid within 90 days after the notice is mailed, the right to use the assumed name shall cease.

(h) Any corporation which (i) puts forth any sign or advertisement, assuming any name other than that by which it is incorporated or otherwise authorized by law to act or (ii) violates Section 3.25, shall be guilty of a Class C misdemeanor and shall be deemed guilty of an additional offense for each day it shall continue to so offend.

(i) Each corporation, domestic or foreign, that fails or refuses (1) to answer truthfully and fully within the time prescribed by this Act interrogatories propounded by the Secretary of State in accordance with this Act or (2) to perform any other act required by this Act to be performed by the corporation, is guilty of a Class C misdemeanor.

(j) Each corporation that fails or refuses to file articles of revocation of dissolution within the time prescribed by this Act is subject to a penalty for each calendar month or part of the month that it is delinquent in the amount of $50.

(Source: P.A. 95-233, eff. 8-16-07; 95-707, eff. 1-11-08; 96-1121, eff. 1-1-11.)".