Full Text of SB3362 103rd General Assembly
SB3362enr 103RD GENERAL ASSEMBLY | | | SB3362 Enrolled | | LRB103 34186 HLH 66294 b |
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| 1 | | AN ACT concerning revenue. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 5. The Retailers' Occupation Tax Act is amended by | 5 | | changing Sections 1, 2, and 2-12 as follows: | 6 | | (35 ILCS 120/1) (from Ch. 120, par. 440) | 7 | | Sec. 1. Definitions. "Sale at retail" means any transfer | 8 | | of the ownership of or title to tangible personal property to a | 9 | | purchaser, for the purpose of use or consumption, and not for | 10 | | the purpose of resale in any form as tangible personal | 11 | | property to the extent not first subjected to a use for which | 12 | | it was purchased, for a valuable consideration: Provided that | 13 | | the property purchased is deemed to be purchased for the | 14 | | purpose of resale, despite first being used, to the extent to | 15 | | which it is resold as an ingredient of an intentionally | 16 | | produced product or byproduct of manufacturing. For this | 17 | | purpose, slag produced as an incident to manufacturing pig | 18 | | iron or steel and sold is considered to be an intentionally | 19 | | produced byproduct of manufacturing. Transactions whereby the | 20 | | possession of the property is transferred but the seller | 21 | | retains the title as security for payment of the selling price | 22 | | shall be deemed to be sales. | 23 | | "Sale at retail" shall be construed to include any |
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| 1 | | transfer of the ownership of or title to tangible personal | 2 | | property to a purchaser, for use or consumption by any other | 3 | | person to whom such purchaser may transfer the tangible | 4 | | personal property without a valuable consideration, and to | 5 | | include any transfer, whether made for or without a valuable | 6 | | consideration, for resale in any form as tangible personal | 7 | | property unless made in compliance with Section 2c of this | 8 | | Act. | 9 | | Sales of tangible personal property, which property, to | 10 | | the extent not first subjected to a use for which it was | 11 | | purchased, as an ingredient or constituent, goes into and | 12 | | forms a part of tangible personal property subsequently the | 13 | | subject of a "Sale at retail", are not sales at retail as | 14 | | defined in this Act: Provided that the property purchased is | 15 | | deemed to be purchased for the purpose of resale, despite | 16 | | first being used, to the extent to which it is resold as an | 17 | | ingredient of an intentionally produced product or byproduct | 18 | | of manufacturing. | 19 | | "Sale at retail" shall be construed to include any | 20 | | Illinois florist's sales transaction in which the purchase | 21 | | order is received in Illinois by a florist and the sale is for | 22 | | use or consumption, but the Illinois florist has a florist in | 23 | | another state deliver the property to the purchaser or the | 24 | | purchaser's donee in such other state. | 25 | | Nonreusable tangible personal property that is used by | 26 | | persons engaged in the business of operating a restaurant, |
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| 1 | | cafeteria, or drive-in is a sale for resale when it is | 2 | | transferred to customers in the ordinary course of business as | 3 | | part of the sale of food or beverages and is used to deliver, | 4 | | package, or consume food or beverages, regardless of where | 5 | | consumption of the food or beverages occurs. Examples of those | 6 | | items include, but are not limited to nonreusable, paper and | 7 | | plastic cups, plates, baskets, boxes, sleeves, buckets or | 8 | | other containers, utensils, straws, placemats, napkins, doggie | 9 | | bags, and wrapping or packaging materials that are transferred | 10 | | to customers as part of the sale of food or beverages in the | 11 | | ordinary course of business. | 12 | | The purchase, employment and transfer of such tangible | 13 | | personal property as newsprint and ink for the primary purpose | 14 | | of conveying news (with or without other information) is not a | 15 | | purchase, use or sale of tangible personal property. | 16 | | A person whose activities are organized and conducted | 17 | | primarily as a not-for-profit service enterprise, and who | 18 | | engages in selling tangible personal property at retail | 19 | | (whether to the public or merely to members and their guests) | 20 | | is engaged in the business of selling tangible personal | 21 | | property at retail with respect to such transactions, | 22 | | excepting only a person organized and operated exclusively for | 23 | | charitable, religious or educational purposes either (1), to | 24 | | the extent of sales by such person to its members, students, | 25 | | patients or inmates of tangible personal property to be used | 26 | | primarily for the purposes of such person, or (2), to the |
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| 1 | | extent of sales by such person of tangible personal property | 2 | | which is not sold or offered for sale by persons organized for | 3 | | profit. The selling of school books and school supplies by | 4 | | schools at retail to students is not "primarily for the | 5 | | purposes of" the school which does such selling. The | 6 | | provisions of this paragraph shall not apply to nor subject to | 7 | | taxation occasional dinners, socials or similar activities of | 8 | | a person organized and operated exclusively for charitable, | 9 | | religious or educational purposes, whether or not such | 10 | | activities are open to the public. | 11 | | A person who is the recipient of a grant or contract under | 12 | | Title VII of the Older Americans Act of 1965 (P.L. 92-258) and | 13 | | serves meals to participants in the federal Nutrition Program | 14 | | for the Elderly in return for contributions established in | 15 | | amount by the individual participant pursuant to a schedule of | 16 | | suggested fees as provided for in the federal Act is not | 17 | | engaged in the business of selling tangible personal property | 18 | | at retail with respect to such transactions. | 19 | | "Purchaser" means anyone who, through a sale at retail, | 20 | | acquires the ownership of or title to tangible personal | 21 | | property for a valuable consideration. | 22 | | "Reseller of motor fuel" means any person engaged in the | 23 | | business of selling or delivering or transferring title of | 24 | | motor fuel to another person other than for use or | 25 | | consumption. No person shall act as a reseller of motor fuel | 26 | | within this State without first being registered as a reseller |
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| 1 | | pursuant to Section 2c or a retailer pursuant to Section 2a. | 2 | | "Selling price" or the "amount of sale" means the | 3 | | consideration for a sale valued in money whether received in | 4 | | money or otherwise, including cash, credits, property, other | 5 | | than as hereinafter provided, and services, but, prior to | 6 | | January 1, 2020 and beginning again on January 1, 2022, not | 7 | | including the value of or credit given for traded-in tangible | 8 | | personal property where the item that is traded-in is of like | 9 | | kind and character as that which is being sold; beginning | 10 | | January 1, 2020 and until January 1, 2022, "selling price" | 11 | | includes the portion of the value of or credit given for | 12 | | traded-in motor vehicles of the First Division as defined in | 13 | | Section 1-146 of the Illinois Vehicle Code of like kind and | 14 | | character as that which is being sold that exceeds $10,000. | 15 | | "Selling price" shall be determined without any deduction on | 16 | | account of the cost of the property sold, the cost of materials | 17 | | used, labor or service cost or any other expense whatsoever, | 18 | | but does not include charges that are added to prices by | 19 | | sellers on account of the seller's tax liability under this | 20 | | Act, or on account of the seller's duty to collect, from the | 21 | | purchaser, the tax that is imposed by the Use Tax Act, or, | 22 | | except as otherwise provided with respect to any cigarette tax | 23 | | imposed by a home rule unit, on account of the seller's tax | 24 | | liability under any local occupation tax administered by the | 25 | | Department, or, except as otherwise provided with respect to | 26 | | any cigarette tax imposed by a home rule unit on account of the |
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| 1 | | seller's duty to collect, from the purchasers, the tax that is | 2 | | imposed under any local use tax administered by the | 3 | | Department. Effective December 1, 1985, "selling price" shall | 4 | | include charges that are added to prices by sellers on account | 5 | | of the seller's tax liability under the Cigarette Tax Act, on | 6 | | account of the sellers' duty to collect, from the purchaser, | 7 | | the tax imposed under the Cigarette Use Tax Act, and on account | 8 | | of the seller's duty to collect, from the purchaser, any | 9 | | cigarette tax imposed by a home rule unit. | 10 | | Notwithstanding any law to the contrary, for any motor | 11 | | vehicle, as defined in Section 1-146 of the Vehicle Code, that | 12 | | is sold on or after January 1, 2015 for the purpose of leasing | 13 | | the vehicle for a defined period that is longer than one year | 14 | | and (1) is a motor vehicle of the second division that: (A) is | 15 | | a self-contained motor vehicle designed or permanently | 16 | | converted to provide living quarters for recreational, | 17 | | camping, or travel use, with direct walk through access to the | 18 | | living quarters from the driver's seat; (B) is of the van | 19 | | configuration designed for the transportation of not less than | 20 | | 7 nor more than 16 passengers; or (C) has a gross vehicle | 21 | | weight rating of 8,000 pounds or less or (2) is a motor vehicle | 22 | | of the first division, "selling price" or "amount of sale" | 23 | | means the consideration received by the lessor pursuant to the | 24 | | lease contract, including amounts due at lease signing and all | 25 | | monthly or other regular payments charged over the term of the | 26 | | lease. Also included in the selling price is any amount |
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| 1 | | received by the lessor from the lessee for the leased vehicle | 2 | | that is not calculated at the time the lease is executed, | 3 | | including, but not limited to, excess mileage charges and | 4 | | charges for excess wear and tear. For sales that occur in | 5 | | Illinois, with respect to any amount received by the lessor | 6 | | from the lessee for the leased vehicle that is not calculated | 7 | | at the time the lease is executed, the lessor who purchased the | 8 | | motor vehicle does not incur the tax imposed by the Use Tax Act | 9 | | on those amounts, and the retailer who makes the retail sale of | 10 | | the motor vehicle to the lessor is not required to collect the | 11 | | tax imposed by the Use Tax Act or to pay the tax imposed by | 12 | | this Act on those amounts. However, the lessor who purchased | 13 | | the motor vehicle assumes the liability for reporting and | 14 | | paying the tax on those amounts directly to the Department in | 15 | | the same form (Illinois Retailers' Occupation Tax, and local | 16 | | retailers' occupation taxes, if applicable) in which the | 17 | | retailer would have reported and paid such tax if the retailer | 18 | | had accounted for the tax to the Department. For amounts | 19 | | received by the lessor from the lessee that are not calculated | 20 | | at the time the lease is executed, the lessor must file the | 21 | | return and pay the tax to the Department by the due date | 22 | | otherwise required by this Act for returns other than | 23 | | transaction returns. If the retailer is entitled under this | 24 | | Act to a discount for collecting and remitting the tax imposed | 25 | | under this Act to the Department with respect to the sale of | 26 | | the motor vehicle to the lessor, then the right to the discount |
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| 1 | | provided in this Act shall be transferred to the lessor with | 2 | | respect to the tax paid by the lessor for any amount received | 3 | | by the lessor from the lessee for the leased vehicle that is | 4 | | not calculated at the time the lease is executed; provided | 5 | | that the discount is only allowed if the return is timely filed | 6 | | and for amounts timely paid. The "selling price" of a motor | 7 | | vehicle that is sold on or after January 1, 2015 for the | 8 | | purpose of leasing for a defined period of longer than one year | 9 | | shall not be reduced by the value of or credit given for | 10 | | traded-in tangible personal property owned by the lessor, nor | 11 | | shall it be reduced by the value of or credit given for | 12 | | traded-in tangible personal property owned by the lessee, | 13 | | regardless of whether the trade-in value thereof is assigned | 14 | | by the lessee to the lessor. In the case of a motor vehicle | 15 | | that is sold for the purpose of leasing for a defined period of | 16 | | longer than one year, the sale occurs at the time of the | 17 | | delivery of the vehicle, regardless of the due date of any | 18 | | lease payments. A lessor who incurs a Retailers' Occupation | 19 | | Tax liability on the sale of a motor vehicle coming off lease | 20 | | may not take a credit against that liability for the Use Tax | 21 | | the lessor paid upon the purchase of the motor vehicle (or for | 22 | | any tax the lessor paid with respect to any amount received by | 23 | | the lessor from the lessee for the leased vehicle that was not | 24 | | calculated at the time the lease was executed) if the selling | 25 | | price of the motor vehicle at the time of purchase was | 26 | | calculated using the definition of "selling price" as defined |
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| 1 | | in this paragraph. Notwithstanding any other provision of this | 2 | | Act to the contrary, lessors shall file all returns and make | 3 | | all payments required under this paragraph to the Department | 4 | | by electronic means in the manner and form as required by the | 5 | | Department. This paragraph does not apply to leases of motor | 6 | | vehicles for which, at the time the lease is entered into, the | 7 | | term of the lease is not a defined period, including leases | 8 | | with a defined initial period with the option to continue the | 9 | | lease on a month-to-month or other basis beyond the initial | 10 | | defined period. | 11 | | The phrase "like kind and character" shall be liberally | 12 | | construed (including but not limited to any form of motor | 13 | | vehicle for any form of motor vehicle, or any kind of farm or | 14 | | agricultural implement for any other kind of farm or | 15 | | agricultural implement), while not including a kind of item | 16 | | which, if sold at retail by that retailer, would be exempt from | 17 | | retailers' occupation tax and use tax as an isolated or | 18 | | occasional sale. | 19 | | "Gross receipts" from the sales of tangible personal | 20 | | property at retail means the total selling price or the amount | 21 | | of such sales, as hereinbefore defined. In the case of charge | 22 | | and time sales, the amount thereof shall be included only as | 23 | | and when payments are received by the seller. Receipts or | 24 | | other consideration derived by a seller from the sale, | 25 | | transfer or assignment of accounts receivable to a wholly | 26 | | owned subsidiary will not be deemed payments prior to the time |
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| 1 | | the purchaser makes payment on such accounts. | 2 | | "Department" means the Department of Revenue. | 3 | | "Person" means any natural individual, firm, partnership, | 4 | | association, joint stock company, joint adventure, public or | 5 | | private corporation, limited liability company, or a receiver, | 6 | | executor, trustee, guardian or other representative appointed | 7 | | by order of any court. | 8 | | The isolated or occasional sale of tangible personal | 9 | | property at retail by a person who does not hold himself out as | 10 | | being engaged (or who does not habitually engage) in selling | 11 | | such tangible personal property at retail, or a sale through a | 12 | | bulk vending machine, does not constitute engaging in a | 13 | | business of selling such tangible personal property at retail | 14 | | within the meaning of this Act; provided that any person who is | 15 | | engaged in a business which is not subject to the tax imposed | 16 | | by this Act because of involving the sale of or a contract to | 17 | | sell real estate or a construction contract to improve real | 18 | | estate or a construction contract to engineer, install, and | 19 | | maintain an integrated system of products, but who, in the | 20 | | course of conducting such business, transfers tangible | 21 | | personal property to users or consumers in the finished form | 22 | | in which it was purchased, and which does not become real | 23 | | estate or was not engineered and installed, under any | 24 | | provision of a construction contract or real estate sale or | 25 | | real estate sales agreement entered into with some other | 26 | | person arising out of or because of such nontaxable business, |
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| 1 | | is engaged in the business of selling tangible personal | 2 | | property at retail to the extent of the value of the tangible | 3 | | personal property so transferred. If, in such a transaction, a | 4 | | separate charge is made for the tangible personal property so | 5 | | transferred, the value of such property, for the purpose of | 6 | | this Act, shall be the amount so separately charged, but not | 7 | | less than the cost of such property to the transferor; if no | 8 | | separate charge is made, the value of such property, for the | 9 | | purposes of this Act, is the cost to the transferor of such | 10 | | tangible personal property. Construction contracts for the | 11 | | improvement of real estate consisting of engineering, | 12 | | installation, and maintenance of voice, data, video, security, | 13 | | and all telecommunication systems do not constitute engaging | 14 | | in a business of selling tangible personal property at retail | 15 | | within the meaning of this Act if they are sold at one | 16 | | specified contract price. | 17 | | A person who holds himself or herself out as being engaged | 18 | | (or who habitually engages) in selling tangible personal | 19 | | property at retail is a person engaged in the business of | 20 | | selling tangible personal property at retail hereunder with | 21 | | respect to such sales (and not primarily in a service | 22 | | occupation) notwithstanding the fact that such person designs | 23 | | and produces such tangible personal property on special order | 24 | | for the purchaser and in such a way as to render the property | 25 | | of value only to such purchaser, if such tangible personal | 26 | | property so produced on special order serves substantially the |
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| 1 | | same function as stock or standard items of tangible personal | 2 | | property that are sold at retail. | 3 | | Persons who engage in the business of transferring | 4 | | tangible personal property upon the redemption of trading | 5 | | stamps are engaged in the business of selling such property at | 6 | | retail and shall be liable for and shall pay the tax imposed by | 7 | | this Act on the basis of the retail value of the property | 8 | | transferred upon redemption of such stamps. | 9 | | "Bulk vending machine" means a vending machine, containing | 10 | | unsorted confections, nuts, toys, or other items designed | 11 | | primarily to be used or played with by children which, when a | 12 | | coin or coins of a denomination not larger than $0.50 are | 13 | | inserted, are dispensed in equal portions, at random and | 14 | | without selection by the customer. | 15 | | "Remote retailer" means a retailer that does not maintain | 16 | | within this State, directly or by a subsidiary, an office, | 17 | | distribution house, sales house, warehouse or other place of | 18 | | business, or any agent or other representative operating | 19 | | within this State under the authority of the retailer or its | 20 | | subsidiary, irrespective of whether such place of business or | 21 | | agent is located here permanently or temporarily or whether | 22 | | such retailer or subsidiary is licensed to do business in this | 23 | | State. | 24 | | "Retailer maintaining a place of business in this State" | 25 | | has the meaning given to that term in Section 2 of the Use Tax | 26 | | Act. |
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| 1 | | "Marketplace" means a physical or electronic place, forum, | 2 | | platform, application, or other method by which a marketplace | 3 | | seller sells or offers to sell items. | 4 | | "Marketplace facilitator" means a person who, pursuant to | 5 | | an agreement with an unrelated third-party marketplace seller, | 6 | | directly or indirectly through one or more affiliates | 7 | | facilitates a retail sale by an unrelated third party | 8 | | marketplace seller by: | 9 | | (1) listing or advertising for sale by the marketplace | 10 | | seller in a marketplace, tangible personal property that | 11 | | is subject to tax under this Act; and | 12 | | (2) either directly or indirectly, through agreements | 13 | | or arrangements with third parties, collecting payment | 14 | | from the customer and transmitting that payment to the | 15 | | marketplace seller regardless of whether the marketplace | 16 | | facilitator receives compensation or other consideration | 17 | | in exchange for its services. | 18 | | A person who provides advertising services, including | 19 | | listing products for sale, is not considered a marketplace | 20 | | facilitator, so long as the advertising service platform or | 21 | | forum does not engage, directly or indirectly through one or | 22 | | more affiliated persons, in the activities described in | 23 | | paragraph (2) of this definition of "marketplace facilitator". | 24 | | "Marketplace facilitator" does not include any person | 25 | | licensed under the Auction License Act. This exemption does | 26 | | not apply to any person who is an Internet auction listing |
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| 1 | | service, as defined by the Auction License Act. | 2 | | "Marketplace seller" means a person that makes sales | 3 | | through a marketplace operated by an unrelated third party | 4 | | marketplace facilitator. | 5 | | (Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20; | 6 | | 102-353, eff. 1-1-22; 102-634, eff. 8-27-21; 102-813, eff. | 7 | | 5-13-22.) | 8 | | (35 ILCS 120/2) (from Ch. 120, par. 441) | 9 | | Sec. 2. Tax imposed. | 10 | | (a) A tax is imposed upon persons engaged in the business | 11 | | of selling at retail tangible personal property, including | 12 | | computer software, and including photographs, negatives, and | 13 | | positives that are the product of photoprocessing, but not | 14 | | including products of photoprocessing produced for use in | 15 | | motion pictures for public commercial exhibition. Beginning | 16 | | January 1, 2001, prepaid telephone calling arrangements shall | 17 | | be considered tangible personal property subject to the tax | 18 | | imposed under this Act regardless of the form in which those | 19 | | arrangements may be embodied, transmitted, or fixed by any | 20 | | method now known or hereafter developed. Sales of (1) | 21 | | electricity delivered to customers by wire; (2) natural or | 22 | | artificial gas that is delivered to customers through pipes, | 23 | | pipelines, or mains; and (3) water that is delivered to | 24 | | customers through pipes, pipelines, or mains are not subject | 25 | | to tax under this Act. The provisions of this amendatory Act of |
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| 1 | | the 98th General Assembly are declaratory of existing law as | 2 | | to the meaning and scope of this Act. | 3 | | (b) Beginning on January 1, 2021, a remote retailer is | 4 | | engaged in the occupation of selling at retail in Illinois for | 5 | | purposes of this Act, if: | 6 | | (1) the cumulative gross receipts from sales of | 7 | | tangible personal property to purchasers in Illinois are | 8 | | $100,000 or more; or | 9 | | (2) the retailer enters into 200 or more separate | 10 | | transactions for the sale of tangible personal property to | 11 | | purchasers in Illinois. | 12 | | Remote retailers that meet or exceed the threshold in | 13 | | either paragraph (1) or (2) above shall be liable for all | 14 | | applicable State retailers' and locally imposed retailers' | 15 | | occupation taxes administered by the Department on all retail | 16 | | sales to Illinois purchasers. | 17 | | The remote retailer shall determine on a quarterly basis, | 18 | | ending on the last day of March, June, September, and | 19 | | December, whether he or she meets the criteria of either | 20 | | paragraph (1) or (2) of this subsection for the preceding | 21 | | 12-month period. If the retailer meets the criteria of either | 22 | | paragraph (1) or (2) for a 12-month period, he or she is | 23 | | considered a retailer maintaining a place of business in this | 24 | | State and is required to collect and remit the tax imposed | 25 | | under this Act and all retailers' occupation tax imposed by | 26 | | local taxing jurisdictions in Illinois, provided such local |
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| 1 | | taxes are administered by the Department, and to file all | 2 | | applicable returns for one year. At the end of that one-year | 3 | | period, the retailer shall determine whether the retailer met | 4 | | the criteria of either paragraph (1) or (2) for the preceding | 5 | | 12-month period. If the retailer met the criteria in either | 6 | | paragraph (1) or (2) for the preceding 12-month period, he or | 7 | | she is considered a retailer maintaining a place of business | 8 | | in this State and is required to collect and remit all | 9 | | applicable State and local retailers' occupation taxes and | 10 | | file returns for the subsequent year. If, at the end of a | 11 | | one-year period, a retailer that was required to collect and | 12 | | remit the tax imposed under this Act determines that he or she | 13 | | did not meet the criteria in either paragraph (1) or (2) during | 14 | | the preceding 12-month period, then the retailer shall | 15 | | subsequently determine on a quarterly basis, ending on the | 16 | | last day of March, June, September, and December, whether he | 17 | | or she meets the criteria of either paragraph (1) or (2) for | 18 | | the preceding 12-month period. | 19 | | (b-2) Beginning on January 1, 2025, a retailer maintaining | 20 | | a place of business in this State that makes retail sales of | 21 | | tangible personal property to Illinois customers from a | 22 | | location or locations outside of Illinois is engaged in the | 23 | | occupation of selling at retail in Illinois for the purposes | 24 | | of this Act. Those retailers are liable for all applicable | 25 | | State and locally imposed retailers' occupation taxes | 26 | | administered by the Department on retail sales made by those |
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| 1 | | retailers to Illinois customers from locations outside of | 2 | | Illinois. | 3 | | (b-5) For the purposes of this Section, neither the gross | 4 | | receipts from nor the number of separate transactions for | 5 | | sales of tangible personal property to purchasers in Illinois | 6 | | that a remote retailer makes through a marketplace facilitator | 7 | | shall be included for the purposes of determining whether he | 8 | | or she has met the thresholds of subsection (b) of this Section | 9 | | so long as the remote retailer has received certification from | 10 | | the marketplace facilitator that the marketplace facilitator | 11 | | is legally responsible for payment of tax on such sales. | 12 | | (b-10) A remote retailer that is required to collect taxes | 13 | | imposed under the Use Tax Act on retail sales made to Illinois | 14 | | purchasers or a retailer maintaining a place of business in | 15 | | this State that is required to collect taxes imposed under the | 16 | | Use Tax Act on retail sales made to Illinois purchasers shall | 17 | | be liable to the Department for such taxes, except when the | 18 | | remote retailer or retailer maintaining a place of business in | 19 | | this State is relieved of the duty to remit such taxes by | 20 | | virtue of having paid to the Department taxes imposed by this | 21 | | Act in accordance with this Section upon his or her gross | 22 | | receipts from such sales. | 23 | | (c) Marketplace facilitators engaged in the business of | 24 | | selling at retail tangible personal property in Illinois. | 25 | | Beginning January 1, 2021, a marketplace facilitator is | 26 | | engaged in the occupation of selling at retail tangible |
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| 1 | | personal property in Illinois for purposes of this Act if, | 2 | | during the previous 12-month period: | 3 | | (1) the cumulative gross receipts from sales of | 4 | | tangible personal property on its own behalf or on behalf | 5 | | of marketplace sellers to purchasers in Illinois equals | 6 | | $100,000 or more; or | 7 | | (2) the marketplace facilitator enters into 200 or | 8 | | more separate transactions on its own behalf or on behalf | 9 | | of marketplace sellers for the sale of tangible personal | 10 | | property to purchasers in Illinois, regardless of whether | 11 | | the marketplace facilitator or marketplace sellers for | 12 | | whom such sales are facilitated are registered as | 13 | | retailers in this State. | 14 | | A marketplace facilitator who meets either paragraph (1) | 15 | | or (2) of this subsection is required to remit the applicable | 16 | | State retailers' occupation taxes under this Act and local | 17 | | retailers' occupation taxes administered by the Department on | 18 | | all taxable sales of tangible personal property made by the | 19 | | marketplace facilitator or facilitated for marketplace sellers | 20 | | to customers in this State. A marketplace facilitator selling | 21 | | or facilitating the sale of tangible personal property to | 22 | | customers in this State is subject to all applicable | 23 | | procedures and requirements of this Act. | 24 | | The marketplace facilitator shall determine on a quarterly | 25 | | basis, ending on the last day of March, June, September, and | 26 | | December, whether he or she meets the criteria of either |
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| 1 | | paragraph (1) or (2) of this subsection for the preceding | 2 | | 12-month period. If the marketplace facilitator meets the | 3 | | criteria of either paragraph (1) or (2) for a 12-month period, | 4 | | he or she is considered a retailer maintaining a place of | 5 | | business in this State and is required to remit the tax imposed | 6 | | under this Act and all retailers' occupation tax imposed by | 7 | | local taxing jurisdictions in Illinois, provided such local | 8 | | taxes are administered by the Department, and to file all | 9 | | applicable returns for one year. At the end of that one-year | 10 | | period, the marketplace facilitator shall determine whether it | 11 | | met the criteria of either paragraph (1) or (2) for the | 12 | | preceding 12-month period. If the marketplace facilitator met | 13 | | the criteria in either paragraph (1) or (2) for the preceding | 14 | | 12-month period, it is considered a retailer maintaining a | 15 | | place of business in this State and is required to collect and | 16 | | remit all applicable State and local retailers' occupation | 17 | | taxes and file returns for the subsequent year. If at the end | 18 | | of a one-year period a marketplace facilitator that was | 19 | | required to collect and remit the tax imposed under this Act | 20 | | determines that he or she did not meet the criteria in either | 21 | | paragraph (1) or (2) during the preceding 12-month period, the | 22 | | marketplace facilitator shall subsequently determine on a | 23 | | quarterly basis, ending on the last day of March, June, | 24 | | September, and December, whether he or she meets the criteria | 25 | | of either paragraph (1) or (2) for the preceding 12-month | 26 | | period. |
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| 1 | | A marketplace facilitator shall be entitled to any | 2 | | credits, deductions, or adjustments to the sales price | 3 | | otherwise provided to the marketplace seller, in addition to | 4 | | any such adjustments provided directly to the marketplace | 5 | | facilitator. This Section pertains to, but is not limited to, | 6 | | adjustments such as discounts, coupons, and rebates. In | 7 | | addition, a marketplace facilitator shall be entitled to the | 8 | | retailers' discount provided in Section 3 of the Retailers' | 9 | | Occupation Tax Act on all marketplace sales, and the | 10 | | marketplace seller shall not include sales made through a | 11 | | marketplace facilitator when computing any retailers' discount | 12 | | on remaining sales. Marketplace facilitators shall report and | 13 | | remit the applicable State and local retailers' occupation | 14 | | taxes on sales facilitated for marketplace sellers separately | 15 | | from any sales or use tax collected on taxable retail sales | 16 | | made directly by the marketplace facilitator or its | 17 | | affiliates. | 18 | | The marketplace facilitator is liable for the remittance | 19 | | of all applicable State retailers' occupation taxes under this | 20 | | Act and local retailers' occupation taxes administered by the | 21 | | Department on sales through the marketplace and is subject to | 22 | | audit on all such sales. The Department shall not audit | 23 | | marketplace sellers for their marketplace sales where a | 24 | | marketplace facilitator remitted the applicable State and | 25 | | local retailers' occupation taxes unless the marketplace | 26 | | facilitator seeks relief as a result of incorrect information |
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| 1 | | provided to the marketplace facilitator by a marketplace | 2 | | seller as set forth in this Section. The marketplace | 3 | | facilitator shall not be held liable for tax on any sales made | 4 | | by a marketplace seller that take place outside of the | 5 | | marketplace and which are not a part of any agreement between a | 6 | | marketplace facilitator and a marketplace seller. In addition, | 7 | | marketplace facilitators shall not be held liable to State and | 8 | | local governments of Illinois for having charged and remitted | 9 | | an incorrect amount of State and local retailers' occupation | 10 | | tax if, at the time of the sale, the tax is computed based on | 11 | | erroneous data provided by the State in database files on tax | 12 | | rates, boundaries, or taxing jurisdictions or incorrect | 13 | | information provided to the marketplace facilitator by the | 14 | | marketplace seller. | 15 | | (d) A marketplace facilitator shall: | 16 | | (1) certify to each marketplace seller that the | 17 | | marketplace facilitator assumes the rights and duties of a | 18 | | retailer under this Act with respect to sales made by the | 19 | | marketplace seller through the marketplace; and | 20 | | (2) remit taxes imposed by this Act as required by | 21 | | this Act for sales made through the marketplace. | 22 | | (e) A marketplace seller shall retain books and records | 23 | | for all sales made through a marketplace in accordance with | 24 | | the requirements of this Act. | 25 | | (f) A marketplace facilitator is subject to audit on all | 26 | | marketplace sales for which it is considered to be the |
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| 1 | | retailer, but shall not be liable for tax or subject to audit | 2 | | on sales made by marketplace sellers outside of the | 3 | | marketplace. | 4 | | (g) A marketplace facilitator required to collect taxes | 5 | | imposed under the Use Tax Act on marketplace sales made to | 6 | | Illinois purchasers shall be liable to the Department for such | 7 | | taxes, except when the marketplace facilitator is relieved of | 8 | | the duty to remit such taxes by virtue of having paid to the | 9 | | Department taxes imposed by this Act in accordance with this | 10 | | Section upon his or her gross receipts from such sales. | 11 | | (h) Nothing in this Section shall allow the Department to | 12 | | collect retailers' occupation taxes from both the marketplace | 13 | | facilitator and marketplace seller on the same transaction. | 14 | | (i) If, for any reason, the Department is prohibited from | 15 | | enforcing the marketplace facilitator's duty under this Act to | 16 | | remit taxes pursuant to this Section, the duty to remit such | 17 | | taxes remains with the marketplace seller. | 18 | | (j) Nothing in this Section affects the obligation of any | 19 | | consumer to remit use tax for any taxable transaction for | 20 | | which a certified service provider acting on behalf of a | 21 | | remote retailer or a marketplace facilitator does not collect | 22 | | and remit the appropriate tax. | 23 | | (k) Nothing in this Section shall allow the Department to | 24 | | collect the retailers' occupation tax from both the | 25 | | marketplace facilitator and the marketplace seller. | 26 | | (Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.) |
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| 1 | | (35 ILCS 120/2-12) | 2 | | Sec. 2-12. Location where retailer is deemed to be engaged | 3 | | in the business of selling. The purpose of this Section is to | 4 | | specify where a retailer is deemed to be engaged in the | 5 | | business of selling tangible personal property for the | 6 | | purposes of this Act, the Use Tax Act, the Service Use Tax Act, | 7 | | and the Service Occupation Tax Act, and for the purpose of | 8 | | collecting any other local retailers' occupation tax | 9 | | administered by the Department. This Section applies only with | 10 | | respect to the particular selling activities described in the | 11 | | following paragraphs. The provisions of this Section are not | 12 | | intended to, and shall not be interpreted to, affect where a | 13 | | retailer is deemed to be engaged in the business of selling | 14 | | with respect to any activity that is not specifically | 15 | | described in the following paragraphs. | 16 | | (1) If a purchaser who is present at the retailer's | 17 | | place of business, having no prior commitment to the | 18 | | retailer, agrees to purchase and makes payment for | 19 | | tangible personal property at the retailer's place of | 20 | | business, then the transaction shall be deemed an | 21 | | over-the-counter sale occurring at the retailer's same | 22 | | place of business where the purchaser was present and made | 23 | | payment for that tangible personal property if the | 24 | | retailer regularly stocks the purchased tangible personal | 25 | | property or similar tangible personal property in the |
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| 1 | | quantity, or similar quantity, for sale at the retailer's | 2 | | same place of business and then either (i) the purchaser | 3 | | takes possession of the tangible personal property at the | 4 | | same place of business or (ii) the retailer delivers or | 5 | | arranges for the tangible personal property to be | 6 | | delivered to the purchaser. | 7 | | (2) If a purchaser, having no prior commitment to the | 8 | | retailer, agrees to purchase tangible personal property | 9 | | and makes payment over the phone, in writing, or via the | 10 | | Internet and takes possession of the tangible personal | 11 | | property at the retailer's place of business, then the | 12 | | sale shall be deemed to have occurred at the retailer's | 13 | | place of business where the purchaser takes possession of | 14 | | the property if the retailer regularly stocks the item or | 15 | | similar items in the quantity, or similar quantities, | 16 | | purchased by the purchaser. | 17 | | (3) A retailer is deemed to be engaged in the business | 18 | | of selling food, beverages, or other tangible personal | 19 | | property through a vending machine at the location where | 20 | | the vending machine is located at the time the sale is made | 21 | | if (i) the vending machine is a device operated by coin, | 22 | | currency, credit card, token, coupon or similar device; | 23 | | (2) the food, beverage or other tangible personal property | 24 | | is contained within the vending machine and dispensed from | 25 | | the vending machine; and (3) the purchaser takes | 26 | | possession of the purchased food, beverage or other |
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| 1 | | tangible personal property immediately. | 2 | | (4) Minerals. A producer of coal or other mineral | 3 | | mined in Illinois is deemed to be engaged in the business | 4 | | of selling at the place where the coal or other mineral | 5 | | mined in Illinois is extracted from the earth. With | 6 | | respect to minerals (i) the term "extracted from the | 7 | | earth" means the location at which the coal or other | 8 | | mineral is extracted from the mouth of the mine, and (ii) a | 9 | | "mineral" includes not only coal, but also oil, sand, | 10 | | stone taken from a quarry, gravel and any other thing | 11 | | commonly regarded as a mineral and extracted from the | 12 | | earth. This paragraph does not apply to coal or another | 13 | | mineral when it is delivered or shipped by the seller to | 14 | | the purchaser at a point outside Illinois so that the sale | 15 | | is exempt under the United States Constitution as a sale | 16 | | in interstate or foreign commerce. | 17 | | (5) A retailer selling tangible personal property to a | 18 | | nominal lessee or bailee pursuant to a lease with a dollar | 19 | | or other nominal option to purchase is engaged in the | 20 | | business of selling at the location where the property is | 21 | | first delivered to the lessee or bailee for its intended | 22 | | use. | 23 | | (6) Beginning on January 1, 2021, a remote retailer | 24 | | making retail sales of tangible personal property that | 25 | | meet or exceed the thresholds established in paragraph (1) | 26 | | or (2) of subsection (b) of Section 2 of this Act is |
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| 1 | | engaged in the business of selling at the Illinois | 2 | | location to which the tangible personal property is | 3 | | shipped or delivered or at which possession is taken by | 4 | | the purchaser. | 5 | | (7) Beginning January 1, 2021, a marketplace | 6 | | facilitator facilitating sales of tangible personal | 7 | | property that meet or exceed one of the thresholds | 8 | | established in paragraph (1) or (2) of subsection (c) of | 9 | | Section 2 of this Act is deemed to be engaged in the | 10 | | business of selling at the Illinois location to which the | 11 | | tangible personal property is shipped or delivered or at | 12 | | which possession is taken by the purchaser when the sale | 13 | | is made by a marketplace seller on the marketplace | 14 | | facilitator's marketplace. | 15 | | (8) Beginning on January 1, 2025, for sales that would | 16 | | otherwise be sourced outside of this State, a retailer | 17 | | maintaining a place of business in this State that makes | 18 | | retail sales of tangible personal property to Illinois | 19 | | customers from a location or locations outside of Illinois | 20 | | is engaged in the business of selling at the Illinois | 21 | | location to which the tangible personal property is | 22 | | shipped or delivered or at which possession is taken by | 23 | | the purchaser. | 24 | | (Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.) | 25 | | Section 99. Effective date. This Act takes effect January | 26 | | 1, 2025. |
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