Full Text of SB0801 95th General Assembly
SB0801sam001 95TH GENERAL ASSEMBLY
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Sen. Terry Link
Filed: 4/9/2008
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| AMENDMENT TO SENATE BILL 801
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| AMENDMENT NO. ______. Amend Senate Bill 801 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Cigarette Tax Act is amended by changing | 5 |
| Sections 1, 3, 3-10, 4, 11, 20, and 21 and by adding Sections | 6 |
| 3-15, 3-20, 4c, 4d, 4e, 4f, 4g, 6a, and 11a as follows:
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| (35 ILCS 130/1) (from Ch. 120, par. 453.1)
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| Sec. 1. For the purposes of this Act:
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| "Brand Style" means a variety of cigarettes distinguished | 10 |
| by the tobacco used, tar and nicotine content, flavoring used, | 11 |
| size of the cigarette, filtration on the cigarette or | 12 |
| packaging. "Cigarette", means any when used in this Act, shall | 13 |
| be construed to mean: Any
roll for smoking made wholly or in | 14 |
| part of tobacco irrespective of size
or shape and whether or | 15 |
| not such tobacco is flavored, adulterated or
mixed with any | 16 |
| other ingredient, and the wrapper or cover of which is
made of |
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| paper or any other substance or material except tobacco.
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| "Contraband cigarettes" means: | 3 |
| (a) cigarettes that do not bear a required tax stamp | 4 |
| under this Act; | 5 |
| (b) cigarettes for which any required federal taxes | 6 |
| have not been paid; | 7 |
| (c) cigarettes that bear a counterfeit tax stamp; | 8 |
| (d) cigarettes that are manufactured, fabricated, | 9 |
| assembled, processed, packaged, or labeled by any person | 10 |
| other than (i) the owner of the trademark rights in the | 11 |
| cigarette brand or (ii) a person that is directly or | 12 |
| indirectly authorized by such owner; or | 13 |
| (e) cigarettes imported into the United States, or | 14 |
| otherwise distributed, in violation of the federal | 15 |
| Imported Cigarette Compliance Act of 2000 (Title IV of | 16 |
| Public Law 106-476). | 17 |
| "Person" means any natural individual, firm, partnership, | 18 |
| association, joint
stock company, joint adventure, public or | 19 |
| private corporation, however formed,
limited liability | 20 |
| company, or a receiver, executor, administrator, trustee,
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| guardian or other representative appointed by order of any | 22 |
| court.
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| "Prior Continuous Compliance Taxpayer" means any person | 24 |
| who is licensed
under this Act and who, having been a licensee | 25 |
| for a continuous period of 5
years, is determined by the | 26 |
| Department not to have been either delinquent
or deficient in |
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| the payment of tax liability during that period or
otherwise in | 2 |
| violation of this Act. Also, any taxpayer who has, as
verified | 3 |
| by the Department, continuously complied with the condition of | 4 |
| his
bond or other security under provisions of this Act for a | 5 |
| period of 5
consecutive years shall be considered to be a | 6 |
| "Prior continuous compliance
taxpayer". In calculating the | 7 |
| consecutive period of time described herein
for qualification | 8 |
| as a "prior continuous compliance taxpayer", a
consecutive | 9 |
| period of time of qualifying compliance immediately prior to
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| the effective date of this amendatory Act of 1987 shall be | 11 |
| credited to any
licensee who became licensed on or before the | 12 |
| effective date of this
amendatory Act of 1987.
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| "Department" means the Department of Revenue.
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| "Sale" means any transfer, exchange or barter in any manner | 15 |
| or by any
means whatsoever for a consideration, and includes | 16 |
| and means all sales
made by any person.
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| "Original Package" means the individual packet, box or | 18 |
| other container
whatsoever used to contain and to convey | 19 |
| cigarettes to the consumer.
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| "Distributor" means any and each of the following:
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| (1) Any person engaged in the business of selling | 22 |
| cigarettes in this
State who brings or causes to be brought | 23 |
| into this State from without
this State any original packages | 24 |
| of cigarettes, on which original
packages there is no | 25 |
| authorized evidence underneath a sealed transparent
wrapper | 26 |
| showing that the tax liability imposed by this Act has been |
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| paid
or assumed by the out-of-State seller of such cigarettes, | 2 |
| for sale or
other disposition in the course of such business.
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| (2) Any person who makes, manufactures or fabricates | 4 |
| cigarettes in this
State for sale in this State, except a | 5 |
| person who makes, manufactures
or fabricates cigarettes as a | 6 |
| part of a correctional industries program
for sale to residents | 7 |
| incarcerated in penal institutions or resident patients
of a | 8 |
| State-operated mental health facility.
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| (3) Any person who makes, manufactures or fabricates | 10 |
| cigarettes
outside this State, which cigarettes are placed in | 11 |
| original packages
contained in sealed transparent wrappers, | 12 |
| for delivery or shipment into
this State, and who elects to | 13 |
| qualify and is accepted by the Department
as a distributor | 14 |
| under Section 4b of this Act.
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| "Place of business" shall mean and include any place where | 16 |
| cigarettes
are sold or where cigarettes are manufactured, | 17 |
| stored or kept for the
purpose of sale or consumption, | 18 |
| including any vessel, vehicle, airplane,
train or vending | 19 |
| machine.
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| "Business" means any trade, occupation, activity or | 21 |
| enterprise
engaged in for the purpose of selling cigarettes in | 22 |
| this State.
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| "Retailer" means any person who engages in the making of | 24 |
| transfers of
the ownership of, or title to, cigarettes to a | 25 |
| purchaser for use or
consumption and not for resale in any | 26 |
| form, for a valuable consideration. "Retailer" does not include |
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| a person:
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| (1) who transfers to residents incarcerated in penal | 3 |
| institutions
or resident patients of a State-operated | 4 |
| mental health facility ownership
of cigarettes made, | 5 |
| manufactured, or fabricated as part of a correctional
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| industries program; or | 7 |
| (2) who transfers cigarettes to a not-for-profit | 8 |
| research institution that conducts tests concerning the | 9 |
| health effects of tobacco products and who does not offer | 10 |
| the cigarettes for resale.
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| "Retailer" shall be construed to include any person who | 12 |
| engages in
the making of transfers of the ownership of, or | 13 |
| title to, cigarettes to
a purchaser, for use or consumption by | 14 |
| any other person to whom such
purchaser may transfer the | 15 |
| cigarettes without a valuable consideration,
except a person | 16 |
| who transfers to residents incarcerated in penal institutions
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| or resident patients of a State-operated mental health facility | 18 |
| ownership
of cigarettes made, manufactured or fabricated as | 19 |
| part of a correctional
industries program.
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| "Stamp" or "stamps" mean the indicia required to be placed | 21 |
| on a pack of cigarettes that evidence payment of the tax on | 22 |
| cigarettes under Section 2 of this Act (35 ILCS 130/2), or the | 23 |
| indicia used to indicate that the cigarettes are intended for a | 24 |
| sale or distribution within this State that is exempt from | 25 |
| State tax under any applicable provision of law. | 26 |
| "Within this State" means within the exterior limits of the |
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| State of Illinois and includes all territory within these | 2 |
| limits owned by or ceded to the United States of America. | 3 |
| "Related party" means any person that is associated with | 4 |
| any other person because he or she: | 5 |
| (a) is an officer or director of a business; | 6 |
| (b) is legally recognized as a partner in business; or | 7 |
| (c) is directly or indirectly controlled by another. | 8 |
| (Source: P.A. 95-462, eff. 8-27-07.)
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| (35 ILCS 130/3) (from Ch. 120, par. 453.3)
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| Sec. 3. Affixing tax stamp; remitting tax to the | 11 |
| Department. Payment of
the taxes imposed by Section 2 of this | 12 |
| Act shall
(except as hereinafter provided) be evidenced by | 13 |
| revenue tax stamps affixed
to each original package of | 14 |
| cigarettes. Each distributor of cigarettes,
before delivering | 15 |
| or causing to be delivered any original package of
cigarettes | 16 |
| in this State to a purchaser, shall firmly affix a proper stamp
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| or stamps to each such package, or (in case of manufacturers of | 18 |
| cigarettes
in original packages which are contained inside a | 19 |
| sealed transparent
wrapper) shall imprint the required | 20 |
| language on the original package of
cigarettes beneath such | 21 |
| outside wrapper, as hereinafter provided. Any stamp required by | 22 |
| this Act shall note whether the State tax under Section 2 of | 23 |
| this Act (35 ILCS 130/2) was paid or whether the pack of | 24 |
| cigarettes was not subject to such tax.
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| No stamp or imprint may be affixed to, or made upon, any |
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| package of
cigarettes unless that package complies with all | 2 |
| requirements of the federal
Cigarette Labeling and Advertising | 3 |
| Act, 15 U.S.C. 1331 and following, for the
placement of labels, | 4 |
| warnings, or any other information upon a package of
cigarettes | 5 |
| that is sold within the United States. Under the authority of
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| Section 6, the Department shall revoke the license of any | 7 |
| distributor that is
determined to have violated this paragraph.
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| A person may not affix a stamp on a package of cigarettes, | 9 |
| cigarette papers,
wrappers, or tubes if that individual package | 10 |
| has been marked for export
outside the United States with a | 11 |
| label or notice in compliance with Section
290.185 of Title 27 | 12 |
| of the Code of Federal Regulations. It is not a defense to
a | 13 |
| proceeding for violation of this paragraph that the label or | 14 |
| notice has been
removed, mutilated, obliterated, or altered in | 15 |
| any manner.
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| Only distributors licensed under this Act or out-of-state | 17 |
| manufacturers holding a permit under this Act may receive | 18 |
| unstamped packs of cigarettes. Prior to shipment to another | 19 |
| person, each licensed distributor or out-of-state manufacturer | 20 |
| holding a permit shall apply a stamp to each pack of cigarettes | 21 |
| imported, distributed, or sold whether or not such cigarettes | 22 |
| are subject to State tax under Section 2 of this Act (35 ILCS | 23 |
| 130/2) or any other provision of State law, provided that a | 24 |
| distributor or out-of-state manufacturer may only apply a tax | 25 |
| stamp to a pack of cigarettes purchased or obtained directly | 26 |
| from a licensed distributor or an out-of-state manufacturing |
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| holding a permit. Only a licensed distributor or an | 2 |
| out-of-state manufacturer holding a permit may ship or | 3 |
| otherwise cause to be delivered unstamped packs of cigarettes | 4 |
| in, into, or from this State, provided that a licensed | 5 |
| distributor or an out-of-state manufacturer holding a permit | 6 |
| may transport unstamped packs of cigarettes to a facility, | 7 |
| wherever located, owned by such distributor or manufacturer. | 8 |
| Any person that ships or otherwise causes to be delivered | 9 |
| unstamped packs of cigarettes into, within, or from this State | 10 |
| shall ensure that the invoice or equivalent documentation and | 11 |
| the bill of lading or freight bill for the shipment identifies | 12 |
| the true name and address of the cosignor or seller, the true | 13 |
| name and address of the cosignee or purchaser, and the quantity | 14 |
| by brand style of the cigarettes so transported, provided that | 15 |
| this Section shall not be construed as to impose any | 16 |
| requirement or liability upon any common or contract carrier. | 17 |
| The Department, or any person authorized by the Department, | 18 |
| shall
sell such stamps only to persons holding valid
licenses | 19 |
| as distributors under this Act. On and after July 1, 2003, | 20 |
| payment
for such stamps must be made by means of
electronic | 21 |
| funds transfer. The Department may refuse to sell stamps to any
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| person who does not comply
with the provisions of this Act.
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| Beginning on the effective date of this amendatory Act of the | 24 |
| 92nd General
Assembly and through June 30, 2002, persons | 25 |
| holding valid licenses as
distributors
may purchase cigarette | 26 |
| tax stamps up to an amount equal to 115% of the
distributor's |
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| average monthly cigarette tax stamp purchases over the 12
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| calendar
months prior to the effective date of this amendatory | 3 |
| Act of the 92nd General
Assembly.
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| Prior to December 1, 1985, the Department shall allow a | 5 |
| distributor
21 days in which to make final
payment of the | 6 |
| amount to be paid for such stamps, by allowing the
distributor | 7 |
| to make payment for the stamps at the time of purchasing them
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| with a draft which shall be in such form as the Department | 9 |
| prescribes, and
which shall be payable within 21 days | 10 |
| thereafter: Provided that such
distributor has filed with the | 11 |
| Department, and has received the
Department's approval of, a | 12 |
| bond, which is in addition to the bond required
under Section 4 | 13 |
| of this Act, payable to the Department in an amount equal
to | 14 |
| 80% of such distributor's average monthly tax liability to
the | 15 |
| Department under this Act during the preceding calendar year or | 16 |
| $500,000,
whichever is less. The Bond shall be joint and
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| several and shall be in the form of a surety company bond in | 18 |
| such form as
the Department prescribes, or it may be in the | 19 |
| form of a bank certificate
of deposit or bank letter of credit. | 20 |
| The bond shall be conditioned upon the
distributor's payment of | 21 |
| amount of any 21-day draft which the Department
accepts from | 22 |
| that distributor for the delivery of stamps to that
distributor | 23 |
| under this Act. The distributor's failure to pay any such
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| draft, when due, shall also make such distributor automatically | 25 |
| liable to
the Department for a penalty equal to 25% of the | 26 |
| amount of such draft.
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| On and after December 1, 1985 and until July 1, 2003, the | 2 |
| Department
shall allow a distributor
30 days in which to make
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| final payment of the amount to be paid for such stamps, by | 4 |
| allowing the
distributor to make payment for the stamps at the | 5 |
| time of purchasing them
with a draft which shall be in such | 6 |
| form as the Department prescribes, and
which shall be payable | 7 |
| within 30 days thereafter, and beginning on January 1,
2003 and | 8 |
| thereafter, the draft shall be payable by means of electronic | 9 |
| funds
transfer: Provided that such
distributor has filed with | 10 |
| the Department, and has received the
Department's approval of, | 11 |
| a bond, which is in addition to the bond required
under Section | 12 |
| 4 of this Act, payable to the Department in an amount equal
to | 13 |
| 150% of such distributor's average monthly tax liability to the
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| Department under this Act during the preceding calendar year or | 15 |
| $750,000,
whichever is less, except that as to bonds filed on | 16 |
| or after January 1,
1987, such additional bond shall be in an | 17 |
| amount equal to 100% of such
distributor's average monthly tax | 18 |
| liability under this Act during the
preceding calendar year or | 19 |
| $750,000, whichever is less. The bond shall be
joint and | 20 |
| several and shall be in the form of a surety company bond in | 21 |
| such
form as the Department prescribes, or it may be in the | 22 |
| form of a bank
certificate of deposit or bank letter of credit.
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| The bond shall be conditioned upon the distributor's payment of | 24 |
| the amount
of any 30-day draft which the Department accepts | 25 |
| from that distributor for
the delivery of stamps to that | 26 |
| distributor under this Act. The
distributor's failure to pay |
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| any such draft, when due, shall also make such
distributor | 2 |
| automatically liable to the Department for a penalty equal to
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| 25% of the amount of such draft.
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| Every prior continuous compliance taxpayer shall be exempt | 5 |
| from all
requirements under this Section concerning the | 6 |
| furnishing of such bond, as
defined in this Section, as a | 7 |
| condition precedent to his being authorized
to engage in the | 8 |
| business licensed under this Act. This exemption shall
continue | 9 |
| for each such taxpayer until such time as he may be determined | 10 |
| by
the Department to be delinquent in the filing of any | 11 |
| returns, or is
determined by the Department (either through the | 12 |
| Department's issuance of a
final assessment which has become | 13 |
| final under the Act, or by the taxpayer's
filing of a return | 14 |
| which admits tax to be due that is not paid) to be
delinquent | 15 |
| or deficient in the paying of any tax under this Act, at which
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| time that taxpayer shall become subject to the bond | 17 |
| requirements of this
Section and, as a condition of being | 18 |
| allowed to continue to engage in the
business licensed under | 19 |
| this Act, shall be required to furnish bond to the
Department | 20 |
| in such form as provided in this Section. Such taxpayer shall
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| furnish such bond for a period of 2 years, after which, if the | 22 |
| taxpayer has
not been delinquent in the filing of any returns, | 23 |
| or delinquent or
deficient in the paying of any tax under this | 24 |
| Act, the Department may
reinstate such person as a prior | 25 |
| continuance compliance taxpayer. Any
taxpayer who fails to pay | 26 |
| an admitted or established liability under this
Act may also be |
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| required to post bond or other acceptable security with the
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| Department guaranteeing the payment of such admitted or | 3 |
| established liability.
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| Any person aggrieved by any decision of the Department | 5 |
| under this
Section may, within the time allowed by law, protest | 6 |
| and request a hearing,
whereupon the Department shall give | 7 |
| notice and shall hold a hearing in
conformity with the | 8 |
| provisions of this Act and then issue its final
administrative | 9 |
| decision in the matter to such person. In the absence of
such a | 10 |
| protest filed within the time allowed by law, the Department's
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| decision shall become final without any further determination | 12 |
| being made or
notice given.
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| The Department shall discharge any surety and shall release | 14 |
| and return
any bond or security deposited, assigned, pledged, | 15 |
| or otherwise provided to
it by a taxpayer under this Section | 16 |
| within 30 days after:
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| (1) Such taxpayer becomes a prior continuous compliance | 18 |
| taxpayer; or
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| (2) Such taxpayer has ceased to collect receipts on which | 20 |
| he is
required to remit tax to the Department, has filed a | 21 |
| final tax return, and
has paid to the Department an amount | 22 |
| sufficient to discharge his remaining
tax liability as | 23 |
| determined by the Department under this Act. The
Department | 24 |
| shall make a final determination of the taxpayer's outstanding
| 25 |
| tax liability as expeditiously as possible after his final tax | 26 |
| return has
been filed. If the Department cannot make such final |
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| determination within
45 days after receiving the final tax | 2 |
| return, within such period it shall
so notify the taxpayer, | 3 |
| stating its reasons therefor.
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| The Department may authorize distributors to affix revenue | 5 |
| tax stamps by
imprinting tax meter stamps upon original | 6 |
| packages of cigarettes. The
Department shall adopt rules and | 7 |
| regulations relating to the imprinting of
such tax meter stamps | 8 |
| as will result in payment of the proper taxes as
herein | 9 |
| imposed. No distributor may affix revenue tax stamps to | 10 |
| original
packages of cigarettes by imprinting tax meter stamps | 11 |
| thereon unless such
distributor has first obtained permission | 12 |
| from the Department to employ
this method of affixation. The | 13 |
| Department shall regulate the use of tax
meters and may, to | 14 |
| assure the proper collection of the taxes imposed by
this Act, | 15 |
| revoke or suspend the privilege, theretofore granted by the
| 16 |
| Department to any distributor, to imprint tax meter stamps upon | 17 |
| original
packages of cigarettes.
| 18 |
| Illinois cigarette manufacturers who place their | 19 |
| cigarettes in original
packages which are contained inside a | 20 |
| sealed transparent wrapper, and
similar out-of-State cigarette | 21 |
| manufacturers who elect to qualify and are
accepted by the | 22 |
| Department as distributors under Section 4b of this Act,
shall | 23 |
| pay the taxes imposed by this Act by remitting the amount | 24 |
| thereof to
the Department by the 5th day of each month covering | 25 |
| cigarettes shipped or
otherwise delivered in Illinois to | 26 |
| purchasers during the preceding calendar
month. Such |
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| manufacturers of cigarettes in original packages which are
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| contained inside a sealed transparent wrapper, before | 3 |
| delivering such
cigarettes or causing such cigarettes to be | 4 |
| delivered in this State to
purchasers, shall evidence their | 5 |
| obligation to remit the taxes due with
respect to such | 6 |
| cigarettes by imprinting language to be prescribed by the
| 7 |
| Department on each original package of such cigarettes | 8 |
| underneath the
sealed transparent outside wrapper of such | 9 |
| original package, in such place
thereon and in such manner as | 10 |
| the Department may designate. Such imprinted
language shall | 11 |
| acknowledge the manufacturer's payment of or liability for
the | 12 |
| tax imposed by this Act with respect to the distribution of | 13 |
| such
cigarettes.
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| A distributor shall not affix, or cause to be affixed, any | 15 |
| stamp or imprint
to a package of cigarettes, as provided for in | 16 |
| this Section, if the tobacco
product
manufacturer, as defined | 17 |
| in Section 10 of the Tobacco Product Manufacturers'
Escrow
Act, | 18 |
| that made or sold the cigarettes has failed to become a | 19 |
| participating
manufacturer, as defined in subdivision (a)(1) | 20 |
| of Section 15 of the Tobacco
Product
Manufacturers' Escrow Act, | 21 |
| or has failed to create a qualified escrow fund for
any | 22 |
| cigarettes manufactured by the tobacco product manufacturer | 23 |
| and sold in
this State or otherwise failed to bring itself into | 24 |
| compliance with subdivision
(a)(2) of Section 15 of the Tobacco | 25 |
| Product
Manufacturers' Escrow Act.
| 26 |
| (Source: P.A. 92-322, eff. 1-1-02; 92-536, eff. 6-6-02;
92-737, |
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| eff. 7-25-02; 93-22, eff. 6-20-03.)
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| (35 ILCS 130/3-10)
| 3 |
| Sec. 3-10. Cigarette enforcement.
| 4 |
| (a) Prohibitions. It is unlawful for any person:
| 5 |
| (1) to sell or distribute in this State; to acquire, | 6 |
| hold, own, possess,
or
transport, for sale or distribution | 7 |
| in this State; or to import, or cause to be
imported into | 8 |
| this State for sale or distribution in this State:
| 9 |
| (A) any cigarettes the package of which:
| 10 |
| (i) bears any statement, label, stamp, | 11 |
| sticker, or notice
indicating that the | 12 |
| manufacturer did not intend the cigarettes to be
| 13 |
| sold, distributed, or used in the United States, | 14 |
| including but not
limited to labels stating "For | 15 |
| Export Only", "U.S. Tax Exempt",
"For Use Outside | 16 |
| U.S.", or similar wording; or
| 17 |
| (ii) does not comply with:
| 18 |
| (aa) all requirements imposed by or | 19 |
| pursuant to
federal law regarding warnings and | 20 |
| other information on
packages of cigarettes | 21 |
| manufactured, packaged, or imported
for sale, | 22 |
| distribution, or use in the United States, | 23 |
| including
but not limited to the precise | 24 |
| warning labels specified in the
federal | 25 |
| Cigarette Labeling and Advertising Act, 15 |
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| U.S.C.
1333; and
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| (bb) all federal trademark and copyright | 3 |
| laws;
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| (B) any cigarettes imported into the United States | 5 |
| in violation of
26 U.S.C. 5754 or any other federal | 6 |
| law, or implementing federal
regulations;
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| (C) any cigarettes that such person otherwise | 8 |
| knows or has reason
to know the manufacturer did not | 9 |
| intend to be sold, distributed, or used in
the United | 10 |
| States; or
| 11 |
| (D) any cigarettes for which there has not been | 12 |
| submitted to the
Secretary of the U.S. Department of | 13 |
| Health and Human Services the list or
lists of the | 14 |
| ingredients added to tobacco in the manufacture of the
| 15 |
| cigarettes required by the federal Cigarette Labeling | 16 |
| and Advertising Act,
15 U.S.C. 1335a;
| 17 |
| (2) to alter the package of any cigarettes, prior to | 18 |
| sale or distribution
to
the
ultimate consumer, so as to | 19 |
| remove, conceal, or obscure:
| 20 |
| (A) any statement, label, stamp, sticker, or | 21 |
| notice described in
subdivision (a)(1)(A)(i) of this | 22 |
| Section;
| 23 |
| (B) any health warning that is not specified in, or | 24 |
| does not conform
with the requirements of, the federal | 25 |
| Cigarette Labeling and Advertising
Act, 15 U.S.C. | 26 |
| 1333; or
|
|
|
|
09500SB0801sam001 |
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|
| 1 |
| (3) to affix any stamp required pursuant to this Act to | 2 |
| the package of any
cigarettes described in subdivision | 3 |
| (a)(1) of this Section or altered in
violation of
| 4 |
| subdivision (a)(2) ; or . | 5 |
| (4) to knowingly possess, or possess for sale, | 6 |
| contraband cigarettes.
| 7 |
| (b) Documentation. On the first business day of each month, | 8 |
| each person
licensed
to affix the State tax stamp to cigarettes | 9 |
| shall file with the Department, for
all cigarettes
imported | 10 |
| into the United States to which the person has affixed the tax | 11 |
| stamp
in the
preceding month:
| 12 |
| (1) a copy of:
| 13 |
| (A) the permit issued pursuant to the Internal | 14 |
| Revenue Code, 26
U.S.C. 5713, to the person importing | 15 |
| the cigarettes into the United States
allowing the | 16 |
| person to import the cigarettes; and
| 17 |
| (B) the customs form containing, with respect to | 18 |
| the cigarettes, the
internal revenue tax information | 19 |
| required by the U.S. Bureau of Alcohol,
Tobacco and | 20 |
| Firearms;
| 21 |
| (2) a statement, signed by the person under penalty of | 22 |
| perjury, which shall
be treated as confidential by the | 23 |
| Department and exempt from disclosure under
the Freedom of | 24 |
| Information Act, identifying the brand and brand styles of | 25 |
| all such
cigarettes, the quantity of each brand style of | 26 |
| such cigarettes, the supplier of such
cigarettes, and the |
|
|
|
09500SB0801sam001 |
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| 1 |
| person or persons, if any, to whom such cigarettes have | 2 |
| been
conveyed for resale; and a separate statement, signed | 3 |
| by the individual under
penalty of perjury, which shall not | 4 |
| be treated as confidential or exempt from
disclosure, | 5 |
| separately identifying the brands and brand styles of such
| 6 |
| cigarettes;
and
| 7 |
| (3) a statement, signed by an officer of the | 8 |
| manufacturer or importer
under penalty of perjury, | 9 |
| certifying that the manufacturer or importer has
complied | 10 |
| with:
| 11 |
| (A) the package health warning and ingredient | 12 |
| reporting
requirements of the federal Cigarette | 13 |
| Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 14 |
| with respect to such cigarettes; and
| 15 |
| (B) the provisions of Exhibit T of the Master | 16 |
| Settlement Agreement
entered in
the case of People of | 17 |
| the State of Illinois v. Philip Morris, et al. (Circuit
| 18 |
| Court of Cook County, No. 96-L13146), including a | 19 |
| statement
indicating whether the manufacturer is, or | 20 |
| is not, a participating tobacco
manufacturer within | 21 |
| the meaning of Exhibit T.
| 22 |
| (c) Administrative sanctions.
| 23 |
| (1) Upon finding that a distributor has committed any | 24 |
| of the acts
prohibited by
subsection
(a), knowing or having | 25 |
| reason to know that he or she has done so, or has failed
to | 26 |
| comply
with any requirement of subsection (b), the |
|
|
|
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| Department
may revoke or suspend the license or licenses of | 2 |
| any
distributor pursuant to the procedures set forth in | 3 |
| Section 6 and impose on the
distributor a civil penalty in | 4 |
| an amount not to exceed the greater of 500% of
the
retail | 5 |
| value of the cigarettes involved or $5,000.
| 6 |
| (2) Cigarettes that are acquired, held, owned, | 7 |
| possessed, transported in,
imported into, or sold or | 8 |
| distributed in this State in violation of this
Section | 9 |
| shall be deemed contraband under this Act and are subject | 10 |
| to seizure
and forfeiture as provided in this Act, and all | 11 |
| such cigarettes seized and
forfeited shall be destroyed. | 12 |
| Such cigarettes shall be deemed contraband
whether the | 13 |
| violation of this Section is knowing or otherwise.
| 14 |
| (d) Unfair trade practices. A violation of subsection (a) | 15 |
| or subsection
(b) of this Section shall constitute an unlawful | 16 |
| practice as provided in the
Consumer Fraud and Deceptive | 17 |
| Business Practices Act.
| 18 |
| (e) Unfair cigarette sales. For purposes of the Trademark | 19 |
| Registration and
Protection Act and the Counterfeit Trademark | 20 |
| Act, cigarettes imported or
reimported into the United States | 21 |
| for sale or distribution under any trade
name, trade dress, or | 22 |
| trademark that is the same as, or is confusingly similar
to, | 23 |
| any trade name, trade dress, or trademark used for cigarettes | 24 |
| manufactured
in the United States for sale or distribution in | 25 |
| the United States shall be
presumed to have been purchased | 26 |
| outside of the ordinary channels of trade.
|
|
|
|
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| (f) General provisions.
| 2 |
| (1) This Section shall be enforced by the Department; | 3 |
| provided that, at
the request of the Director of Revenue or | 4 |
| the Director's duly authorized agent,
the State police and | 5 |
| all local police authorities shall enforce the provisions
| 6 |
| of this Section. The Attorney General has concurrent power | 7 |
| with the State's
Attorney of any county to enforce this | 8 |
| Section.
| 9 |
| (2) For the purpose of enforcing this Section, the | 10 |
| Director of Revenue and
any agency to which the Director | 11 |
| has delegated enforcement
responsibility pursuant to | 12 |
| subdivision (f)(1) may request information from any
State | 13 |
| or local agency and may share information with and request | 14 |
| information
from any federal agency and any agency of any | 15 |
| other state or any local agency
of any other state.
| 16 |
| (3) In addition to any other remedy provided by law, | 17 |
| including
enforcement as provided in subdivision (a)(1), | 18 |
| any person may bring an action
for appropriate injunctive | 19 |
| or other equitable relief for a violation of this
Section; | 20 |
| actual damages, if any, sustained by reason of the | 21 |
| violation; and, as
determined by the court, interest on the | 22 |
| damages from the date of the
complaint, taxable costs, and | 23 |
| reasonable attorney's fees. If the trier of fact
finds that | 24 |
| the violation is flagrant, it may increase recovery to an | 25 |
| amount not
in excess of 3 times the actual damages | 26 |
| sustained by reason of the violation.
|
|
|
|
09500SB0801sam001 |
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| (g) Definitions. As used in this Section:
| 2 |
| "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 3 |
| "Package" means that term as defined in 15 U.S.C. 1332(4).
| 4 |
| (h) Applicability.
| 5 |
| (1) This Section does not apply to:
| 6 |
| (A) cigarettes allowed to be imported or brought | 7 |
| into the United
States for personal use; and
| 8 |
| (B) cigarettes sold or intended to be sold as | 9 |
| duty-free merchandise
by a duty-free sales enterprise | 10 |
| in accordance with the provisions of 19
U.S.C. 1555(b) | 11 |
| and any implementing regulations; except that this | 12 |
| Section
shall apply to any such cigarettes that are | 13 |
| brought back into the customs
territory for resale | 14 |
| within the customs territory.
| 15 |
| (2) The penalties provided in this Section are in | 16 |
| addition to any other
penalties imposed under other | 17 |
| provision of law.
| 18 |
| (Source: P.A. 91-810, eff. 6-13-00.)
| 19 |
| (35 ILCS 130/3-15 new) | 20 |
| Sec. 3-15. Criminal and civil penalties. | 21 |
| (a) Civil penalties. | 22 |
| (1) Distributors and manufacturers. Except as | 23 |
| otherwise provided in this Section, a first violation of | 24 |
| any provision of this Act by a manufacturer or distributor | 25 |
| shall, in addition to any other penalty provided in this |
|
|
|
09500SB0801sam001 |
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|
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| Act, be punishable by a fine of $5,000 for each separate | 2 |
| violation, which shall be recovered, with costs of suit, in | 3 |
| a civil action. Any subsequent violation of any provision | 4 |
| of this Act by a manufacturer or distributor shall be | 5 |
| punishable by a fine of $10,000 for each separate | 6 |
| violation. In no case shall the fine imposed under this | 7 |
| paragraph exceed 10 times the retail value of the | 8 |
| cigarettes. | 9 |
| (2) Retailers. Except as otherwise provided in this | 10 |
| Section, a first violation of any provision of this Act by | 11 |
| a retailer shall, in addition to any other penalty provided | 12 |
| in this Act, be punishable by a fine of $1,000 for each | 13 |
| separate violation, which shall be recovered, with costs of | 14 |
| suit, in a civil action. Any subsequent violation of any | 15 |
| provision of this Act by a retailer shall be punishable by | 16 |
| a fine of $2,000 for each separate violation. In no case | 17 |
| shall the fine imposed under this paragraph exceed 10 times | 18 |
| the retail value of the cigarettes. | 19 |
| (3) Failure to pay tax. Any person that fails to pay | 20 |
| any tax imposed by this State at the time prescribed by law | 21 |
| or regulations shall, in addition to any other penalty | 22 |
| provided in this Act, be liable to a penalty of 3 times the | 23 |
| tax due but unpaid, to help defray the costs of detection | 24 |
| and investigation and any consequential damages. In no case | 25 |
| shall the fine imposed under this paragraph exceed 10 times | 26 |
| the retail value of the cigarettes. |
|
|
|
09500SB0801sam001 |
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|
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| (4) Civil forfeiture. | 2 |
| (A) All cigarettes which are held for sale or | 3 |
| distribution within this State in
violation of the | 4 |
| requirements of this Act shall be forfeited to this | 5 |
| State. All cigarettes forfeited to this State under | 6 |
| this Act shall be destroyed. The Department may, prior | 7 |
| to any destruction of cigarettes, permit the true | 8 |
| holder of the trademark rights in the cigarette brand | 9 |
| to inspect such contraband cigarettes, in order to | 10 |
| assist the Department in any investigation regarding | 11 |
| such cigarettes. | 12 |
| (B) Any person that, with intent to defraud the | 13 |
| State: | 14 |
| (i) fails to keep or make any record, return, | 15 |
| report, or inventory required
by this Act; | 16 |
| (ii) keeps or makes any false or fraudulent | 17 |
| record, return, report, or
inventory required by | 18 |
| this Act; | 19 |
| (iii) refuses to pay any tax imposed by this | 20 |
| Act; or | 21 |
| (iv) attempts in any manner to evade or defeat | 22 |
| the requirements of this Act
shall forfeit to the | 23 |
| State all fixtures, equipment, and other materials | 24 |
| with a substantial connection to such conduct. | 25 |
| (C) A distributor or retailer shall not be required | 26 |
| to forfeit fixtures, equipment,
and all other |
|
|
|
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| materials and personal property on the premises if such | 2 |
| distributor or retailer: | 3 |
| (i) acted in good faith; | 4 |
| (ii) was not involved in or aware of the | 5 |
| unlawful activity prohibited by this
Act; and | 6 |
| (iii) did all that reasonably could be | 7 |
| expected under the circumstances to
prevent | 8 |
| violations of this Act. | 9 |
| (5) Notwithstanding any other provision of law, the | 10 |
| Department may use proceeds from civil penalties imposed | 11 |
| under this Section to offset necessary and reasonable | 12 |
| expenses incurred in the detection and investigation of the | 13 |
| failure of any person to pay any cigarette tax imposed by | 14 |
| this State. | 15 |
| (b) Criminal penalties. | 16 |
| (1) Fraudulent offenses. Whoever intentionally fails | 17 |
| to comply with any of the requirements of this Act or | 18 |
| regulations prescribed hereunder shall, in addition to any | 19 |
| other penalty provided in this Act, for each such offense, | 20 |
| be guilty of a Class 3 felony. | 21 |
| (2) Knowing offenses. Whoever, knowingly violates any | 22 |
| of the requirements of this Act or regulations prescribed | 23 |
| hereunder shall, in addition to any other penalty provided | 24 |
| in this Act, for each such offense, be guilty of a Class 4 | 25 |
| felony. | 26 |
| (3) Penalties for contraband. Notwithstanding any |
|
|
|
09500SB0801sam001 |
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|
| 1 |
| other provision of law, the possession for sale of | 2 |
| contraband cigarettes by a manufacturer, distributor, or | 3 |
| retailer shall be punishable as follows: | 4 |
| (A) A person who commits a first knowing violation | 5 |
| shall be guilty of a Class 4 felony. | 6 |
| (B) A person who commits a subsequent knowing | 7 |
| violation shall be guilty of a Class 3 felony and shall | 8 |
| have his or her license, permit, or sub-certificate | 9 |
| revoked by the Department. In no case shall the fine | 10 |
| imposed under this paragraph exceed ten times the | 11 |
| retail value of the cigarettes. | 12 |
| (4) For purposes of this Section, the term contraband | 13 |
| cigarettes includes cigarettes that have false | 14 |
| manufacturing labels or packs of cigarettes bearing | 15 |
| counterfeit tax stamps. Any contraband cigarette seized by | 16 |
| this State shall be destroyed. The Department may, prior to | 17 |
| any destruction of cigarettes, permit the true holder of | 18 |
| the trademark rights in the cigarette brand to inspect such | 19 |
| contraband cigarettes, in order to assist the Department in | 20 |
| any investigation regarding such cigarettes. | 21 |
| (5) The penalties provided in paragraph (3) shall not | 22 |
| apply where a licensed distributor is in possession of | 23 |
| contraband cigarettes as a result of such cigarettes being | 24 |
| returned to the distributor by a retailer if such | 25 |
| distributor promptly notified appropriate law enforcement | 26 |
| authorities. |
|
|
|
09500SB0801sam001 |
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|
| 1 |
| (6) Criminal forfeiture. | 2 |
| (A) Notwithstanding any other provision of law, | 3 |
| the possession for sale of contraband cigarettes by a | 4 |
| manufacturer, distributor, or retailer shall, after | 5 |
| notice and hearing, result in the forfeiture to this | 6 |
| State of the product and related machinery and | 7 |
| equipment used in the production of contraband | 8 |
| cigarettes, or to falsely mark cigarettes to reflect | 9 |
| the payment of excise taxes. | 10 |
| (B)The knowing sale or possession for sale of | 11 |
| contraband cigarettes shall, after
notice and hearing, | 12 |
| result in the seizure of all related machinery and | 13 |
| equipment. | 14 |
| (C) All cigarettes forfeited to this State under | 15 |
| this Section shall be destroyed. The
Department may, | 16 |
| prior to any destruction of cigarettes, permit the true | 17 |
| holder of the trademark rights in the cigarette brand | 18 |
| to inspect such contraband cigarettes, in order to | 19 |
| assist the Department in any investigation regarding | 20 |
| such cigarettes. | 21 |
| (35 ILCS 130/3-20 new)
| 22 |
| Sec. 3-20. Limitation on retail sales. A retailer shall not | 23 |
| knowingly sell or distribute more than 10 cartons of cigarettes | 24 |
| to any person in a single transaction or in any series of | 25 |
| transactions within a twenty-four hour period; provided, |
|
|
|
09500SB0801sam001 |
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|
| 1 |
| however, that a retailer that is licensed as a distributor may | 2 |
| make any sales permitted to be made by a distributor under this | 3 |
| Act when acting in that capacity.
| 4 |
| (35 ILCS 130/4) (from Ch. 120, par. 453.4)
| 5 |
| Sec. 4. Distributor's license. No person may engage in | 6 |
| business as a distributor of cigarettes in this
State within | 7 |
| the meaning of the first 2 definitions of distributor in
| 8 |
| Section 1 of this Act without first having obtained a license | 9 |
| therefor from
the Department. Application for license shall be | 10 |
| made to the Department in
form as furnished and prescribed by | 11 |
| the Department. Each applicant for a
license under this Section | 12 |
| shall furnish to the Department on the form
signed and verified | 13 |
| by the applicant under penalty of perjury the following | 14 |
| information:
| 15 |
| (a) If the applicant is an individual, the name and | 16 |
| business address of the applicant; | 17 |
| (b) If the applicant is a firm, partnership, or | 18 |
| association, the name and business address of
each of its | 19 |
| members and any related party; | 20 |
| (c) If the applicant is an individual, the identity of | 21 |
| any license holder in which the individual, directly or | 22 |
| indirectly, owns more than 15 percent of the ownership | 23 |
| interests; | 24 |
| (d) If the applicant is a corporation or limited | 25 |
| liability company, the name and business address of each of |
|
|
|
09500SB0801sam001 |
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| its officers and the name and business address of any | 2 |
| person that owns, directly or indirectly, in the aggregate, | 3 |
| more than 15 percent of the ownership interests in the | 4 |
| corporation or limited liability company and the name and | 5 |
| business address of any license holder in which the | 6 |
| applicant owns more than 15 percent of the ownership | 7 |
| interests; | 8 |
| (e) The name under which such applicant regularly does | 9 |
| business; | 10 |
| (f) The physical address of the applicant's principal | 11 |
| place of business and any other place of
business within | 12 |
| this State; | 13 |
| (g) In the case of a distributor who manufacturers or | 14 |
| imports cigarettes, the brand styles of cigarettes the | 15 |
| applicant manufactures or imports; | 16 |
| (h) The kind or nature of the business to be conducted; | 17 |
| (i) Sufficient information to demonstrate that the | 18 |
| applicant has complied or will comply with
all of the | 19 |
| requirements of this Act, including the identity of any | 20 |
| related party; | 21 |
| (j) Whether the applicant has committed any act in the | 22 |
| previous 5 years that would render the
applicant ineligible | 23 |
| for a license or whether the applicant has been convicted | 24 |
| of a crime related to contraband cigarettes, punishable by | 25 |
| imprisonment of one year or more; or
| 26 |
| (a) The name and address of the applicant;
|
|
|
|
09500SB0801sam001 |
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|
| 1 |
| (b) The address of the location at which the applicant | 2 |
| proposes to
engage in business as a distributor of | 3 |
| cigarettes in this State;
| 4 |
| (k) (c) Such other additional information as the | 5 |
| Department may lawfully
require by its rules and | 6 |
| regulations.
| 7 |
| The annual license fee payable to the Department for each | 8 |
| distributor's
license shall be $250. The purpose of such annual | 9 |
| license fee is to defray
the cost, to the Department, of
| 10 |
| serializing cigarette tax stamps. Each applicant for license | 11 |
| shall pay such
fee to the Department at the time of submitting | 12 |
| his application for license
to the Department.
| 13 |
| Every applicant who is required to procure a distributor's | 14 |
| license shall
file with his application a joint and several | 15 |
| bond. Such bond shall be
executed to the Department of Revenue, | 16 |
| with good and sufficient surety or
sureties residing or | 17 |
| licensed to do business within the State of Illinois,
in the | 18 |
| amount of $2,500, conditioned upon the true and faithful | 19 |
| compliance
by the licensee with all of the provisions of this | 20 |
| Act. Such bond, or a
reissue thereof, or a substitute therefor, | 21 |
| shall be kept in effect during
the entire period covered by the | 22 |
| license. A separate application for
license shall be made, a | 23 |
| separate annual license fee paid, and a separate
bond filed, | 24 |
| for each place of business at which a person who is required to
| 25 |
| procure a distributor's license under this Section proposes to | 26 |
| engage in
business as a distributor in Illinois under this Act.
|
|
|
|
09500SB0801sam001 |
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| The following are ineligible to receive a distributor's | 2 |
| license under
this Act:
| 3 |
| (1) a person who is not of good character and | 4 |
| reputation in the
community in which he resides;
| 5 |
| (2) a person who has been convicted of a felony | 6 |
| under any Federal or
State law, if the Department, | 7 |
| after investigation and a hearing, if
requested by the | 8 |
| applicant, determines that such person has not been
| 9 |
| sufficiently rehabilitated to warrant the public | 10 |
| trust;
| 11 |
| (3) a corporation, if any officer, manager or | 12 |
| director thereof, or any
stockholder or stockholders | 13 |
| owning in the aggregate more than 5% of the
stock of | 14 |
| such corporation, would not be eligible to receive a | 15 |
| license under
this Act for any reason. | 16 |
| (4) a person, or any person who owns more than 15 | 17 |
| percent of the ownership interests in a person or a | 18 |
| related party who: | 19 |
| (a) owes, at the time of application, $500 or | 20 |
| more in delinquent cigarette taxes that have been | 21 |
| determined by law to be due and unpaid, unless the | 22 |
| license applicant has entered into an agreement | 23 |
| approved by the Department to pay the amount due; | 24 |
| (b) had a license under this Act revoked within | 25 |
| the past two years by the Department for willful | 26 |
| misconduct relating to stolen or contraband |
|
|
|
09500SB0801sam001 |
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|
| 1 |
| cigarettes or has been convicted of a State or | 2 |
| federal crime, punishable by imprisonment of one | 3 |
| year or more, relating to stolen or contraband | 4 |
| cigarettes; | 5 |
| (c) is a distributor who manufactures | 6 |
| cigarettes who is neither (i) a participating | 7 |
| manufacturer as defined in subsection II(jj) of | 8 |
| the "Master Settlement Agreement" as defined in | 9 |
| Sections 10 of the Tobacco Products Manufacturers' | 10 |
| Escrow Act and the Tobacco Products Manufacturers' | 11 |
| Escrow Enforcement Act of 2003 (30 ILCS 168/10 and | 12 |
| 30 ILCS 167/10); nor (ii) in full compliance with | 13 |
| Tobacco Products Manufacturers' Escrow Act and the | 14 |
| Tobacco Products Manufacturers' Escrow Enforcement | 15 |
| Act of 2003 (30 ILCS 168/ and 30 ILCS 167/); | 16 |
| (d) has been found to have willfully imported | 17 |
| or caused to be imported into the United States for | 18 |
| sale or distribution any cigarette in violation of | 19 |
| 19 U.S.C. 1681a; | 20 |
| (e) has been found to have willfully imported | 21 |
| or caused to be imported into the United States for | 22 |
| sale or distribution or manufactured for sale or | 23 |
| distribution in the United States any cigarette | 24 |
| that does not fully comply with the Federal | 25 |
| Cigarette Labeling and Advertising Act (15 U.S.C. | 26 |
| 1331, et. seq.); or |
|
|
|
09500SB0801sam001 |
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LRB095 05480 HLH 48677 a |
|
| 1 |
| (f) has willfully made a material false | 2 |
| statement in the application or has willfully | 3 |
| failed to produce records required to be | 4 |
| maintained by this Act.
| 5 |
| The Department, upon receipt of an application, license fee | 6 |
| and bond in
proper form, from a person who is eligible to | 7 |
| receive a distributor's
license under this Act, shall issue to | 8 |
| such applicant a revocable license in form as
prescribed by the | 9 |
| Department, which license shall permit the applicant to
which | 10 |
| it is issued to engage in business as a distributor at the | 11 |
| place
shown in his application. A distributor that operates at | 12 |
| multiple locations within this State must possess a separate, | 13 |
| individual license for each such location. To assist in the | 14 |
| valid administrative needs of the Department, the Department | 15 |
| shall assign each licensee a unique numerical identifier. All | 16 |
| licenses issued by the Department under this
Act shall be valid | 17 |
| for not to exceed one year after issuance unless sooner
| 18 |
| revoked, canceled or suspended as provided in this Act. No | 19 |
| license issued
under this Act is transferable or assignable. | 20 |
| Such license shall be
conspicuously displayed in the place of | 21 |
| business conducted by the licensee
in Illinois under such | 22 |
| license. No distributor licensee acquires any vested interest | 23 |
| or compensable property right in a license issued under this | 24 |
| Act. | 25 |
| A licensed distributor shall notify the Department of any | 26 |
| change in the information contained on the application form, |
|
|
|
09500SB0801sam001 |
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LRB095 05480 HLH 48677 a |
|
| 1 |
| including any change in ownership and shall do so within 30 | 2 |
| days after any such change.
| 3 |
| Any person aggrieved by any decision of the Department | 4 |
| under this Section
may, within 20 days after notice of the | 5 |
| decision, protest and request a
hearing. Upon receiving a | 6 |
| request for a hearing, the Department shall give
notice to the | 7 |
| person requesting the hearing of the time and place fixed for | 8 |
| the
hearing and shall hold a hearing in conformity with the | 9 |
| provisions of this Act
and then issue its final administrative | 10 |
| decision in the matter to that person.
In the absence of a | 11 |
| protest and request for a hearing within 20 days, the
| 12 |
| Department's decision shall become final without any further | 13 |
| determination
being made or notice given.
| 14 |
| (Source: P.A. 91-901, eff. 1-1-01; 92-322, eff. 1-1-02.)
| 15 |
| (35 ILCS 130/4c new) | 16 |
| Sec. 4c. Retailer's sub-certificate of registration. No | 17 |
| person may engage in business as a retailer in this State | 18 |
| without having obtained both a certificate of registration | 19 |
| described in Section 2a of the Retailers' Occupation Tax Act | 20 |
| (35 ILCS 120/2a) and a sub-certificate of registration | 21 |
| described in this Section. To engage in the business of selling | 22 |
| cigarettes at retail, retailers must obtain and maintain a | 23 |
| sub-certificate of registration from the Department prior to | 24 |
| the date of issuance or renewal of a retailer certificate of | 25 |
| registration. Such retailer sub-certificates shall be issued |
|
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| without charge in such form as the Department may prescribe and | 2 |
| shall not be transferable or assignable. | 3 |
| The expiration date of a retailer's sub-certificate of | 4 |
| registration shall be that of the certificate of registration | 5 |
| to which the sub-certificate relates, but shall not be valid | 6 |
| after the expiration of 5 years from the date of its issuance | 7 |
| or last renewal. The retailer's sub-certificate of | 8 |
| registration shall not renew automatically. Sub-certificates | 9 |
| of registration shall be renewed only upon timely application. | 10 |
| The Department shall issue sub-certificates of | 11 |
| registration to retailers pursuant to this Act and under such | 12 |
| terms and conditions as it may determine to further the | 13 |
| requirements of this Act for each separate place of business | 14 |
| for each retailer within this State. Retailers shall | 15 |
| prominently display the appropriate sub-certificate of | 16 |
| registration at each place of business in such a manner as to | 17 |
| ensure that it is visible to all persons entering the place of | 18 |
| business. All sub-certificates of registration shall bear the | 19 |
| same registration number as that appearing upon the certificate | 20 |
| of registration to which the sub-certificate relates. | 21 |
| Application for a retailer's sub-certificate of | 22 |
| registration or a renewal thereof shall be made to the | 23 |
| Department upon forms furnished and prescribed by the | 24 |
| Department. Each such application shall be signed and verified | 25 |
| under penalty of perjury and shall state: | 26 |
| (1) if the applicant is an individual, the name and |
|
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| business address of the applicant; | 2 |
| (2) if the applicant is a firm, partnership, or | 3 |
| association, the name and business address of each of its | 4 |
| members and any related party; | 5 |
| (3) if the applicant is an individual, the identity of | 6 |
| any distributor, manufacturer, or retailer in which the | 7 |
| individual, directly or indirectly, owns more than 15 | 8 |
| percent of the ownership interests; | 9 |
| (4) if the applicant is a corporation or limited | 10 |
| liability company, the name and business address of each of | 11 |
| its officers and the name and business address of any | 12 |
| person who owns, directly or indirectly, in the aggregate, | 13 |
| more than 15 percent of the ownership interests in the | 14 |
| corporation or limited liability company and the name and | 15 |
| business address of any distributor, manufacturer, or | 16 |
| retailer in which the applicant owns more than 15 percent | 17 |
| of the ownership interests; | 18 |
| (5) the name under which such applicant regularly does | 19 |
| business; | 20 |
| (6) the physical address of the applicant's principal | 21 |
| place of business and any other place of business within | 22 |
| this state; | 23 |
| (7) the kind or nature of the business to be conducted; | 24 |
| (8) sufficient information to demonstrate that the | 25 |
| applicant has complied or will comply with all of the | 26 |
| requirements of this Act, including the identity of any |
|
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| related party; and | 2 |
| (9) whether the applicant has committed any act in the | 3 |
| previous 5 years that would render the applicant ineligible | 4 |
| for a sub-certificate of registration or whether the | 5 |
| applicant has been convicted of a crime related to | 6 |
| contraband cigarettes, punishable by imprisonment of one | 7 |
| year or more. | 8 |
| The Department shall not grant or renew a sub-certificate | 9 |
| of registration or allow such a sub-certificate to be | 10 |
| maintained if it determines the applicant or any person who | 11 |
| owns more than 15 percent of the ownership interests in the | 12 |
| applicant or a related party: | 13 |
| (1) owes, at the time of application, $500 or more in | 14 |
| delinquent cigarette or retail taxes that have been | 15 |
| determined by law to be due and unpaid, unless the | 16 |
| applicant has entered into an agreement approved by the | 17 |
| Department to pay the amount due; | 18 |
| (2) had a sub-certificate of registration under this | 19 |
| Act revoked within the past two years by the Department for | 20 |
| willful misconduct relating to stolen or contraband | 21 |
| cigarettes or has been convicted of a State or Federal | 22 |
| crime, punishable by imprisonment of one year or more, | 23 |
| relating to stolen or contraband cigarettes; | 24 |
| (3) has been found to have willfully imported or caused | 25 |
| to be imported into the United States for sale or | 26 |
| distribution any cigarette in violation of 19 U.S.C. 1681a; |
|
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| (4) has been found to have willfully imported or caused | 2 |
| to be imported into the United States for sale or | 3 |
| distribution or manufactured for sale or distribution in | 4 |
| the United States any cigarette that does not fully comply | 5 |
| with the Federal Cigarette Labeling and Advertising Act (15 | 6 |
| U.S.C. 1331, et. seq.); or | 7 |
| (5) has willfully made a material false statement in | 8 |
| the application or has willfully failed to produce records | 9 |
| required to be maintained by this Act. | 10 |
| A retailer shall notify the Department of any change in the | 11 |
| information contained on the application form, including any | 12 |
| change in ownership and shall do so within 30 days of any such | 13 |
| change. | 14 |
| No retailer acquires any vested interest or compensable | 15 |
| property right in a sub-certificate of registration issued | 16 |
| under this Act. | 17 |
| (35 ILCS 130/4d new) | 18 |
| Sec. 4d. Transactions only with licensed distributors, | 19 |
| out-of-state manufacturers holding a permit, and retailers | 20 |
| holding a sub-certificate of registration. A distributor or | 21 |
| manufacturer may sell or distribute cigarettes to a person | 22 |
| located or doing business within this State only if such person | 23 |
| is a licensed distributor or retailer holding a sub-certificate | 24 |
| of registration. A retailer may only sell cigarettes obtained | 25 |
| from a licensed distributor or an out-of-state manufacturer |
|
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| holding a permit. | 2 |
| (35 ILCS 130/4e new) | 3 |
| Sec. 4e. Proof of license, permit, or sub-certificate | 4 |
| required. A distributor, manufacturer, or retailer shall, | 5 |
| prior to the initial sale or exchange of cigarettes with any | 6 |
| person that is required to be licensed, hold a permit, or hold | 7 |
| a sub-certificate under this Act, require proof of a valid | 8 |
| license, permit, or sub-certificate for the relevant business | 9 |
| location issued under this Act. | 10 |
| (35 ILCS 130/4f new) | 11 |
| Sec. 4f. Maintenance of and publication of list of | 12 |
| licenses, permits, and sub-certificates issued. Within 30 days | 13 |
| after the effective date of this amendatory Act of the 95th | 14 |
| General Assembly, the Department shall create and maintain a | 15 |
| website setting forth the identity of all persons issued | 16 |
| licenses, permits, or sub-certificates under this Act and the | 17 |
| business locations of each licensee, permittee, or | 18 |
| sub-certificate holder, itemized by type of license, permit, or | 19 |
| certificate possessed, and shall update the website no less | 20 |
| frequently than once per month. The Department shall, at a | 21 |
| minimum, include on the website the legal name of the licensee, | 22 |
| permittee, or sub-certificate holder, the numerical identifier | 23 |
| issued to the licensee, permittee, or sub-certificate holder, | 24 |
| and any name under which such licensee, permittee, or |
|
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|
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| sub-certificate holder regularly does business. | 2 |
| (35 ILCS 130/4g new) | 3 |
| Sec. 4g. Maintenance of and publication of list of | 4 |
| licensees, permittees, and sub-certificate holders whose | 5 |
| licenses, permits, or sub-certificates have been suspended, | 6 |
| cancelled, or revoked. Within 30 days after the effective date | 7 |
| of this amendatory Act of the 95th General Assembly, the | 8 |
| Department shall create and maintain a website setting forth | 9 |
| the identity of all persons whose licenses, permits, or | 10 |
| sub-certificates have been suspended, cancelled, or revoked | 11 |
| under this Act within the past 3 years, itemized by type of | 12 |
| license, permit, or sub-certificate, and shall update the | 13 |
| website within 30 days after the date the Department suspends, | 14 |
| cancels, or revokes any person's license, permit, or | 15 |
| sub-certificate. The Department shall, at a minimum, include on | 16 |
| the website the legal name, the business locations, the unique | 17 |
| numerical identifier issued prior to the suspension, | 18 |
| cancellation, or revocation of the, and any name under which | 19 |
| such licensee, permittee, or sub-certificate holder regularly | 20 |
| does business.
| 21 |
| (35 ILCS 130/5) (from Ch. 120, par. 453.5)
| 22 |
| Sec. 5. Printing tax stamps. The Department shall adopt the | 23 |
| design or
designs of the tax stamps
or alternative tax indicia
| 24 |
| and shall procure the printing of such stamps
or alternative |
|
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| tax indicia
in such amounts and denominations as it deems | 2 |
| necessary to provide for the
affixation of the proper amount of | 3 |
| tax stamps
or alternative tax indicia
to each original package | 4 |
| of
cigarettes. | 5 |
| Each roll or sheet of tax stamps shall have a separate and | 6 |
| unique serial number that shall be clearly visible at the point | 7 |
| of sale. The Department shall keep records of which licensed | 8 |
| distributor or out-of-state manufacturer holding a permit | 9 |
| purchases each roll or sheet of stamps identified by serial | 10 |
| number. | 11 |
| Each licensed distributor or out-of-state manufacturer | 12 |
| holding a permit authorized by the Department to make meter | 13 |
| impressions shall be assigned a unique meter impression number, | 14 |
| which number shall not be used by any other distributor or | 15 |
| manufacturer and shall be visible and easily identifiable on | 16 |
| the impression at the point of sale on each pack of cigarettes. | 17 |
| The Department shall keep records detailing the meter | 18 |
| impression number assigned to each licensed distributor or | 19 |
| out-of-state manufacturer holding a permit.
| 20 |
| (Source: P.A. 92-322, eff. 1-1-02.)
| 21 |
| (35 ILCS 130/6a new) | 22 |
| Sec. 6a. Revocation, cancellation, or suspension of | 23 |
| retailer's sub-certificate of registration. The Department | 24 |
| may, after notice and hearing as provided for by this Act, | 25 |
| revoke, cancel or suspend a retailers' sub-certificate of |
|
|
|
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| registration for the violation of any provision of this Act, or | 2 |
| for noncompliance with any provision herein contained, or for | 3 |
| any noncompliance with any lawful rule or regulation | 4 |
| promulgated by the Department, or because the sub-certificate | 5 |
| holder is determined to be ineligible for a retailer's | 6 |
| sub-certificate of registration for any one or more of the | 7 |
| reasons provided for in Section 4c of this Act (35 ILCS | 8 |
| 130/4c). However, no such sub-certificate shall be revoked, | 9 |
| cancelled or suspended, except after a hearing by the | 10 |
| Department with notice to the retailer, as aforesaid, and | 11 |
| affording such retailer a reasonable opportunity to appear and | 12 |
| defend, and any retailer aggrieved by any decision of the | 13 |
| Department with respect thereto may have the determination of | 14 |
| the Department judicially reviewed, as herein provided. | 15 |
| A retailer's sub-certificate of registration is revoked, | 16 |
| cancelled, or suspended if the retail certificate of | 17 |
| registration to which it relates is revoked, cancelled, or | 18 |
| suspended. However, no such sub-certificate shall be revoked, | 19 |
| cancelled, or suspended, except after a hearing by the | 20 |
| Department with notice to the retailer, as aforesaid, and | 21 |
| affording such retailer a reasonable opportunity to appear and | 22 |
| defend, and any retailer aggrieved by any decision of the | 23 |
| Department with respect thereto may have the determination of | 24 |
| the Department judicially reviewed, as herein provided. | 25 |
| Any retailer aggrieved by any decision of the Department | 26 |
| under this Section may, within 20 days after notice of the |
|
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| decision, protest and request a hearing. Upon receiving a | 2 |
| request for a hearing, the Department shall give notice in | 3 |
| writing to the retailer requesting the hearing that contains a | 4 |
| statement of the charges preferred against the retailer and | 5 |
| that states the time and place fixed for the hearing. The | 6 |
| Department shall hold the hearing in conformity with the | 7 |
| provisions of this Act and then issue its final administrative | 8 |
| decision in the matter to the retailer. In the absence of a | 9 |
| protest and request for a hearing within 20 days, the | 10 |
| Department's decision shall become final without any further | 11 |
| determination being made or notice given. | 12 |
| No sub-certificate so revoked, as aforesaid, shall be | 13 |
| reissued to any such retailer within a period of 6 months after | 14 |
| the date of the final determination of such revocation. No such | 15 |
| sub-certificate shall be reissued at all so long as the person | 16 |
| who would receive the sub-certificate is ineligible to receive | 17 |
| a retailer's sub-certificate of registration under this Act for | 18 |
| any one or more of the reasons provided for in Section 4c of | 19 |
| this Act (35 ILCS 130/4c). | 20 |
| The Department, upon complaint filed in the circuit court, | 21 |
| may by injunction restrain any person who fails, or refuses, to | 22 |
| comply with any of the provisions of this Act from acting as a | 23 |
| retailer of cigarettes in this State.
| 24 |
| (35 ILCS 130/11) (from Ch. 120, par. 453.11)
| 25 |
| Sec. 11. Every distributor of cigarettes, who is required |
|
|
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| to procure a
license under this Act, shall keep within | 2 |
| Illinois, at his licensed
address, complete and accurate | 3 |
| records of cigarettes held, purchased,
manufactured, brought | 4 |
| in or caused to be brought in from without the State,
and sold, | 5 |
| or otherwise disposed of, and shall preserve and keep within
| 6 |
| Illinois at his licensed address all invoices, bills of lading, | 7 |
| sales
records, copies of bills of sale, inventory at the close | 8 |
| of each period for
which a return is required of all cigarettes | 9 |
| on hand and of all cigarette
revenue stamps, both affixed and | 10 |
| unaffixed, and other pertinent papers and
documents relating to | 11 |
| the manufacture, purchase, sale or disposition of
cigarettes. | 12 |
| All books and records and other papers and documents that are
| 13 |
| required by this Act to be kept shall be itemized by quantity | 14 |
| and brand style, itemized for each of the distributor's | 15 |
| facilities, kept in the English language, and
shall, at all | 16 |
| times during the usual business hours of the day, be subject
to | 17 |
| inspection by the Department or its duly authorized agents and | 18 |
| employees.
The Department may adopt rules that establish | 19 |
| requirements, including record
forms and formats, for records | 20 |
| required to be kept and maintained by taxpayers.
For purposes | 21 |
| of this Section, "records" means all data maintained by the
| 22 |
| taxpayer, including data on paper, microfilm, microfiche or any | 23 |
| type of
machine-sensible data compilation. Those books, | 24 |
| records, papers and documents
shall be preserved for a period | 25 |
| of at least 3 years after the date of the
documents, or the | 26 |
| date of the entries appearing in the records, unless the
|
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| Department, in writing, authorizes their destruction or | 2 |
| disposal at an earlier
date. At all times during the usual | 3 |
| business hours of the day any duly
authorized agent or employee | 4 |
| of the Department may enter any place of business
of the | 5 |
| distributor, without a search warrant, and inspect the premises | 6 |
| and the
stock or packages of cigarettes and the vending devices | 7 |
| therein contained, to
determine whether any of the provisions | 8 |
| of this Act are being violated. If such
agent or employee is | 9 |
| denied free access or is hindered or interfered with in
making | 10 |
| such examination as herein provided, the license of the | 11 |
| distributor at
such premises shall be subject to revocation by | 12 |
| the Department.
| 13 |
| (Source: P.A. 88-480.)
| 14 |
| (35 ILCS 130/11a new) | 15 |
| Sec. 11a. Retailer records. Every cigarette retailer who is | 16 |
| required to procure a sub-certificate of registration under | 17 |
| this Act shall keep within Illinois, at the corresponding place | 18 |
| of business, copies of invoices or equivalent documentation, | 19 |
| itemized by quantity and brand style, for each transaction | 20 |
| involving the sale, purchase, transfer, consignment, or | 21 |
| receipt of packs of cigarettes. | 22 |
| Records required under this Section shall be preserved on | 23 |
| the premises described in the relevant sub-certificate of | 24 |
| registration in such a manner as to ensure permanency and | 25 |
| accessibility for inspection. All books and records and other |
|
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|
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| papers and documents required by this Act to be kept shall be | 2 |
| kept in the English language, and shall, at all times during | 3 |
| the usual business hours of the day, be subject to inspection | 4 |
| by the Department or its duly authorized agents and employees. | 5 |
| Such books and records shall be preserved for a period of at | 6 |
| least 3 years after the date of the documents, or the date of | 7 |
| the entries appearing in the records. | 8 |
| At all times during the usual business hours of the day any | 9 |
| duly authorized agent or employee of the Department may enter | 10 |
| any place of business of the retailer, without a search | 11 |
| warrant, and inspect the premises and the stock or packages of | 12 |
| cigarettes and the vending devices therein contained, to | 13 |
| determine whether any of the provisions of this Act are being | 14 |
| violated. If such agent or employee is denied free access or is | 15 |
| hindered or interfered with in making such examination as | 16 |
| herein provided, the sub-certificate of the retailer at such | 17 |
| premises shall be subject to revocation by the Department. | 18 |
| The Department is authorized to disclose to the Attorney | 19 |
| General any information received under this Section and | 20 |
| requested by the Attorney General. The Department and the | 21 |
| Attorney General shall share with each other the information | 22 |
| received under this Section and may share the information with | 23 |
| other federal, State, or local agencies for purposes of | 24 |
| enforcement of this Act or the laws of the Federal government | 25 |
| or of other States.
|
|
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| (35 ILCS 130/20) (from Ch. 120, par. 453.20)
| 2 |
| Sec. 20. Whenever any peace officer of the State or any | 3 |
| duly authorized
officer or employee of the Department shall | 4 |
| have reason to believe that any
violation of this Act has | 5 |
| occurred and that the person so violating the
Act has in his, | 6 |
| her or its possession any original package of cigarettes,
not | 7 |
| tax stamped or tax imprinted underneath the sealed transparent | 8 |
| wrapper
of such original package as required by this Act, or | 9 |
| any vending device
containing such original packages to which | 10 |
| stamps have not been affixed, or
on which an authorized | 11 |
| substitute for stamps has not been imprinted
underneath the | 12 |
| sealed transparent wrapper of such original packages, as
| 13 |
| required by this Act, he may file or cause to be filed his | 14 |
| complaint in
writing, verified by affidavit, with any court | 15 |
| within whose jurisdiction
the premises to be searched are | 16 |
| situated, stating the facts upon which such
belief is founded, | 17 |
| the premises to be searched, and the property to be
seized, and | 18 |
| procure a search warrant and execute the same. Upon the
| 19 |
| execution of such search warrant, the peace officer, or officer | 20 |
| or employee
of the Department, executing such search warrant | 21 |
| shall make due return
thereof to the court issuing the same, | 22 |
| together with an inventory of the
property taken thereunder. | 23 |
| The court shall thereupon issue process against
the owner of | 24 |
| such property if he is known; otherwise, such process shall be
| 25 |
| issued against the person in whose possession the property so | 26 |
| taken is
found, if such person is known. In case of inability |
|
|
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| to serve such process
upon the owner or the person in | 2 |
| possession of the property at the time of
its seizure, as | 3 |
| hereinbefore provided, notice of the proceedings before the
| 4 |
| court shall be given as required by the statutes of the State | 5 |
| governing
cases of Attachment. Upon the return of the process | 6 |
| duly served or upon the
posting or publishing of notice made, | 7 |
| as hereinabove provided, the court or
jury, if a jury shall be | 8 |
| demanded, shall proceed to determine whether or
not such | 9 |
| property so seized was held or possessed in violation of this | 10 |
| Act,
or whether, if a vending device has been so seized, it | 11 |
| contained at the
time of its seizure original packages not tax | 12 |
| stamped or tax imprinted
underneath the sealed transparent | 13 |
| wrapper of such original packages as
required by this Act. In | 14 |
| case of a finding that the original packages
seized were not | 15 |
| tax stamped or tax imprinted underneath the sealed
transparent | 16 |
| wrapper of such original packages in accordance with the
| 17 |
| provisions of this Act, or that any vending device so seized | 18 |
| contained at
the time of its seizure original packages not tax | 19 |
| stamped or tax imprinted
underneath the sealed transparent | 20 |
| wrapper of such original packages in
accordance with the | 21 |
| provisions of this Act, judgment shall be entered
confiscating | 22 |
| and forfeiting the property to the State and ordering its
| 23 |
| delivery to the Department, and in addition thereto, the court | 24 |
| shall have
power to tax and assess the costs of the | 25 |
| proceedings.
| 26 |
| When any original packages or any cigarette vending device |
|
|
|
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| shall have
been declared forfeited to the State by any court, | 2 |
| as hereinbefore
provided, and when such confiscated and | 3 |
| forfeited property shall have been
delivered to the Department, | 4 |
| as provided in this Act, the said Department
shall destroy sell | 5 |
| such property . The Department may, prior to any destruction of | 6 |
| cigarettes, permit the true holder of the trademark rights in | 7 |
| the cigarette brand to inspect such contraband cigarettes, in | 8 |
| order to assist the Department in any investigation regarding | 9 |
| such cigarettes. for the best price obtainable and shall | 10 |
| forthwith
pay over the proceeds of such sale to the State | 11 |
| Treasurer; provided,
however, that if the value of such | 12 |
| property to be sold at any one time
shall be $500 or more, such | 13 |
| property shall be sold only to the highest and
best bidder on | 14 |
| such terms and conditions and on open competitive bidding
after | 15 |
| public advertisement, in such manner and for such terms as the
| 16 |
| Department, by rule, may prescribe.
| 17 |
| Upon making such a sale of original packages of cigarettes | 18 |
| which were
not tax stamped or tax imprinted underneath the | 19 |
| sealed transparent wrapper
of such original packages as | 20 |
| required by this Act, the Department shall
affix a distinctive | 21 |
| stamp to each of the original packages so sold
indicating that | 22 |
| the same are sold pursuant to the provisions of this
Section.
| 23 |
| (Source: Laws 1965, p. 3707.)
| 24 |
| (35 ILCS 130/21) (from Ch. 120, par. 453.21)
| 25 |
| Sec. 21. Destruction or use of forfeited property. |
|
|
|
09500SB0801sam001 |
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|
| 1 |
| (a) When any original packages of cigarettes or
any | 2 |
| cigarette vending device shall have been declared forfeited to | 3 |
| the State by
the Department, as provided in Section 18a of this | 4 |
| Act, and when all proceedings
for the judicial review of the | 5 |
| Department's decision have terminated, the
Department shall, | 6 |
| to the extent that its decision is sustained on review, | 7 |
| destroy , or maintain and use such property in an undercover | 8 |
| capacity , or sell
such property for the best price obtainable | 9 |
| and shall forthwith pay over the
proceeds of such sale to the | 10 |
| State Treasurer.
If the value of such property to be sold at | 11 |
| any one time is
$500 or more, however,
such property shall be | 12 |
| sold only to the highest and best bidder on
such terms and | 13 |
| conditions and on open competitive bidding after public
| 14 |
| advertisement, in such manner and for such terms as the | 15 |
| Department, by
rule, may prescribe .
| 16 |
| (b) The Department may, prior to any destruction of | 17 |
| cigarettes, permit the true holder of the trademark rights in | 18 |
| the cigarette brand to inspect such contraband cigarettes in | 19 |
| order to assist the Department in any investigation regarding | 20 |
| such cigarettes. If no complaint for review, as provided in | 21 |
| Section 8 of
this Act, has been filed within the time required | 22 |
| by the Administrative
Review Law, and if no stay order has been | 23 |
| entered thereunder, the
Department shall proceed to sell the | 24 |
| property for the
best price obtainable and shall forthwith pay | 25 |
| over the proceeds of such
sale to the State Treasurer. If the | 26 |
| value
of such property to be sold at any one time is $500
or |
|
|
|
09500SB0801sam001 |
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| 1 |
| more, however, such property
shall be sold only to the highest | 2 |
| and best bidder on such terms and
conditions and on open | 3 |
| competitive bidding after public
advertisement, in such manner | 4 |
| and for such terms as the Department, by
rule, may prescribe.
| 5 |
| (c) Upon making a sale of unstamped original packages of
| 6 |
| cigarettes as provided in this Section, the Department shall | 7 |
| affix
a distinctive stamp to each of the original packages so | 8 |
| sold indicating
that the same are sold under this Section.
| 9 |
| (d) Notwithstanding the foregoing, any cigarettes seized | 10 |
| under
this Act or under the Cigarette Use Tax Act may, at the | 11 |
| discretion of the
Director of Revenue, be distributed to any | 12 |
| eleemosynary institution within
the State of Illinois.
| 13 |
| (Source: P.A. 94-776, eff. 5-19-06.)
| 14 |
| (35 ILCS 130/9c rep.)
| 15 |
| (35 ILCS 130/28 rep.)
| 16 |
| Section 10. The Cigarette Tax Act is amended by repealing | 17 |
| Sections 9c and 28. | 18 |
| Section 15. The Prevention of Cigarette Sales to Minors Act | 19 |
| is amended by changing Sections 5 and 10 and by adding Sections | 20 |
| 2, 6, 7, 8, 9, 20, 25, and 30 as follows: | 21 |
| (720 ILCS 678/2 new)
| 22 |
| Sec. 2. Definitions. For the purpose of this Act: | 23 |
| "Clear and conspicuous statement" means the statement is of |
|
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| sufficient type size to be clearly readable by the recipient of | 2 |
| the communication. | 3 |
| "Consumer" means an individual who acquires or seeks to | 4 |
| acquire cigarettes for personal use. | 5 |
| "Delivery sale" means any sale of cigarettes to a consumer | 6 |
| if: | 7 |
| (a) the consumer submits the order for such sale by | 8 |
| means of a telephone or other method of voice transmission, | 9 |
| the mails, or the Internet or other online service, or the | 10 |
| seller is otherwise not in the physical presence of the | 11 |
| buyer when the request for purchase or order is made; or | 12 |
| (b) the cigarettes are delivered by use of a common | 13 |
| carrier, private delivery
service, or the mails, or the | 14 |
| seller is not in the physical presence of the buyer when | 15 |
| the buyer obtains possession of the cigarettes. | 16 |
| "Delivery service" means any person (other than a person | 17 |
| that makes a delivery sale) who
delivers to the consumer the | 18 |
| cigarettes sold in a delivery sale. | 19 |
| "Department" means the Department of Revenue. | 20 |
| "Government-issued identification" means a State driver's | 21 |
| license, State identification card, passport, a military | 22 |
| identification or an official naturalization or immigration | 23 |
| document, such as an alien registration recipient card | 24 |
| (commonly known as a "green card") or an immigrant visa. | 25 |
| "Legal minimum age" means the minimum age at which an | 26 |
| individual may legally purchase cigarettes within this State, |
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| as determined by either State or local government. | 2 |
| "Mails" or "mailing" mean the shipment of cigarettes | 3 |
| through the United States Postal Service. | 4 |
| "Out-of-state sale" means a sale of cigarettes to a | 5 |
| consumer located outside of this State where the consumer | 6 |
| submits the order for such sale by means of a telephonic or | 7 |
| other method of voice transmission, the mails or any other | 8 |
| delivery service, facsimile transmission, or the Internet or | 9 |
| other online service and where the cigarettes are delivered by | 10 |
| use of the mails or other delivery service. | 11 |
| "Person" means any individual, corporation, partnership, | 12 |
| limited liability company, association, or other organization | 13 |
| that engages in any for profit or not-for-profit activities. | 14 |
| "Shipping package" means a container in which packs or | 15 |
| cartons of cigarettes are shipped in connection with a delivery | 16 |
| sale. | 17 |
| "Shipping documents" means bills of lading, air bills, or | 18 |
| any other documents used to evidence the undertaking by a | 19 |
| delivery service to deliver letters, packages, or other | 20 |
| containers. | 21 |
| "Within this State" means within the exterior limits of the | 22 |
| State of Illinois and includes all territory within these | 23 |
| limits owned by or ceded to the United States of America. | 24 |
| (720 ILCS 678/5)
| 25 |
| Sec. 5. Unlawful shipment or transportation of cigarettes. |
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| (a) It is unlawful for any person engaged in the business | 2 |
| of selling cigarettes to ship or cause to be shipped any | 3 |
| cigarettes unless the person shipping the cigarettes:
| 4 |
| (1) is licensed as a distributor under either
the | 5 |
| Cigarette Tax Act, or the Cigarette Use Tax Act; or
| 6 |
| delivers the cigarettes to a distributor licensed under | 7 |
| either the Cigarette Tax Act or the Cigarette Use Tax Act; | 8 |
| or | 9 |
| (2) ships them to an export warehouse proprietor | 10 |
| pursuant to
Chapter 52 of the Internal Revenue Code, or an | 11 |
| operator of
a customs bonded warehouse pursuant to Section | 12 |
| 1311 or
1555 of Title 19 of the United States Code.
| 13 |
| For purposes of this subsection (a), a person is a licensed | 14 |
| distributor if the person's name appears on a list of licensed | 15 |
| distributors published by the Illinois Department of Revenue.
| 16 |
| The term cigarette has the same meaning as defined in Section 1 | 17 |
| of the Cigarette Tax Act and Section 1 of the Cigarette Use Tax | 18 |
| Act.
Nothing in this Act prohibits a person licensed as a | 19 |
| distributor under the Cigarette Tax Act or the Cigarette Use | 20 |
| Tax Act from shipping or causing to be shipped any cigarettes | 21 |
| to a registered retailer under the Retailers' Occupation Tax | 22 |
| Act and the Cigarette Tax Act provided the cigarette tax or | 23 |
| cigarette use tax has been paid.
| 24 |
| (b) A common or contract carrier may transport cigarettes | 25 |
| to any individual person in this State only if the carrier | 26 |
| reasonably believes such cigarettes have been received from a |
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| person described in paragraph (a)(1). Common or contract | 2 |
| carriers may make deliveries of cigarettes to licensed | 3 |
| distributors described in paragraph (a)(1) of this Section. | 4 |
| Nothing in this subsection (b) shall be construed to prohibit a | 5 |
| person other than a common or contract carrier from | 6 |
| transporting not more than 1,000 cigarettes at any one time to | 7 |
| any person in this State.
| 8 |
| (c) A common or contract carrier may not complete the | 9 |
| delivery of any cigarettes to persons other than those | 10 |
| described in paragraph (a)(1) of this Section without first | 11 |
| obtaining from the purchaser an official written | 12 |
| identification from any state or federal agency that displays | 13 |
| the person's date of birth or a birth certificate that includes | 14 |
| a reliable confirmation that the purchaser is at least 18 years | 15 |
| of age; that the cigarettes purchased are not intended for | 16 |
| consumption by an individual who is younger than 18 years of | 17 |
| age; and a written statement signed by the purchaser that | 18 |
| certifies the purchaser's address and that the purchaser is at | 19 |
| least 18 years of age. The statement shall also confirm: (1) | 20 |
| that the purchaser understands that signing another person's | 21 |
| name to the certification is illegal; (2) that the sale of | 22 |
| cigarettes to individuals under 18 years of age is illegal; and | 23 |
| (3) that the purchase of cigarettes by individuals under 18 | 24 |
| years of age is illegal under the laws of Illinois. | 25 |
| (d) When a person engaged in the business of selling
| 26 |
| cigarettes ships or causes to be shipped any cigarettes to any |
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| person in this State, other than in the cigarette | 2 |
| manufacturer's or tobacco products manufacturer's original | 3 |
| container or wrapping, the container or wrapping must be | 4 |
| plainly and visibly marked with the word "cigarettes".
| 5 |
| (e) When a peace officer of this State or any duly | 6 |
| authorized officer or employee of the Illinois Department of | 7 |
| Public Health or Department of Revenue discovers any cigarettes | 8 |
| which have been or which are being shipped or transported in | 9 |
| violation of this Section, he or she shall seize and take | 10 |
| possession of the cigarettes, and the cigarettes shall be | 11 |
| subject to a forfeiture action pursuant to the procedures | 12 |
| provided under the Cigarette Tax Act or Cigarette Use Tax Act.
| 13 |
| (Source: P.A. 93-960, eff. 8-20-04.) | 14 |
| (720 ILCS 678/6 new)
| 15 |
| Sec. 6. Prevention of delivery sales to minors. | 16 |
| (a) No person shall make a delivery sale of cigarettes to | 17 |
| any individual who is
under the legal minimum age. | 18 |
| (b) Each person accepting a purchase order for a delivery | 19 |
| sale shall comply with
the provisions of this Act and all other | 20 |
| laws of this State generally applicable to sales of cigarettes | 21 |
| that occur entirely within this State, including, but not | 22 |
| limited to, those laws imposing: (i) excise taxes; (ii) sales | 23 |
| taxes; (iii) license and revenue-stamping requirements; and | 24 |
| (iv) escrow payment obligations. |
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| (720 ILCS 678/7 new)
| 2 |
| Sec. 7. Age verification and shipping requirements to | 3 |
| prevent delivery sales to minors. | 4 |
| (a) No person, other than a delivery service, shall mail, | 5 |
| ship, or otherwise cause to be delivered a shipping package in | 6 |
| connection with a delivery sale unless the person: | 7 |
| (1) prior to the first delivery sale to the prospective | 8 |
| consumer, obtains
from the prospective consumer a written | 9 |
| certification which includes a statement signed by the | 10 |
| prospective consumer that certifies: | 11 |
| (A) the prospective consumer's current address; | 12 |
| and | 13 |
| (B) that the prospective consumer is at least the | 14 |
| legal minimum age; | 15 |
| (2) informs, in writing, such prospective consumer | 16 |
| that: | 17 |
| (A) the signing of another person's name to the | 18 |
| certification described in
this Section is illegal; | 19 |
| (B) sales of cigarettes to individuals under the | 20 |
| legal minimum age are
illegal; | 21 |
| (C) the purchase of cigarettes by individuals | 22 |
| under the legal minimum age
is illegal; and | 23 |
| (D) the name and identity of the prospective | 24 |
| consumer may be reported to
the state of the consumer's | 25 |
| current address under the Act of October 19, 1949 (15 | 26 |
| U.S.C. § 375, et seq.), commonly known as the Jenkins |
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| Act; | 2 |
| (3) makes a good faith effort to verify the date of | 3 |
| birth of the prospective
customer provided pursuant to this | 4 |
| Section by: | 5 |
| (A) comparing the date of birth against a | 6 |
| commercially available database
or | 7 |
| (B) obtaining a photocopy or other image of a | 8 |
| valid, government-issued
identification stating the | 9 |
| date of birth or age of the prospective consumer; | 10 |
| (4) provides to the prospective consumer a notice that | 11 |
| meets the requirements of
subsection (b); | 12 |
| (5) receives payment for the delivery sale from the | 13 |
| prospective consumer by a
credit or debit card that has | 14 |
| been issued in such consumer's name, or by a check or other | 15 |
| written instrument in such consumer's name; and | 16 |
| (6) ensures that the shipping package is delivered to | 17 |
| the same address as is shown
on the government-issued | 18 |
| identification or contained in the commercially available | 19 |
| database. | 20 |
| (b) The notice required under this Section shall include: | 21 |
| (1) a statement that cigarette sales to consumers below | 22 |
| the legal minimum age are
illegal; | 23 |
| (2) a statement that sales of cigarettes are restricted | 24 |
| to those consumers who
provide verifiable proof of age in | 25 |
| accordance with subsection (a); | 26 |
| (3) a statement that cigarette sales are subject to tax |
|
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| under Section 2 of the
Cigarette Tax Act (35 ILCS 130/2) | 2 |
| and an explanation of how such tax has been, or is to be, | 3 |
| paid with respect to such delivery sale. | 4 |
| (c) A statement meets the requirement of this Section if: | 5 |
| (1) the statement is clear and conspicuous; | 6 |
| (2) the statement is contained in a printed box set | 7 |
| apart from the other contents of
the communication; | 8 |
| (3) the statement is printed in bold, capital letters; | 9 |
| (4) the statement is printed with a degree of color | 10 |
| contrast between the
background and the printed statement | 11 |
| that is no less than the color contrast between the | 12 |
| background and the largest text used in the communication; | 13 |
| and | 14 |
| (5) for any printed material delivered by electronic | 15 |
| means, the statement appears
at both the top and the bottom | 16 |
| of the electronic mail message or both the top and the | 17 |
| bottom of the Internet website homepage. | 18 |
| (d) Each person, other than a delivery service, who mails, | 19 |
| ships, or otherwise causes to be delivered a shipping package | 20 |
| in connection with a delivery sale shall: | 21 |
| (1) include as part of the shipping documents a clear | 22 |
| and conspicuous statement
stating: "Cigarettes: Illinois | 23 |
| Law Prohibits Shipping to Individuals Under 18 and Requires | 24 |
| the Payment of All Applicable Taxes"; | 25 |
| (2) use a method of mailing, shipping, or delivery that | 26 |
| requires a signature before
the shipping package is |
|
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| released to the consumer; and | 2 |
| (3) ensure that the shipping package is not delivered | 3 |
| to any post office box. | 4 |
| (720 ILCS 678/8 new)
| 5 |
| Sec. 8. Registration and reporting requirements to prevent | 6 |
| delivery sales to minors. | 7 |
| (a) Each person who makes a delivery sale of cigarettes to | 8 |
| a consumer located within this
State shall file with the | 9 |
| Department for each individual sale: | 10 |
| (1) a statement setting forth such person's name, trade | 11 |
| name, and the address of
such person's principal place of | 12 |
| business and any other place of business; and | 13 |
| (2) not later than the tenth day of each calendar | 14 |
| month, a memorandum or copy of
the invoice for each and | 15 |
| every such delivery sale made during the previous calendar | 16 |
| month, which includes the following information: | 17 |
| (A) the name and address of the consumer to whom | 18 |
| such delivery sale
was made; | 19 |
| (B) the brand style or brand styles of the | 20 |
| cigarettes that were sold in such
delivery sale; | 21 |
| (C) the quantity of cigarettes that were sold in | 22 |
| such delivery sale; and | 23 |
| (D) an indication of whether or not the cigarettes | 24 |
| sold in the delivery sale
bore a tax stamp evidencing | 25 |
| payment of the tax under Section 2 of the Cigarette Tax |
|
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| Act (35 ILCS 130/2). | 2 |
| (b) Each person engaged in business within this State who | 3 |
| makes an out-of-state sale
shall, for each individual sale, | 4 |
| submit to the appropriate tax official of the state in which | 5 |
| the consumer is located the information required in subsection | 6 |
| (a). | 7 |
| (c) Any person that satisfies the requirements of 15 U.S.C. | 8 |
| Section 376 shall be deemed to
satisfy the requirements of | 9 |
| subsections (a) and (b). | 10 |
| (d) The Department is authorized to disclose to the | 11 |
| Attorney General any information
received under this title and | 12 |
| requested by the Attorney General. The Department and the | 13 |
| Attorney General shall share with each other the information | 14 |
| received under this title and may share the information with | 15 |
| other federal, State, or local agencies for purposes of | 16 |
| enforcement of this title or the laws of the Federal government | 17 |
| or of other States. | 18 |
| (e) This Section shall not be construed to impose liability | 19 |
| upon any delivery service, or
officers or employees thereof, | 20 |
| when acting within the scope of business of the delivery | 21 |
| service. | 22 |
| (720 ILCS 678/9 new)
| 23 |
| Sec. 9. Statements for delivery sales. | 24 |
| (a) Each person who makes a delivery sale shall collect and | 25 |
| remit to the Department all excise taxes imposed by this State |
|
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| with respect to such delivery sale and maintain evidence of | 2 |
| such payment unless the person is located outside the State and | 3 |
| includes a statement on the outside of the shipping package | 4 |
| stating: "Illinois law requires the payment of state taxes on | 5 |
| this shipment of cigarettes. You are legally responsible for | 6 |
| all applicable unpaid state taxes on these cigarettes." | 7 |
| (b) A statement meets the requirements of subsection (a) if | 8 |
| the statement is: | 9 |
| (1) clear and conspicuous; | 10 |
| (2) contained in a printed box set apart from the | 11 |
| shipping label and other markings
contained on the shipping | 12 |
| package; | 13 |
| (3) printed in bold, capital letters; | 14 |
| (4) printed with a degree of color contrast between the | 15 |
| background and the printed
statement that is no less than | 16 |
| the color contrast between the background and the largest | 17 |
| text used on the shipping label; and | 18 |
| (5) located on the same side of the shipping package as | 19 |
| the shipping label. | 20 |
| (720 ILCS 678/10)
| 21 |
| Sec. 10. Violation. | 22 |
| (a) A person who violates subsection (a), (b), or (c) of | 23 |
| Section 5 or Section, 6, 7, 8, or 9 is guilty of a Class A | 24 |
| misdemeanor. A second or subsequent violation of subsection | 25 |
| (a), (b), or (c) of Section 5 or Section, 6, 7, 8, or 9 is a |
|
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| Class 4 felony.
| 2 |
| (b) The Department of Revenue shall impose a civil penalty | 3 |
| not to exceed $5,000 on any person who violates subsection (a), | 4 |
| (b), or (c) of Section 5 or Sections 6, 7, 8, or 9 . The | 5 |
| Department of Revenue shall impose a civil penalty not to | 6 |
| exceed $5,000 on any person engaged in the business of selling | 7 |
| cigarettes who ships or causes to be shipped any such | 8 |
| cigarettes to any person in this State in violation of | 9 |
| subsection (d) of Section 5.
| 10 |
| (c) All cigarettes sold or attempted to be sold in a | 11 |
| delivery sale that does not meet the requirements of this Act | 12 |
| shall be forfeited to the State. All cigarettes forfeited to | 13 |
| this State under this Act shall be destroyed. The Department | 14 |
| may, prior to any destruction of cigarettes, permit the true | 15 |
| holder of the trademark rights in the cigarette brand to | 16 |
| inspect such contraband cigarettes, in order to assist the | 17 |
| Department in any investigation regarding such cigarettes. | 18 |
| (d) (c) Any person aggrieved by any decision of the | 19 |
| Department of Revenue may, within 60 days after notice of that | 20 |
| decision, protest in writing and request a hearing. The | 21 |
| Department of Revenue shall give notice to the person of the | 22 |
| time and place for the hearing and shall hold a hearing before | 23 |
| it issues a final administrative decision. Absent a written | 24 |
| protest within 60 days, the Department's decision shall become | 25 |
| final without any further determination made or notice given.
| 26 |
| (Source: P.A. 93-960, eff. 8-20-04.) |
|
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| (720 ILCS 678/20 new)
| 2 |
| Sec. 20. Tip line. | 3 |
| (a) Not later than 120 days after the effective date of | 4 |
| this amendatory Act of the 95th General Assembly, the | 5 |
| Department shall establish, publicize, and maintain a | 6 |
| toll-free telephone number to receive information related to | 7 |
| violations of this Act. | 8 |
| (b) The Attorney General may pay a reward of up to $5,000 | 9 |
| to any person who furnishes information leading to the | 10 |
| Department's collection of excise taxes imposed upon delivery | 11 |
| sales which otherwise would not have been collected but for the | 12 |
| information provided by the person. | 13 |
| (720 ILCS 678/25 new)
| 14 |
| Sec. 25. Construction. The requirements imposed by this Act | 15 |
| shall not apply where such application would be contrary to the | 16 |
| Constitution and laws of the United States. | 17 |
| (720 ILCS 678/30 new)
| 18 |
| Sec. 30. Severability. If any provision of this Act is for | 19 |
| any reason held to be unconstitutional or invalid, such holding | 20 |
| shall not affect the constitutionality or validity of the | 21 |
| remaining provisions of this Act, and to this end the | 22 |
| provisions of this Act are expressly declared to be severable.
|
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| Section 99. Effective date. This Act takes effect upon | 2 |
| becoming law.".
|
|