Full Text of SB1447 98th General Assembly
SB1447 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 SB1447 Introduced 2/6/2013, by Sen. Ira I. Silverstein SYNOPSIS AS INTRODUCED: |
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Amends the Cigarette Tax Act, the Cigarette Use Tax Act, and the Tobacco Products Tax Act of 1995. Requires retailers of cigarettes to obtain a license from the Department of Revenue. Provides that the annual license fee payable to the Department is $250. Contains provisions concerning returns and penalties. Makes changes to the definition of "cigarette". Provides that a person who makes a sale of cigarettes to a purchaser for use or consumption and not for resale is not considered a "distributor". Effective January 1, 2014.
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| | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | | FISCAL NOTE ACT MAY APPLY |
| | A BILL FOR |
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| 1 | | AN ACT concerning revenue.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Department of Revenue Law is amended by | 5 | | changing Section 2505-380 as follows:
| 6 | | (20 ILCS 2505/2505-380) (was 20 ILCS 2505/39b47)
| 7 | | Sec. 2505-380.
Revocation of or refusal to issue or reissue | 8 | | a certificate of
registration, permit, or license. The | 9 | | Department has the power to
refuse to issue , reissue, or, after | 10 | | notice and an opportunity for
a hearing, to revoke a | 11 | | certificate of registration, permit, or license
issued or | 12 | | authorized to be issued by the Department if the applicant for
| 13 | | or holder of the certificate of registration, permit, or
| 14 | | license fails to
file a return, or to pay the tax, fee, | 15 | | penalty, or interest shown in a
filed
return, or to pay any | 16 | | final assessment of tax, fee,
penalty, or interest, as required | 17 | | by the tax or fee Act under which the
certificate
of | 18 | | registration, permit, or license is required or any other tax | 19 | | or fee Act
administered
by the Department.
| 20 | | The procedure for notice and hearing prior to revocation | 21 | | shall be as
provided under the Act pursuant to which the | 22 | | certificate of registration,
permit, or license was issued.
| 23 | | (Source: P.A. 91-239, eff. 1-1-00.)
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| 1 | | Section 10. The Illinois Cigarette Tax Act is amended by | 2 | | changing Sections 1, 3-10, 4d, 4e, 4f, 6, 7, 8, 10, 11, 23, and | 3 | | 26 and by adding Sections 4g, 4h, 9g, and 11c as follows:
| 4 | | (35 ILCS 130/1) (from Ch. 120, par. 453.1)
| 5 | | Sec. 1. For the purposes of this Act:
| 6 | | "Brand Style" means a variety of cigarettes distinguished | 7 | | by the tobacco used, tar and nicotine content, flavoring used, | 8 | | size of the cigarette, filtration on the cigarette or | 9 | | packaging. | 10 | | Until July 1, 2012, "cigarette", means any
roll for smoking | 11 | | made wholly or in part of tobacco irrespective of size
or shape | 12 | | and whether or not such tobacco is flavored, adulterated or
| 13 | | mixed with any other ingredient, and the wrapper or cover of | 14 | | which is
made of paper or any other substance or material | 15 | | except tobacco.
| 16 | | "Cigarette", beginning on and after July 1, 2012, means any | 17 | | roll for smoking made wholly or in part of tobacco irrespective | 18 | | of size or shape and whether or not such tobacco is flavored, | 19 | | adulterated, or mixed with any other ingredient, and the | 20 | | wrapper or cover of which is made of paper. | 21 | | "Cigarette", beginning on and after July 1, 2012, also | 22 | | shall mean: Any roll for smoking made wholly or in part of | 23 | | tobacco labeled as anything other than a cigarette or not | 24 | | bearing a label, if it meets two or more of the following |
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| 1 | | criteria: | 2 | | (a) the product is sold in packs similar to cigarettes; | 3 | | (b) the product is available for sale in cartons of ten | 4 | | packs; | 5 | | (c) the product is sold in soft packs, hard packs, | 6 | | flip-top boxes, clam shells, or other cigarette-type | 7 | | boxes; | 8 | | (d) the product is of a length and diameter similar to | 9 | | commercially manufactured cigarettes; | 10 | | (e) the product has a cellulose acetate or other | 11 | | integrated filter; | 12 | | (f) the product is marketed or advertised to consumers | 13 | | as a cigarette or cigarette substitute; or | 14 | | (g) other evidence that the product fits within the | 15 | | definition of cigarette. | 16 | | "Contraband cigarettes" means: | 17 | | (a) cigarettes that do not bear a required tax stamp | 18 | | under this Act; | 19 | | (b) cigarettes for which any required federal taxes | 20 | | have not been paid; | 21 | | (c) cigarettes that bear a counterfeit tax stamp; | 22 | | (d) cigarettes that are manufactured, fabricated, | 23 | | assembled, processed, packaged, or labeled by any person | 24 | | other than (i) the owner of the trademark rights in the | 25 | | cigarette brand or (ii) a person that is directly or | 26 | | indirectly authorized by such owner; |
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| 1 | | (e) cigarettes imported into the United States, or | 2 | | otherwise distributed, in violation of the federal | 3 | | Imported Cigarette Compliance Act of 2000 (Title IV of | 4 | | Public Law 106-476); | 5 | | (f) cigarettes that have false manufacturing labels; | 6 | | (g) cigarettes identified in Section 3-10(a)(1) of | 7 | | this Act; | 8 | | (h) cigarettes that are improperly tax stamped, | 9 | | including cigarettes that bear a tax stamp of another state | 10 | | or taxing jurisdiction; or | 11 | | (i) cigarettes made or fabricated by a person holding a | 12 | | cigarette machine operator license under Section 1-20 of | 13 | | the Cigarette Machine Operators' Occupation Tax Act in the | 14 | | possession of manufacturers, distributors, secondary | 15 | | distributors, manufacturer representatives or other | 16 | | retailers for the purpose of resale, regardless of whether | 17 | | the tax has been paid on such cigarettes. | 18 | | "Person" means any natural individual, firm, partnership, | 19 | | association, joint
stock company, joint adventure, public or | 20 | | private corporation, however formed,
limited liability | 21 | | company, or a receiver, executor, administrator, trustee,
| 22 | | guardian or other representative appointed by order of any | 23 | | court.
| 24 | | "Prior Continuous Compliance Taxpayer" means any person | 25 | | who is licensed
under this Act and who, having been a licensee | 26 | | for a continuous period of 5
years, is determined by the |
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| 1 | | Department not to have been either delinquent
or deficient in | 2 | | the payment of tax liability during that period or
otherwise in | 3 | | violation of this Act. Also, any taxpayer who has, as
verified | 4 | | by the Department, continuously complied with the condition of | 5 | | his
bond or other security under provisions of this Act for a | 6 | | period of 5
consecutive years shall be considered to be a | 7 | | "Prior continuous compliance
taxpayer". In calculating the | 8 | | consecutive period of time described herein
for qualification | 9 | | as a "prior continuous compliance taxpayer", a
consecutive | 10 | | period of time of qualifying compliance immediately prior to
| 11 | | the effective date of this amendatory Act of 1987 shall be | 12 | | credited to any
licensee who became licensed on or before the | 13 | | effective date of this
amendatory Act of 1987.
| 14 | | "Department" means the Department of Revenue.
| 15 | | "Sale" means any transfer, exchange or barter in any manner | 16 | | or by any
means whatsoever for a consideration, and includes | 17 | | and means all sales
made by any person.
| 18 | | "Original Package" means the individual packet, box or | 19 | | other container
whatsoever used to contain and to convey | 20 | | cigarettes to the consumer.
| 21 | | "Distributor" means any and each of the following:
| 22 | | (1) Any person engaged in the business of selling | 23 | | cigarettes in this
State who brings or causes to be brought | 24 | | into this State from without
this State any original | 25 | | packages of cigarettes, on which original
packages there is | 26 | | no authorized evidence underneath a sealed transparent
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| 1 | | wrapper showing that the tax liability imposed by this Act | 2 | | has been paid
or assumed by the out-of-State seller of such | 3 | | cigarettes, for sale or
other disposition in the course of | 4 | | such business.
| 5 | | (2) Any person who makes, manufactures or fabricates | 6 | | cigarettes in this
State for sale in this State, except a | 7 | | person who makes, manufactures
or fabricates cigarettes as | 8 | | a part of a correctional industries program
for sale to | 9 | | residents incarcerated in penal institutions or resident | 10 | | patients
of a State-operated mental health facility.
| 11 | | (3) Any person who makes, manufactures or fabricates | 12 | | cigarettes
outside this State, which cigarettes are placed | 13 | | in original packages
contained in sealed transparent | 14 | | wrappers, for delivery or shipment into
this State, and who | 15 | | elects to qualify and is accepted by the Department
as a | 16 | | distributor under Section 4b of this Act.
| 17 | | "Distributor" does not include any person who makes a sale | 18 | | of cigarettes to a purchaser for use or consumption, and not | 19 | | for resale. | 20 | | "Place of business" shall mean and include any place where | 21 | | cigarettes
are sold or where cigarettes are manufactured, | 22 | | stored or kept for the
purpose of sale or consumption, | 23 | | including any vessel, vehicle, airplane,
train or vending | 24 | | machine.
| 25 | | "Manufacturer representative" means a director, officer, | 26 | | or employee of a manufacturer who has obtained authority from |
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| 1 | | the Department under Section 4f to maintain representatives in | 2 | | Illinois that provide or sell original packages of cigarettes | 3 | | made, manufactured, or fabricated by the manufacturer to | 4 | | retailers in compliance with Section 4f of this Act to promote | 5 | | cigarettes made, manufactured, or fabricated by the | 6 | | manufacturer. | 7 | | "Business" means any trade, occupation, activity or | 8 | | enterprise
engaged in for the purpose of selling cigarettes in | 9 | | this State.
| 10 | | "Retailer" means any person who engages in the making of | 11 | | transfers of
the ownership of, or title to, cigarettes to a | 12 | | purchaser for use or
consumption and not for resale in any | 13 | | form, for a valuable consideration. "Retailer" does not include | 14 | | a person:
| 15 | | (1) who transfers to residents incarcerated in penal | 16 | | institutions
or resident patients of a State-operated | 17 | | mental health facility ownership
of cigarettes made, | 18 | | manufactured, or fabricated as part of a correctional
| 19 | | industries program; or | 20 | | (2) who transfers cigarettes to a not-for-profit | 21 | | research institution that conducts tests concerning the | 22 | | health effects of tobacco products and who does not offer | 23 | | the cigarettes for resale.
| 24 | | "Retailer" shall be construed to include any person who | 25 | | engages in
the making of transfers of the ownership of, or | 26 | | title to, cigarettes to
a purchaser, for use or consumption by |
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| 1 | | any other person to whom such
purchaser may transfer the | 2 | | cigarettes without a valuable consideration,
except a person | 3 | | who transfers to residents incarcerated in penal institutions
| 4 | | or resident patients of a State-operated mental health facility | 5 | | ownership
of cigarettes made, manufactured or fabricated as | 6 | | part of a correctional
industries program.
| 7 | | "Secondary distributor" means any person engaged in the | 8 | | business of selling cigarettes who purchases stamped original | 9 | | packages of cigarettes from a licensed distributor under this | 10 | | Act or the Cigarette Use Tax Act, sells 75% or more of those | 11 | | cigarettes to retailers for resale, and maintains an | 12 | | established business where a substantial stock of cigarettes is | 13 | | available to retailers for resale. | 14 | | "Stamp" or "stamps" mean the indicia required to be affixed | 15 | | on a pack of cigarettes that evidence payment of the tax on | 16 | | cigarettes under Section 2 of this Act. | 17 | | "Related party" means any person that is associated with | 18 | | any other person because he or she: | 19 | | (a) is an officer or director of a business; or | 20 | | (b) is legally recognized as a partner in business. | 21 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10; | 22 | | 97-587, eff. 8-26-11; 97-688, eff. 6-14-12.)
| 23 | | (35 ILCS 130/3-10)
| 24 | | Sec. 3-10. Cigarette enforcement.
| 25 | | (a) Prohibitions. It is unlawful for any person:
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| 1 | | (1) to sell or distribute in this State; to acquire, | 2 | | hold, own, possess,
or
transport, for sale or distribution | 3 | | in this State; or to import, or cause to be
imported into | 4 | | this State for sale or distribution in this State:
| 5 | | (A) any cigarettes the package of which:
| 6 | | (i) bears any statement, label, stamp, | 7 | | sticker, or notice
indicating that the | 8 | | manufacturer did not intend the cigarettes to be
| 9 | | sold, distributed, or used in the United States, | 10 | | including but not
limited to labels stating "For | 11 | | Export Only", "U.S. Tax Exempt",
"For Use Outside | 12 | | U.S.", or similar wording; or
| 13 | | (ii) does not comply with:
| 14 | | (aa) all requirements imposed by or | 15 | | pursuant to
federal law regarding warnings and | 16 | | other information on
packages of cigarettes | 17 | | manufactured, packaged, or imported
for sale, | 18 | | distribution, or use in the United States, | 19 | | including
but not limited to the precise | 20 | | warning labels specified in the
federal | 21 | | Cigarette Labeling and Advertising Act, 15 | 22 | | U.S.C.
1333; and
| 23 | | (bb) all federal trademark and copyright | 24 | | laws;
| 25 | | (B) any cigarettes imported into the United States | 26 | | in violation of
26 U.S.C. 5754 or any other federal |
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| 1 | | law, or implementing federal
regulations;
| 2 | | (C) any cigarettes that such person otherwise | 3 | | knows or has reason
to know the manufacturer did not | 4 | | intend to be sold, distributed, or used in
the United | 5 | | States; or
| 6 | | (D) any cigarettes for which there has not been | 7 | | submitted to the
Secretary of the U.S. Department of | 8 | | Health and Human Services the list or
lists of the | 9 | | ingredients added to tobacco in the manufacture of the
| 10 | | cigarettes required by the federal Cigarette Labeling | 11 | | and Advertising Act,
15 U.S.C. 1335a;
| 12 | | (2) to alter the package of any cigarettes, prior to | 13 | | sale or distribution
to
the
ultimate consumer, so as to | 14 | | remove, conceal, or obscure:
| 15 | | (A) any statement, label, stamp, sticker, or | 16 | | notice described in
subdivision (a)(1)(A)(i) of this | 17 | | Section;
| 18 | | (B) any health warning that is not specified in, or | 19 | | does not conform
with the requirements of, the federal | 20 | | Cigarette Labeling and Advertising
Act, 15 U.S.C. | 21 | | 1333; or
| 22 | | (3) to affix any stamp required pursuant to this Act to | 23 | | the package of any
cigarettes described in subdivision | 24 | | (a)(1) of this Section or altered in
violation of
| 25 | | subdivision (a)(2).
| 26 | | (b) Documentation. On the first business day of each month, |
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| 1 | | each person
licensed
to affix the State tax stamp to cigarettes | 2 | | shall file with the Department, for
all cigarettes
imported | 3 | | into the United States to which the person has affixed the tax | 4 | | stamp
in the
preceding month:
| 5 | | (1) a copy of:
| 6 | | (A) the permit issued pursuant to the Internal | 7 | | Revenue Code, 26
U.S.C. 5713, to the person importing | 8 | | the cigarettes into the United States
allowing the | 9 | | person to import the cigarettes; and
| 10 | | (B) the customs form containing, with respect to | 11 | | the cigarettes, the
internal revenue tax information | 12 | | required by the U.S. Bureau of Alcohol,
Tobacco and | 13 | | Firearms;
| 14 | | (2) a statement, signed by the person under penalty of | 15 | | perjury, which shall
be treated as confidential by the | 16 | | Department and exempt from disclosure under
the Freedom of | 17 | | Information Act, identifying the brand and brand styles of | 18 | | all such
cigarettes, the quantity of each brand style of | 19 | | such cigarettes, the supplier of such
cigarettes, and the | 20 | | person or persons, if any, to whom such cigarettes have | 21 | | been
conveyed for resale; and a separate statement, signed | 22 | | by the individual under
penalty of perjury, which shall not | 23 | | be treated as confidential or exempt from
disclosure, | 24 | | separately identifying the brands and brand styles of such
| 25 | | cigarettes;
and
| 26 | | (3) a statement, signed by an officer of the |
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| 1 | | manufacturer or importer
under penalty of perjury, | 2 | | certifying that the manufacturer or importer has
complied | 3 | | with:
| 4 | | (A) the package health warning and ingredient | 5 | | reporting
requirements of the federal Cigarette | 6 | | Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 7 | | with respect to such cigarettes; and
| 8 | | (B) the provisions of Exhibit T of the Master | 9 | | Settlement Agreement
entered in
the case of People of | 10 | | the State of Illinois v. Philip Morris, et al. (Circuit
| 11 | | Court of Cook County, No. 96-L13146), including a | 12 | | statement
indicating whether the manufacturer is, or | 13 | | is not, a participating tobacco
manufacturer within | 14 | | the meaning of Exhibit T.
| 15 | | (c) Administrative sanctions.
| 16 | | (1) Upon finding that a distributor, secondary | 17 | | distributor, retailer, or person has committed any of the | 18 | | acts
prohibited by
subsection
(a), knowing or having reason | 19 | | to know that he or she has done so, or upon finding that a | 20 | | distributor or person has failed
to comply
with any | 21 | | requirement of subsection (b), the Department
may revoke or | 22 | | suspend the license or licenses of any
distributor , or | 23 | | secondary distributor , or retailer pursuant to the | 24 | | procedures set forth in Section 6 and impose, on the
| 25 | | distributor, secondary distributor, retailer, or person, a | 26 | | civil penalty in an amount not to exceed the greater of |
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| 1 | | 500% of
the
retail value of the cigarettes involved or | 2 | | $5,000.
| 3 | | (2) Cigarettes that are acquired, held, owned, | 4 | | possessed, transported in,
imported into, or sold or | 5 | | distributed in this State in violation of this
Section | 6 | | shall be deemed contraband under this Act and are subject | 7 | | to seizure
and forfeiture as provided in this Act, and all | 8 | | such cigarettes seized and
forfeited shall be destroyed or | 9 | | maintained and used in an undercover capacity. Such | 10 | | cigarettes shall be deemed contraband
whether the | 11 | | violation of this Section is knowing or otherwise.
| 12 | | (d) Unfair trade practices. In addition to any other | 13 | | penalties provided for in this Act, a violation of subsection | 14 | | (a) or subsection
(b) of this Section shall constitute an | 15 | | unlawful practice as provided in the
Consumer Fraud and | 16 | | Deceptive Business Practices Act.
| 17 | | (d-1) Retailers issued a license under Section 4g of this | 18 | | Act and secondary distributors shall not be liable under | 19 | | subsections (c)(1) and (d) of this Section for unknowingly | 20 | | possessing, selling, or distributing to consumers or users | 21 | | cigarettes identified in subsection (a)(1) of this Section if | 22 | | the cigarettes possessed, sold, or distributed by the licensed | 23 | | retailer or secondary distributor were obtained from a | 24 | | distributor licensed under this Act. | 25 | | (d-2) Criminal Penalties. A distributor, secondary | 26 | | distributor, retailer, or person who violates subsection (a), |
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| 1 | | or a distributor, secondary distributor, or person who violates | 2 | | subsection (b) of this Section shall be guilty of a Class 4 | 3 | | felony. | 4 | | (e) Unfair cigarette sales. For purposes of the Trademark | 5 | | Registration and
Protection Act and the Counterfeit Trademark | 6 | | Act, cigarettes imported or
reimported into the United States | 7 | | for sale or distribution under any trade
name, trade dress, or | 8 | | trademark that is the same as, or is confusingly similar
to, | 9 | | any trade name, trade dress, or trademark used for cigarettes | 10 | | manufactured
in the United States for sale or distribution in | 11 | | the United States shall be
presumed to have been purchased | 12 | | outside of the ordinary channels of trade.
| 13 | | (f) General provisions.
| 14 | | (1) This Section shall be enforced by the Department; | 15 | | provided that, at
the request of the Director of Revenue or | 16 | | the Director's duly authorized agent,
the State police and | 17 | | all local police authorities shall enforce the provisions
| 18 | | of this Section. The Attorney General has concurrent power | 19 | | with the State's
Attorney of any county to enforce this | 20 | | Section.
| 21 | | (2) For the purpose of enforcing this Section, the | 22 | | Director of Revenue and
any agency to which the Director | 23 | | has delegated enforcement
responsibility pursuant to | 24 | | subdivision (f)(1) may request information from any
State | 25 | | or local agency and may share information with and request | 26 | | information
from any federal agency and any agency of any |
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| 1 | | other state or any local agency
of any other state.
| 2 | | (3) In addition to any other remedy provided by law, | 3 | | including
enforcement as provided in subdivision (f) | 4 | | (a) (1), any person may bring an action
for appropriate | 5 | | injunctive or other equitable relief for a violation of | 6 | | this
Section; actual damages, if any, sustained by reason | 7 | | of the violation; and, as
determined by the court, interest | 8 | | on the damages from the date of the
complaint, taxable | 9 | | costs, and reasonable attorney's fees. If the trier of fact
| 10 | | finds that the violation is flagrant, it may increase | 11 | | recovery to an amount not
in excess of 3 times the actual | 12 | | damages sustained by reason of the violation.
| 13 | | (g) Definitions. As used in this Section:
| 14 | | "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 15 | | "Package" means that term as defined in 15 U.S.C. 1332(4).
| 16 | | (h) Applicability.
| 17 | | (1) This Section does not apply to:
| 18 | | (A) cigarettes allowed to be imported or brought | 19 | | into the United
States for personal use; and
| 20 | | (B) cigarettes sold or intended to be sold as | 21 | | duty-free merchandise
by a duty-free sales enterprise | 22 | | in accordance with the provisions of 19
U.S.C. 1555(b) | 23 | | and any implementing regulations; except that this | 24 | | Section
shall apply to any such cigarettes that are | 25 | | brought back into the customs
territory for resale | 26 | | within the customs territory.
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| 1 | | (2) The penalties provided in this Section are in | 2 | | addition to any other
penalties imposed under other | 3 | | provision of law.
| 4 | | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10; | 5 | | 96-1027, eff. 7-12-10.)
| 6 | | (35 ILCS 130/4d) | 7 | | Sec. 4d. Sales of cigarettes to and by retailers. In-state | 8 | | makers, manufacturers, and fabricators licensed as | 9 | | distributors under Section 4 of this Act and out-of-state | 10 | | makers, manufacturers, and fabricators holding permits under | 11 | | Section 4b of this Act may not sell original packages of | 12 | | cigarettes to retailers. A retailer who is licensed under | 13 | | Section 4g of this Act may sell only original packages of | 14 | | cigarettes obtained from manufacturer representatives, | 15 | | licensed secondary distributors, or licensed distributors | 16 | | other than in-state makers, manufacturers, or fabricators | 17 | | licensed as distributors under Section 4 of this Act and | 18 | | out-of-state makers, manufacturers, or fabricators holding | 19 | | permits under Section 4b of this Act.
| 20 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10; | 21 | | 97-587, eff. 8-26-11.) | 22 | | (35 ILCS 130/4e) | 23 | | Sec. 4e. Sales of cigarettes to and by secondary | 24 | | distributors. In-state makers, manufacturers, and fabricators |
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| 1 | | licensed as distributors under Section 4 of this Act and | 2 | | out-of-state makers, manufacturers, and fabricators holding | 3 | | permits under Section 4b of this Act may not sell original | 4 | | packages of cigarettes to secondary distributors. A secondary | 5 | | distributor may sell only original packages of cigarettes | 6 | | obtained from licensed distributors other than in-state | 7 | | makers, manufacturers, or fabricators licensed as distributors | 8 | | under Section 4 of this Act and out-of-state makers, | 9 | | manufacturers, or fabricators holding permits under Section 4b | 10 | | of this Act. Secondary distributors may sell cigarettes to | 11 | | Illinois retailers issued a license under Section 4g of this | 12 | | Act for resale, and are also authorized to make retail sales | 13 | | of cigarettes at the location on the secondary distributor's | 14 | | license as long as the secondary distributor obtains a license | 15 | | under Section 4g of the Cigarette Tax Act and sells 75% or more | 16 | | of the cigarettes sold at such location to retailers issued a | 17 | | license under Section 4g of this Act for resale. All sales by | 18 | | secondary distributors to retailers issued a license under | 19 | | Section 4g of this Act must be made at the location on the | 20 | | secondary distributor's license. Retailers issued a license | 21 | | under Section 4g of this Act must take possession of all | 22 | | cigarettes sold by the secondary distributor at the secondary | 23 | | distributor's licensed address. Secondary distributors may not | 24 | | make deliveries of cigarettes to retailers. | 25 | | Secondary distributors may not file a claim for credit or | 26 | | refund with the State under Section 9d of this Act.
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| 1 | | (Source: P.A. 96-1027, eff. 7-12-10.) | 2 | | (35 ILCS 130/4f) | 3 | | Sec. 4f. Manufacturer representatives. | 4 | | (a) No manufacturer may market cigarettes produced by the | 5 | | manufacturer directly to retailers in this State issued a | 6 | | license under Section 4g of this Act without first having | 7 | | obtained authorization from the Department. Application for | 8 | | authority to maintain representatives in this State to market | 9 | | in this State cigarettes produced by the manufacturer shall be | 10 | | made to the Department on a form furnished and prescribed by | 11 | | the Department. Each applicant under this Section shall furnish | 12 | | the following information to the Department on a form signed | 13 | | and verified by the applicant under penalty of perjury: | 14 | | (1) the name and address of the applicant; | 15 | | (2) the address of every location from which the | 16 | | applicant proposes to engage in business in this State; | 17 | | (3) the number of manufacturer representatives the | 18 | | applicant requests to maintain in this State; and | 19 | | (4) any other additional information as the Department | 20 | | may reasonably require. | 21 | | The following manufacturers are ineligible to receive | 22 | | authorization to maintain manufacturer representatives in this | 23 | | State: | 24 | | (1) a manufacturer who owes, at the time of | 25 | | application, any delinquent cigarette taxes that have been |
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| 1 | | determined by law to be due and unpaid, unless the | 2 | | applicant has entered into an agreement approved by the | 3 | | Department to pay the amount due; | 4 | | (2) a manufacturer who has had a license revoked within | 5 | | the past 2 years for misconduct relating to stolen or | 6 | | contraband cigarettes or has been convicted of a state or | 7 | | federal crime, punishable by imprisonment of one year or | 8 | | more, relating to stolen or contraband cigarettes; | 9 | | (3) a manufacturer who has been found, after notice and | 10 | | a hearing, to have imported or caused to be imported into | 11 | | the United States for sale or distribution any cigarette in | 12 | | violation of 19 U.S.C. 1681a; | 13 | | (4) a manufacturer who has been found, after notice and | 14 | | a hearing, to have imported or caused to be imported into | 15 | | the United States for sale or distribution or manufactured | 16 | | for sale or distribution in the United States any cigarette | 17 | | that does not fully comply with the Federal Cigarette | 18 | | Labeling and Advertising Act (15 U.S.C. 1331, et seq.); | 19 | | (5) a manufacturer who has been found, after notice and | 20 | | a hearing, to have made a material false statement in an | 21 | | application or has failed to produce records required to be | 22 | | maintained by this Act; | 23 | | (6) a manufacturer who has been found, after notice and | 24 | | hearing, to have violated any Section of this Act; or | 25 | | (7) a manufacturer licensed as a distributor under | 26 | | Section 4 of this Act or holding a permit under Section 4b |
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| 1 | | of this Act. | 2 | | The Department, upon receipt of an application from a | 3 | | manufacturer who is eligible to maintain manufacturer | 4 | | representatives in this State, shall notify the applicant in | 5 | | writing, not more than 60 days after an application has been | 6 | | received, that the applicant may or may not maintain the | 7 | | requested number of manufacturer representatives in this | 8 | | State. A copy of the notice authorizing a manufacturer to | 9 | | maintain manufacturer representatives in this State shall be | 10 | | available for inspection by the Department at each place of | 11 | | business identified in the application and in the motor vehicle | 12 | | operated by marketing representatives in the course of | 13 | | performing his or her duties in this State on behalf of the | 14 | | manufacturer. | 15 | | A manufacturer representative shall notify the Department | 16 | | of any change in the information contained on the application | 17 | | form and shall do so within 30 days after any such change. | 18 | | (b) Only directors, officers, and employees of the | 19 | | manufacturer may act as manufacturer representatives in this | 20 | | State. The manufacturer shall provide to the Department the | 21 | | names and addresses of the manufacturer representatives | 22 | | operating in this State and the make, model, and license plate | 23 | | number of each motor vehicle operated by a manufacturer | 24 | | representative in the course of performing his or her duties in | 25 | | this State on behalf of the manufacturer. The following | 26 | | individuals may not act as manufacturer representatives: |
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| 1 | | (1) an individual who owes any delinquent cigarette | 2 | | taxes that have been determined by law to be due and | 3 | | unpaid, unless the individual has entered into an agreement | 4 | | approved by the Department to pay the amount due; | 5 | | (2) an individual who has had a license revoked within | 6 | | the past 2 years for misconduct relating to stolen or | 7 | | contraband cigarettes or has been convicted of a state or | 8 | | federal crime, punishable by imprisonment of one year or | 9 | | more, relating to stolen or contraband cigarettes; | 10 | | (3) an individual who has been found, after notice and | 11 | | a hearing, to have made a material false statement in an | 12 | | application or has failed to produce records required to be | 13 | | maintained by this Act; or | 14 | | (4) an individual who has been found, after notice and | 15 | | hearing, to have violated any Section of this Act. | 16 | | (c) Manufacturer representatives may sell to retailers in | 17 | | this State who are licensed under Section 4g of this Act only | 18 | | original packages of cigarettes made, manufactured, or | 19 | | fabricated by the manufacturer and purchased or obtained from a | 20 | | distributor licensed under this Act, or the Cigarette Tax Use | 21 | | Act, and on which tax stamps have been affixed. Manufacturer | 22 | | representatives may sell up to 600 stamped original packages of | 23 | | cigarettes in a calendar year, for the purpose of promoting the | 24 | | manufacturer's brands of cigarettes. A manufacturer | 25 | | representative may not possess more than 500 stamped original | 26 | | packages of cigarettes made, manufactured, or fabricated by the |
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| 1 | | manufacturer and purchased or obtained from a distributor | 2 | | licensed under this Act or the Cigarette Use Tax Act. Any | 3 | | original packages of cigarettes in the possession of a | 4 | | manufacturer representative that (i) are not made, | 5 | | manufactured, or fabricated by the manufacturer and purchased | 6 | | or obtained from a distributor licensed under this Act or the | 7 | | Cigarette Use Tax Act, other than cigarettes for personal use | 8 | | and consumption, (ii) exceed the maximum quantity of 500 | 9 | | original packages of cigarettes, excluding packages of | 10 | | cigarettes for personal use and consumption; (iii) violate | 11 | | Section 3-10 of this Act; or (iv) do not have the proper tax | 12 | | stamps affixed, are contraband and subject to seizure and | 13 | | forfeiture. | 14 | | Manufacturer representatives may sell , on behalf of | 15 | | licensed distributors, stamped original packages of cigarettes | 16 | | to retailers who are licensed under Section 4g of this Act on | 17 | | behalf of licensed distributors . The manufacturer | 18 | | representative shall provide the distributor with a signed | 19 | | receipt for the cigarettes obtained from the distributor. The | 20 | | distributor shall invoice the licensed retailer, and the | 21 | | licensed retailer shall pay the distributor for all cigarettes | 22 | | provided to licensed retailers by manufacturer representatives | 23 | | on behalf of a distributor. | 24 | | Manufacturer representatives may sell stamped original | 25 | | packages of cigarettes to licensed retailers that are purchased | 26 | | from licensed distributors. Distributors shall provide |
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| 1 | | manufacturer representatives with invoices for stamped | 2 | | original packages of cigarettes sold to manufacturer | 3 | | representatives. Manufacturer representatives shall invoice | 4 | | licensed retailers, and the licensed retailers shall pay the | 5 | | manufacturer representatives for all original packages of | 6 | | cigarettes sold to licensed retailers. | 7 | | (d) Any person aggrieved by any decision of the Department | 8 | | under this Section may, within 20 days after notice of the | 9 | | decision, protest and request a hearing. Upon receiving a | 10 | | request for a hearing, the Department shall give notice to the | 11 | | person requesting the hearing of the time and place fixed for | 12 | | the hearing and shall hold a hearing in conformity with the | 13 | | provisions of this Act and then issue its final administrative | 14 | | decision in the matter to that person. In the absence of a | 15 | | protest and request for a hearing within 20 days, the | 16 | | Department's decision shall become final without any further | 17 | | determination being made or notice given.
| 18 | | (Source: P.A. 97-587, eff. 8-26-11.) | 19 | | (35 ILCS 130/4g new) | 20 | | Sec. 4g. Retailer's license. Beginning on January 1, 2014, | 21 | | no person may engage in business as a retailer of cigarettes in | 22 | | this State without first having obtained a license from the | 23 | | Department. Application for license shall be made to the | 24 | | Department on a form furnished and prescribed by the | 25 | | Department. Each applicant for a license under this Section |
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| 1 | | shall furnish to the Department on the form signed and verified | 2 | | by the applicant the following information: | 3 | | (1) the name and address of the applicant; | 4 | | (2) the address of the location at which the applicant | 5 | | proposes to engage in business as a retailer of cigarettes | 6 | | in this State; and | 7 | | (3) such other additional information as the | 8 | | Department may lawfully require by its rules and | 9 | | regulations. | 10 | | The annual license fee payable to the Department for each | 11 | | retailer's license shall be $250. The fee shall be deposited | 12 | | into the Tax Compliance and Administration Fund and used | 13 | | towards the cost of retail inspections. Each applicant for | 14 | | license shall pay the fee to the Department at the time of | 15 | | submitting his application for license to the Department. The | 16 | | Department may, by rule, require an applicant for a license | 17 | | under this Section to electronically file and pay the | 18 | | application and fee. | 19 | | Every applicant who is required to procure a retailer's | 20 | | license shall file with his application a joint and several | 21 | | bond. Such bond shall be executed to the Department of Revenue, | 22 | | with good and sufficient surety or sureties residing or | 23 | | licensed to do business within the State of Illinois, in an | 24 | | amount of not less than $2,500, conditioned upon the true and | 25 | | faithful compliance by the licensee with all of the provisions | 26 | | of this Act. Such bond, or a reissue thereof, or a substitute |
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| 1 | | therefore, shall be kept in effect during the entire period | 2 | | covered by the license. | 3 | | A separate application for license shall be made, a | 4 | | separate annual license fee paid, and a separate bond filed, | 5 | | for each place of business at which a person who is required to | 6 | | procure a retailer's license under this Section proposes to | 7 | | engage in business as a retailer in Illinois under this Act. | 8 | | The following are ineligible to receive a retailer's | 9 | | license under this Act: | 10 | | (1) a person who is not of good character and | 11 | | reputation in the community in which he resides; | 12 | | (2) a person who has been convicted of a felony under | 13 | | any federal or State law, if the Department, after | 14 | | investigation and a hearing, if requested by the applicant, | 15 | | determines that such person has not been sufficiently | 16 | | rehabilitated to warrant the public trust; | 17 | | (3) a corporation, if any officer, manager, or director | 18 | | thereof, or any stockholder or stockholders owning in the | 19 | | aggregate more than 5% of the stock of such corporation, | 20 | | would not be eligible to receive a license under this Act | 21 | | for any reason; | 22 | | (4) a person who possesses a distributor's license | 23 | | under Sections 4 and 4b of this Act or Sections 4 and 7 of | 24 | | the Cigarette Use Tax Act. | 25 | | The Department, upon receipt of an application, license fee | 26 | | and bond in proper form, from a person who is eligible to |
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| 1 | | receive a retailer's license under this Act, shall issue to | 2 | | such applicant a license in form as prescribed by the | 3 | | Department. That license shall permit the applicant to whom it | 4 | | is issued to engage in business as a retailer under this Act at | 5 | | the place shown in his or her application. All licenses issued | 6 | | by the Department under this Section shall be valid for a | 7 | | period not to exceed one year after issuance unless sooner | 8 | | revoked, canceled, or suspended as provided in this Act. No | 9 | | license issued under this Section is transferable or | 10 | | assignable. The license shall be conspicuously displayed in the | 11 | | place of business conducted by the licensee in Illinois under | 12 | | such license. The Department shall not issue a retailer's | 13 | | license to a retailer unless the retailer is also registered | 14 | | under the Retailers' Occupation Tax Act. A person who obtains a | 15 | | license as a retailer who ceases to do business as specified in | 16 | | the license, or who never commenced business, or who obtains a | 17 | | distributor's license, or whose license is suspended or | 18 | | revoked, shall immediately surrender the license to the | 19 | | Department. | 20 | | Any person aggrieved by any decision of the Department | 21 | | under this subsection may, within 20 days after notice of the | 22 | | decision, protest and request a hearing. Upon receiving a | 23 | | request for a hearing, the Department shall give notice to the | 24 | | person requesting the hearing of the time and place fixed for | 25 | | the hearing and shall hold a hearing in conformity with the | 26 | | provisions of this Act and then issue its final administrative |
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| 1 | | decision in the matter to that person. In the absence of a | 2 | | protest and request for a hearing within 20 days, the | 3 | | Department's decision shall become final without any further | 4 | | determination being made or notice given. | 5 | | (35 ILCS 130/4h new) | 6 | | Sec. 4h. Purchases of cigarettes by licensed retailers. A | 7 | | person who possesses a retailer's license under Section 4g of | 8 | | this Act shall obtain cigarettes for sale only from a licensed | 9 | | distributor, secondary distributor, or manufacturer | 10 | | representative.
| 11 | | (35 ILCS 130/6) (from Ch. 120, par. 453.6)
| 12 | | Sec. 6. Revocation, cancellation, or suspension of | 13 | | license. The Department may, after notice and hearing as | 14 | | provided for by this
Act, revoke, cancel or suspend the license | 15 | | of any distributor , or secondary distributor or retailer for | 16 | | the
violation of any provision of this Act, or for | 17 | | noncompliance with any
provision herein contained, or for any | 18 | | noncompliance with any lawful rule
or regulation promulgated by | 19 | | the Department under Section 8 of this Act, or
because the | 20 | | licensee is determined to be ineligible for a distributor's
| 21 | | license for any one or more of the reasons provided for in | 22 | | Section 4 of
this Act, or because the licensee is determined to | 23 | | be ineligible for a secondary distributor's license for any one | 24 | | or more of the reasons provided for in Section 4c of this Act , |
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| 1 | | or because the licensee is determined to be ineligible for a | 2 | | retailer's license for any one or more of the reasons provided | 3 | | for in Section 4g of this Act . However, no such license shall | 4 | | be revoked, cancelled or
suspended, except after a hearing by | 5 | | the Department with notice to the
distributor , or secondary | 6 | | distributor , or retailer , as aforesaid, and affording such | 7 | | distributor , or secondary distributor , or retailer a | 8 | | reasonable
opportunity to appear and defend, and any | 9 | | distributor , or secondary distributor , or retailer aggrieved | 10 | | by any
decision of the Department with respect thereto may have | 11 | | the determination
of the Department judicially reviewed, as | 12 | | herein provided.
| 13 | | The Department may revoke, cancel, or suspend the license | 14 | | of any
distributor for a violation of the Tobacco Product | 15 | | Manufacturers' Escrow
Enforcement Act as provided in Section 30 | 16 | | of that Act. The Department may revoke, cancel, or suspend the | 17 | | license of any secondary distributor for a violation of | 18 | | subsection (e) of Section 15 of the Tobacco Product | 19 | | Manufacturers' Escrow Enforcement Act.
| 20 | | Any distributor , or secondary distributor , or retailer | 21 | | aggrieved by any decision of the Department under this
Section
| 22 | | may, within 20 days after notice of the decision, protest and | 23 | | request a
hearing. Upon receiving a request for a hearing, the | 24 | | Department shall give
notice in writing to the distributor , or | 25 | | secondary distributor , or retailer requesting the hearing that | 26 | | contains a
statement of the charges preferred against the |
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| 1 | | distributor , or secondary distributor , or retailer and that | 2 | | states the
time and place fixed for the hearing. The Department | 3 | | shall hold the hearing in
conformity with the provisions of | 4 | | this Act and then issue its final
administrative decision in | 5 | | the matter to the distributor , or secondary distributor , or | 6 | | retailer . In the absence of a
protest and request for a hearing | 7 | | within 20 days, the Department's decision
shall become final | 8 | | without any further determination being made or notice
given.
| 9 | | No license so revoked, as aforesaid, shall be reissued to | 10 | | any such
distributor , or secondary distributor , or retailer | 11 | | within a period of 6 months after the date of the final
| 12 | | determination of such revocation. No such license shall be | 13 | | reissued at all
so long as the person who would receive the | 14 | | license is ineligible to
receive a distributor's license under | 15 | | this Act for any one or more of the
reasons provided for in | 16 | | Section 4 of this Act , or is ineligible to receive a secondary | 17 | | distributor's license under this Act for any one or more of the | 18 | | reasons provided for in Section 4c of this Act , or is | 19 | | determined to be ineligible for a retailer's license under the | 20 | | Act for any one or more of the reasons provided for in Section | 21 | | 4g of this Act .
| 22 | | The Department upon complaint filed in the circuit
court | 23 | | may by injunction
restrain any person who fails, or refuses, to | 24 | | comply with any of the
provisions of this Act from acting as a | 25 | | distributor , or secondary distributor , or retailer of | 26 | | cigarettes in this
State.
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| 1 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 2 | | (35 ILCS 130/7) (from Ch. 120, par. 453.7)
| 3 | | Sec. 7.
The Department or any officer or employee of the | 4 | | Department
designated, in writing, by the Director thereof, | 5 | | shall at its or his or
her own instance, or on the written | 6 | | request of any distributor, secondary distributor, retailer, | 7 | | manufacturer with authority to maintain manufacturer | 8 | | representatives, or other interested
party to the proceeding, | 9 | | issue subpoenas requiring the attendance of and
the giving of | 10 | | testimony by witnesses, and subpoenas duces tecum requiring
the | 11 | | production of books, papers, records or memoranda. All | 12 | | subpoenas and
subpoenas duces tecum issued under the terms of | 13 | | this Act may be served by
any person of full age. The fees of | 14 | | witnesses for attendance and travel
shall be the same as the | 15 | | fees of witnesses before the circuit court of this
State; such | 16 | | fees to be paid when the witness is excused from further
| 17 | | attendance. When the witness is subpoenaed at the instance of | 18 | | the
Department or any officer or employee thereof, such fees | 19 | | shall be paid in
the same manner as other expenses of the | 20 | | Department, and when the witness
is subpoenaed at the instance | 21 | | of any other party to any such proceeding,
the cost of service | 22 | | of the subpoena or subpoena duces tecum and the fee of
the | 23 | | witness shall be borne by the party at whose instance the | 24 | | witness is
summoned. In such case the Department, in its | 25 | | discretion, may require a
deposit to cover the cost of such |
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| 1 | | service and witness fees. A subpoena or
subpoena duces tecum so | 2 | | issued shall be served in the same manner as a subpoena
or | 3 | | subpoena duces tecum issued out of a court.
| 4 | | Any circuit court of this State, upon the
application of | 5 | | the Department or any officer or employee thereof, or upon
the | 6 | | application of any other party to the proceeding, may, in its
| 7 | | discretion, compel the attendance of witnesses, the production | 8 | | of books,
papers, records or memoranda and the giving of | 9 | | testimony before the
Department or any officer or employee | 10 | | thereof conducting an investigation
or holding a hearing | 11 | | authorized by this Act, by an attachment for contempt,
or | 12 | | otherwise, in the same manner as production of evidence may be | 13 | | compelled
before the court.
| 14 | | The Department or any officer or employee thereof, or any | 15 | | other party in
an investigation or hearing before the | 16 | | Department, may cause the
depositions of witnesses within the | 17 | | State to be taken in the manner
prescribed by law for like | 18 | | depositions, or depositions for discovery in
civil actions in | 19 | | courts of this State, and to that end compel the
attendance of | 20 | | witnesses and the production of books, papers, records or
| 21 | | memoranda, in the same manner hereinbefore provided.
| 22 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 23 | | (35 ILCS 130/8) (from Ch. 120, par. 453.8)
| 24 | | Sec. 8.
The Department may make, promulgate and enforce | 25 | | such
reasonable rules and regulations relating to the |
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| 1 | | administration and
enforcement of this Act as may be deemed | 2 | | expedient.
| 3 | | Whenever notice is required by this Act, such notice may be | 4 | | given by
United States certified or registered mail, addressed | 5 | | to the person concerned at his
last known address, and proof of | 6 | | such mailing shall be sufficient for the
purposes of this Act. | 7 | | Notice of any hearing provided for by this Act and held before | 8 | | the Department shall
be so given not less than 7 days prior to | 9 | | the day fixed for the hearing.
| 10 | | Hearings provided for in this Act, other than hearings | 11 | | before the Illinois Independent Tax Tribunal, shall be held:
| 12 | | (1) In Cook County, if the taxpayer's or licensee's | 13 | | principal place of business is in
that county;
| 14 | | (2) At the Department's office nearest the taxpayer's | 15 | | or licensee's principal place of
business, if the | 16 | | taxpayer's or licensee's principal place of business is in | 17 | | Illinois but
outside Cook County;
| 18 | | (3) In Sangamon County, if the taxpayer's or licensee's | 19 | | principal place of business is
outside Illinois.
| 20 | | The Circuit Court of the County wherein the hearing is held | 21 | | has
power to review all final administrative decisions of the | 22 | | Department in
administering this Act. The provisions of the | 23 | | Administrative Review Law,
and all amendments and
| 24 | | modifications thereof, and the rules adopted pursuant thereto, | 25 | | shall
apply to and govern all proceedings for the judicial | 26 | | review of final
administrative decisions of the Department |
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| 1 | | under this Act. The term
"administrative decision" is defined | 2 | | as in Section 3-101 of the Code of Civil Procedure.
| 3 | | Service upon the Director of Revenue or Assistant Director | 4 | | of Revenue
of summons issued in any action to review a final
| 5 | | administrative decision shall be service upon the Department. | 6 | | The
Department shall certify the record of its proceedings if | 7 | | the distributor, secondary distributor, retailer, or | 8 | | manufacturer with authority to maintain manufacturer | 9 | | representatives pays to it the sum of 75˘ per page of testimony | 10 | | taken before the Department
and 25˘ per page of all other | 11 | | matters contained in such record, except that
these charges may | 12 | | be waived where the Department is satisfied that the aggrieved
| 13 | | party is a poor person who cannot afford to pay such charges.
| 14 | | Before the delivery of such record to the person applying for | 15 | | it, payment
of these charges must be made, and if
the record is | 16 | | not paid for within 30 days after notice that such record
is | 17 | | available, the
complaint may be dismissed by the court upon | 18 | | motion of the Department.
| 19 | | No stay order shall be entered by the Circuit Court unless | 20 | | the
distributor, secondary distributor, retailer, or | 21 | | manufacturer with authority to maintain manufacturer | 22 | | representatives files with the court a bond in an amount fixed | 23 | | and approved by
the court, to indemnify the State against all | 24 | | loss and injury which may be
sustained by it on account of the | 25 | | review proceedings and to secure all
costs which may be | 26 | | occasioned by such proceedings.
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| 1 | | Whenever any proceeding provided by this Act is begun | 2 | | before the
Department, either by the Department or by a person | 3 | | subject to this Act,
and such person thereafter dies or becomes | 4 | | a person under legal disability
before such
proceeding is | 5 | | concluded, the legal representative of the deceased person
or | 6 | | of the person under legal disability shall notify
the | 7 | | Department of such death or legal disability.
Such legal | 8 | | representative, as such, shall then be substituted
by the | 9 | | Department for such person. If the legal representative fails | 10 | | to
notify the Department of his or her appointment as such | 11 | | legal representative, the
Department may, upon its own motion, | 12 | | substitute such legal representative
in the proceeding pending | 13 | | before the Department for the person who died or
became a | 14 | | person under legal disability.
| 15 | | Hearings to contest an administrative decision under this | 16 | | Act conducted as a result of a protest filed with the Illinois | 17 | | Independent Tax Tribunal on or after July 1, 2013 shall be | 18 | | conducted pursuant to the provisions of the Illinois | 19 | | Independent Tax Tribunal Act of 2012. | 20 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11; | 21 | | 97-1129, eff. 8-28-12.)
| 22 | | (35 ILCS 130/9g new) | 23 | | Sec. 9g. Retailers; reports. Every retailer who is required | 24 | | to procure a license under this Act shall, on or before the | 25 | | 15th day of each calendar month, file a report with the |
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| 1 | | Department, showing the quantity of cigarettes purchased from | 2 | | licensed distributors, secondary distributors, and | 3 | | manufacturer with authority to maintain manufacturer | 4 | | representatives during the preceding calendar month, either | 5 | | within or outside this State, and the quantity of cigarettes | 6 | | sold to consumers or otherwise disposed of during the preceding | 7 | | calendar month. Such reports shall be filed in the form | 8 | | prescribed by the Department and shall contain such other | 9 | | information as the Department may reasonably require. The | 10 | | report shall be filed electronically and be accompanied by | 11 | | appropriate computer generated magnetic media supporting | 12 | | schedule data in the format required by the Department, unless, | 13 | | as provided by rule, the Department grants an exception upon | 14 | | petition of retailer. | 15 | | A certification by the Director of the Department that a | 16 | | report has not been filed, or that information has not been | 17 | | supplied pursuant to the provisions of this Act, shall be prima | 18 | | facie evidence thereof.
| 19 | | (35 ILCS 130/10) (from Ch. 120, par. 453.10)
| 20 | | Sec. 10.
The Department, or any officer or employee | 21 | | designated in writing
by the Director thereof, for the purpose | 22 | | of administering and enforcing the
provisions of this Act, may | 23 | | hold investigations and, except as otherwise provided in the | 24 | | Illinois Independent Tax Tribunal Act of 2012, may hold | 25 | | hearings concerning
any matters covered by this Act, and may |
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| 1 | | examine books, papers, records or
memoranda bearing upon the | 2 | | sale or other disposition of cigarettes by a
distributor, | 3 | | secondary distributor, retailer, manufacturer with authority | 4 | | to maintain manufacturer representatives under Section 4f of | 5 | | this Act, or manufacturer representative, and may issue | 6 | | subpoenas requiring the attendance of a
distributor, secondary | 7 | | distributor, retailer, manufacturer with authority to maintain | 8 | | manufacturer representatives under Section 4f of this Act, or | 9 | | manufacturer representative, or any officer or employee of a | 10 | | distributor, secondary distributor, retailer, manufacturer | 11 | | with authority to maintain manufacturer representatives under | 12 | | Section 4f of this Act, or any person
having knowledge of the | 13 | | facts, and may take testimony and require proof,
and may issue | 14 | | subpoenas duces tecum to compel the production of relevant
| 15 | | books, papers, records and memoranda, for the information of | 16 | | the
Department.
| 17 | | All hearings to contest administrative decisions of the | 18 | | Department conducted as a result of a protest filed with the | 19 | | Illinois Independent Tax Tribunal on or after July 1, 2013 | 20 | | shall be subject to the provisions of the Illinois Independent | 21 | | Tax Tribunal Act of 2012. | 22 | | In the conduct of any investigation or hearing provided for | 23 | | by this Act,
neither the Department, nor any officer or | 24 | | employee thereof, shall be bound
by the technical rules of | 25 | | evidence, and no informality in the proceedings
nor in the | 26 | | manner of taking testimony shall invalidate any rule, order,
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| 1 | | decision or regulation made, approved or confirmed by the | 2 | | Department.
| 3 | | The Director of Revenue, or any duly authorized officer or | 4 | | employee of
the Department, shall have the power to administer | 5 | | oaths to such persons
required by this Act to give testimony | 6 | | before the said Department.
| 7 | | The books, papers, records and memoranda of the Department, | 8 | | or parts
thereof, may be proved in any hearing, investigation | 9 | | or legal proceeding by
a reproduced copy thereof under the | 10 | | certificate of the Director of Revenue.
Such reproduced copy | 11 | | shall, without further proof, be admitted into
evidence before | 12 | | the Department or in any legal proceeding.
| 13 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11; | 14 | | 97-1129, eff. 8-28-12.)
| 15 | | (35 ILCS 130/11c new) | 16 | | Sec. 11c. Retailers; records. Every retailer who is | 17 | | required to procure a license under this Act, shall keep within | 18 | | Illinois, at his business address identified under Section 4g | 19 | | of this Act, complete and accurate records of cigarettes | 20 | | purchased, sold, or otherwise disposed of, and shall preserve | 21 | | and keep within Illinois at his business address all invoices, | 22 | | sales records, copies of bills of sale, inventory at the close | 23 | | of each period for which a report is required of all cigarettes | 24 | | on hand, and other pertinent papers and documents relating to | 25 | | the purchase, sale, or disposition of cigarettes. All books and |
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| 1 | | records and other papers and documents that are required by | 2 | | this Act to be kept shall be kept in the English language, and | 3 | | shall, at all times during the usual business hours of the day, | 4 | | be subject to inspection by the Department or its duly | 5 | | authorized agents and employees. The Department may adopt rules | 6 | | that establish requirements, including record forms and | 7 | | formats, for records required to be kept and maintained by. | 8 | | For purposes of this Section, "records" means all data | 9 | | maintained by the retailer, including data on paper, microfilm, | 10 | | microfiche or any type of machine sensible data compilation. | 11 | | Those books, records, papers, and documents shall be preserved | 12 | | for a period of at least 3 years after the date of the | 13 | | documents, or the date of the entries appearing in the records, | 14 | | unless the Department, in writing, authorizes their | 15 | | destruction or disposal at an earlier date. At all times during | 16 | | the usual business hours of the day, any duly authorized agent | 17 | | or employee of the Department may enter any place of business | 18 | | of the retailer without a search warrant and may inspect the | 19 | | premises to determine whether any of the provisions of this Act | 20 | | are being violated. If such agent or employee is denied free | 21 | | access or is hindered or interfered with in making such | 22 | | examination as herein provided, the license of the retailer | 23 | | shall be subject to suspension or revocation by the Department.
| 24 | | (35 ILCS 130/23) (from Ch. 120, par. 453.23)
| 25 | | Sec. 23.
Every distributor, secondary distributor, |
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| 1 | | retailer, manufacturer with authority to maintain manufacturer | 2 | | representatives under Section 4f of this Act and their | 3 | | manufacturer representatives, or other person who shall | 4 | | knowingly and wilfully
sell or offer for sale any original | 5 | | package, as defined in this Act,
having affixed thereto any | 6 | | fraudulent, spurious, imitation or counterfeit
stamp, or stamp | 7 | | which has been previously affixed, or affixes a stamp which
has | 8 | | previously been affixed to an original package, or who shall | 9 | | knowingly
and wilfully sell or offer for sale any original | 10 | | package, as defined in
this Act, having imprinted thereon | 11 | | underneath the sealed transparent
wrapper thereof any | 12 | | fraudulent, spurious, imitation or counterfeit tax
imprint, | 13 | | shall be deemed guilty of a Class 2 felony.
| 14 | | (Source: P.A. 96-1027, eff. 7-12-10; 97-587, eff. 8-26-11.)
| 15 | | (35 ILCS 130/26) (from Ch. 120, par. 453.26)
| 16 | | Sec. 26.
Whoever acts as a distributor , or secondary | 17 | | distributor , retailer, or manufacturer representative of | 18 | | original packages without having
a license, as required by this | 19 | | Act, shall be guilty of a Class 4 felony.
| 20 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 21 | | Section 15. The Illinois Cigarette Use Tax Act is amended | 22 | | by changing Sections 1, 2-10, 3-10, 4d, and 4e as follows:
| 23 | | (35 ILCS 135/1) (from Ch. 120, par. 453.31)
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| 1 | | Sec. 1. For the purpose of this Act, unless otherwise | 2 | | required by the
context:
| 3 | | "Use" means the exercise by any person of any right or | 4 | | power over
cigarettes incident to the ownership or possession | 5 | | thereof, other than the
making of a sale thereof in the course | 6 | | of engaging in a business of selling
cigarettes and shall | 7 | | include the keeping or retention of cigarettes for use, except | 8 | | that "use" does not include the use of cigarettes by a | 9 | | not-for-profit research institution conducting tests | 10 | | concerning the health effects of tobacco products, provided the | 11 | | cigarettes are not offered for resale.
| 12 | | "Brand Style" means a variety of cigarettes distinguished | 13 | | by the tobacco used, tar and nicotine content, flavoring used, | 14 | | size of the cigarette, filtration on the cigarette or | 15 | | packaging. | 16 | | Until July 1, 2012, "cigarette" means any roll for smoking | 17 | | made wholly or in part of tobacco
irrespective of size or shape | 18 | | and whether or not such tobacco is flavored,
adulterated or | 19 | | mixed with any other ingredient, and the wrapper or cover of
| 20 | | which is made of paper or any other substance or material | 21 | | except tobacco.
| 22 | | "Cigarette", beginning on and after July 1, 2012, means any | 23 | | roll for smoking made wholly or in part of tobacco irrespective | 24 | | of size or shape and whether or not such tobacco is flavored, | 25 | | adulterated or mixed with any other ingredient, and the wrapper | 26 | | or cover of which is made of paper. |
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| 1 | | "Cigarette", beginning on and after July 1, 2012, also | 2 | | shall mean: Any roll for smoking made wholly or in part of | 3 | | tobacco labeled as anything other than a cigarette or not | 4 | | bearing a label, if it meets two or more of the following | 5 | | criteria: | 6 | | (a) the product is sold in packs similar to cigarettes; | 7 | | (b) the product is available for sale in cartons of ten | 8 | | packs; | 9 | | (c) the product is sold in soft packs, hard packs, | 10 | | flip-top boxes, clam shells, or other cigarette-type | 11 | | boxes; | 12 | | (d) the product is of a length and diameter similar to | 13 | | commercially manufactured cigarettes; | 14 | | (e) the product has a cellulose acetate or other | 15 | | integrated filter; | 16 | | (f) the product is marketed or advertised to consumers | 17 | | as a cigarette or cigarette substitute; or | 18 | | (g) other evidence that the product fits within the | 19 | | definition of cigarette. | 20 | | "Contraband cigarettes" means: | 21 | | (a) cigarettes that do not bear a required tax stamp | 22 | | under this Act; | 23 | | (b) cigarettes for which any required federal taxes | 24 | | have not been paid; | 25 | | (c) cigarettes that bear a counterfeit tax stamp; | 26 | | (d) cigarettes that are manufactured, fabricated, |
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| 1 | | assembled, processed, packaged, or labeled by any person | 2 | | other than (i) the owner of the trademark rights in the | 3 | | cigarette brand or (ii) a person that is directly or | 4 | | indirectly authorized by such owner; | 5 | | (e) cigarettes imported into the United States, or | 6 | | otherwise distributed, in violation of the federal | 7 | | Imported Cigarette Compliance Act of 2000 (Title IV of | 8 | | Public Law 106-476); | 9 | | (f) cigarettes that have false manufacturing labels; | 10 | | (g) cigarettes identified in Section 3-10(a)(1) of | 11 | | this Act; | 12 | | (h) cigarettes that are improperly tax stamped, | 13 | | including cigarettes that bear a tax stamp of another state | 14 | | or taxing jurisdiction; or | 15 | | (i) cigarettes made or fabricated by a person holding a | 16 | | cigarette machine operator license under Section 1-20 of | 17 | | the Cigarette Machine Operators' Occupation Tax Act in the | 18 | | possession of manufacturers, distributors, secondary | 19 | | distributors, manufacturer representatives or other | 20 | | retailers for the purpose of resale, regardless of whether | 21 | | the tax has been paid on such cigarettes. | 22 | | "Person" means any natural individual, firm, partnership, | 23 | | association,
joint stock company, joint adventure, public or | 24 | | private corporation,
however formed, limited liability | 25 | | company, or a receiver, executor,
administrator, trustee, | 26 | | guardian or other representative appointed by order of
any |
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| 1 | | court.
| 2 | | "Department" means the Department of Revenue.
| 3 | | "Sale" means any transfer, exchange or barter in any manner | 4 | | or by any
means whatsoever for a consideration, and includes | 5 | | and means all sales made
by any person.
| 6 | | "Original Package" means the individual packet, box or | 7 | | other container
whatsoever used to contain and to convey | 8 | | cigarettes to the consumer.
| 9 | | "Distributor" means any and each of the following:
| 10 | | a. Any person engaged in the business of selling | 11 | | cigarettes in this
State who brings or causes to be brought | 12 | | into this State from without this
State any original | 13 | | packages of cigarettes, on which original packages there
is | 14 | | no authorized evidence underneath a sealed transparent | 15 | | wrapper showing
that the tax liability imposed by this Act | 16 | | has been paid or assumed by the
out-of-State seller of such | 17 | | cigarettes, for sale in the course of such
business.
| 18 | | b. Any person who makes, manufactures or fabricates | 19 | | cigarettes in this
State for sale, except a person who | 20 | | makes, manufactures or fabricates
cigarettes for sale to | 21 | | residents incarcerated in penal institutions or resident
| 22 | | patients or a State-operated mental health facility.
| 23 | | c. Any person who makes, manufactures or fabricates | 24 | | cigarettes outside
this State, which cigarettes are placed | 25 | | in original packages contained in
sealed transparent | 26 | | wrappers, for delivery or shipment into this State, and
who |
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| 1 | | elects to qualify and is accepted by the Department as a | 2 | | distributor
under Section 7 of this Act.
| 3 | | "Distributor" does not include any person who transfers | 4 | | cigarettes to a not-for-profit
research institution that | 5 | | conducts tests concerning the
health effects of tobacco | 6 | | products and who does not offer
the cigarettes for resale.
| 7 | | "Distributor" does not include any person who makes a sale | 8 | | of cigarettes to a purchaser for use or consumption, and not | 9 | | for resale. | 10 | | "Distributor maintaining a place of business in this | 11 | | State", or any like
term, means any distributor having or | 12 | | maintaining within this State,
directly or by a subsidiary, an | 13 | | office, distribution house, sales house,
warehouse or other | 14 | | place of business, or any agent operating within this
State | 15 | | under the authority of the distributor or its subsidiary,
| 16 | | irrespective of whether such place of business or agent is | 17 | | located here
permanently or temporarily, or whether such | 18 | | distributor or subsidiary is
licensed to transact business | 19 | | within this State.
| 20 | | "Business" means any trade, occupation, activity or | 21 | | enterprise engaged
in or conducted in this State for the | 22 | | purpose of selling cigarettes.
| 23 | | "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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| 1 | | 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 of 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 | 10 | | 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.
| 13 | | "Secondary distributor" means any person engaged in the | 14 | | business of selling cigarettes who purchases stamped original | 15 | | packages of cigarettes from a licensed distributor under this | 16 | | Act or the Cigarette Tax Act, sells 75% or more of those | 17 | | cigarettes to retailers for resale, and maintains an | 18 | | established business where a substantial stock of cigarettes is | 19 | | available to retailers for resale. | 20 | | "Secondary distributor maintaining a place of business in | 21 | | this State", or any like term, means any secondary distributor | 22 | | having or maintaining within this State, directly or by a | 23 | | subsidiary, an office, distribution house, sales house, | 24 | | warehouse, or other place of business, or any agent operating | 25 | | within this State under the authority of the secondary | 26 | | distributor or its subsidiary, irrespective of whether such |
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| 1 | | place of business or agent is located here permanently or | 2 | | temporarily, or whether such secondary distributor or | 3 | | subsidiary is licensed to transact business within this State. | 4 | | "Stamp" or "stamps" mean the indicia required to be affixed | 5 | | on a pack of cigarettes that evidence payment of the tax on | 6 | | cigarettes under Section 2 of this Act. | 7 | | "Related party" means any person that is associated with | 8 | | any other person because he or she: | 9 | | (a) is an officer or director of a business; or | 10 | | (b) is legally recognized as a partner in business. | 11 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10; | 12 | | 97-688, eff. 6-14-12.)
| 13 | | (35 ILCS 135/3-10)
| 14 | | Sec. 3-10. Cigarette enforcement.
| 15 | | (a) Prohibitions. It is unlawful for any person:
| 16 | | (1) to sell or distribute in this State; to acquire, | 17 | | hold, own, possess,
or
transport, for sale or distribution | 18 | | in this State; or to import, or cause to be
imported into | 19 | | this State for sale or distribution in this State:
| 20 | | (A) any cigarettes the package of which:
| 21 | | (i) bears any statement, label, stamp, | 22 | | sticker, or notice
indicating that the | 23 | | manufacturer did not intend the cigarettes to be
| 24 | | sold, distributed, or used in the United States, | 25 | | including but not
limited to labels stating "For |
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| 1 | | Export Only", "U.S. Tax Exempt",
"For Use Outside | 2 | | U.S.", or similar wording; or
| 3 | | (ii) does not comply with:
| 4 | | (aa) all requirements imposed by or | 5 | | pursuant to
federal law regarding warnings and | 6 | | other information on
packages of cigarettes | 7 | | manufactured, packaged, or imported
for sale, | 8 | | distribution, or use in the United States, | 9 | | including
but not limited to the precise | 10 | | warning labels specified in the
federal | 11 | | Cigarette Labeling and Advertising Act, 15 | 12 | | U.S.C.
1333; and
| 13 | | (bb) all federal trademark and copyright | 14 | | laws;
| 15 | | (B) any cigarettes imported into the United States | 16 | | in violation of
26 U.S.C. 5754 or any other federal | 17 | | law, or implementing federal
regulations;
| 18 | | (C) any cigarettes that such person otherwise | 19 | | knows or has reason
to know the manufacturer did not | 20 | | intend to be sold, distributed, or used in
the United | 21 | | States; or
| 22 | | (D) any cigarettes for which there has not been | 23 | | submitted to the
Secretary of the U.S. Department of | 24 | | Health and Human Services the list or
lists of the | 25 | | ingredients added to tobacco in the manufacture of the
| 26 | | cigarettes required by the federal Cigarette Labeling |
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| 1 | | and Advertising Act,
15 U.S.C. 1335a;
| 2 | | (2) to alter the package of any cigarettes, prior to | 3 | | sale or distribution
to
the
ultimate consumer, so as to | 4 | | remove, conceal, or obscure:
| 5 | | (A) any statement, label, stamp, sticker, or | 6 | | notice described in
subdivision (a)(1)(A)(i) of this | 7 | | Section;
| 8 | | (B) any health warning that is not specified in, or | 9 | | does not conform
with the requirements of, the federal | 10 | | Cigarette Labeling and Advertising
Act, 15 U.S.C. | 11 | | 1333; or
| 12 | | (3) to affix any stamp required pursuant to this Act to | 13 | | the package of any
cigarettes described in subdivision | 14 | | (a)(1) of this Section or altered in
violation of
| 15 | | subdivision (a)(2).
| 16 | | (b) Documentation. On the first business day of each month, | 17 | | each person
licensed
to affix the State tax stamp to cigarettes | 18 | | shall file with the Department, for
all cigarettes
imported | 19 | | into the United States to which the person has affixed the tax | 20 | | stamp
in the
preceding month:
| 21 | | (1) a copy of:
| 22 | | (A) the permit issued pursuant to the Internal | 23 | | Revenue Code, 26
U.S.C. 5713, to the person importing | 24 | | the cigarettes into the United States
allowing the | 25 | | person to import the cigarettes; and
| 26 | | (B) the customs form containing, with respect to |
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| 1 | | the cigarettes, the
internal revenue tax information | 2 | | required by the U.S. Bureau of Alcohol,
Tobacco and | 3 | | Firearms;
| 4 | | (2) a statement, signed by the person under penalty of | 5 | | perjury, which shall
be treated as confidential by the | 6 | | Department and exempt from disclosure under
the Freedom of | 7 | | Information Act, identifying the brand and brand styles of | 8 | | all such
cigarettes, the quantity of each brand style of | 9 | | such cigarettes, the supplier of such
cigarettes, and the | 10 | | person or persons, if any, to whom such cigarettes have | 11 | | been
conveyed for resale; and a separate statement, signed | 12 | | by the individual under
penalty of perjury, which shall not | 13 | | be treated as confidential or exempt from
disclosure, | 14 | | separately identifying the brands and brand styles of such
| 15 | | cigarettes;
and
| 16 | | (3) a statement, signed by an officer of the | 17 | | manufacturer or importer
under penalty of perjury, | 18 | | certifying that the manufacturer or importer has
complied | 19 | | with:
| 20 | | (A) the package health warning and ingredient | 21 | | reporting
requirements of the federal Cigarette | 22 | | Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 23 | | with respect to such cigarettes; and
| 24 | | (B) the provisions of Exhibit T of the Master | 25 | | Settlement Agreement
entered in
the case of People of | 26 | | the State of Illinois v. Philip Morris, et al. (Circuit
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| 1 | | Court of Cook County, No. 96-L13146), including a | 2 | | statement
indicating whether the manufacturer is, or | 3 | | is not, a participating tobacco
manufacturer within | 4 | | the meaning of Exhibit T.
| 5 | | (c) Administrative sanctions.
| 6 | | (1) Upon finding that a distributor, secondary | 7 | | distributor, retailer, or a person has committed any of the | 8 | | acts
prohibited by
subsection
(a), knowing or having reason | 9 | | to know that he or she has done so, or upon finding that a | 10 | | distributor or person has failed
to comply
with any | 11 | | requirement of subsection (b), the Department may revoke or | 12 | | suspend
the
license or licenses of any
distributor , | 13 | | retailer, or secondary distributor pursuant to the | 14 | | procedures set forth in Section 6 and impose on the
| 15 | | distributor, secondary distributor, retailer, or person, a | 16 | | civil penalty in an amount not to exceed the greater of | 17 | | 500% of
the
retail value of the cigarettes involved or | 18 | | $5,000.
| 19 | | (2) Cigarettes that are acquired, held, owned, | 20 | | possessed, transported in,
imported into, or sold or | 21 | | distributed in this State in violation of this
Section | 22 | | shall be deemed contraband under this Act and are subject | 23 | | to seizure
and forfeiture as provided in this Act, and all | 24 | | such cigarettes seized and
forfeited shall be destroyed or | 25 | | maintained and used in an undercover capacity. Such | 26 | | cigarettes shall be deemed contraband
whether the |
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| 1 | | violation of this Section is knowing or otherwise.
| 2 | | (d) Unfair trade practices. In addition to any other | 3 | | penalties provided for in this Act, a violation of subsection | 4 | | (a) or subsection
(b) of this Section shall constitute an | 5 | | unlawful practice as provided in the
Consumer Fraud and | 6 | | Deceptive Business Practices Act.
| 7 | | (d-1) Retailers who are licensed under Section 4g of the | 8 | | Cigarette Tax Act and secondary distributors shall not be | 9 | | liable under subsections (c)(1) and (d) of this Section for | 10 | | unknowingly possessing, selling, or distributing to consumers | 11 | | or users cigarettes identified in subsection (a)(1) of this | 12 | | Section if the cigarettes possessed, sold, or distributed by | 13 | | the licensed retailer were obtained from a distributor or | 14 | | secondary distributor licensed under this Act or the Cigarette | 15 | | Tax Act. | 16 | | (d-2) Criminal Penalties. A distributor, secondary | 17 | | distributor, retailer. or person who violates subsection (a), | 18 | | or a distributor, secondary distributor, or person who violates | 19 | | subsection (b) of this Section shall be guilty of a Class 4 | 20 | | felony. | 21 | | (e) Unfair cigarette sales. For purposes of the Trademark | 22 | | Registration and
Protection Act and the Counterfeit Trademark | 23 | | Act, cigarettes imported or
reimported into the United States | 24 | | for sale or distribution under any trade
name, trade dress, or | 25 | | trademark that is the same as, or is confusingly similar
to, | 26 | | any trade name, trade dress, or trademark used for cigarettes |
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| 1 | | manufactured
in the United States for sale or distribution in | 2 | | the United States shall be
presumed to have been purchased | 3 | | outside of the ordinary channels of trade.
| 4 | | (f) General provisions.
| 5 | | (1) This Section shall be enforced by the Department; | 6 | | provided that, at
the request of the Director of Revenue or | 7 | | the Director's duly authorized agent,
the State police and | 8 | | all local police authorities shall enforce the provisions
| 9 | | of this Section. The Attorney General has concurrent power | 10 | | with the State's
Attorney of any county to enforce this | 11 | | Section.
| 12 | | (2) For the purpose of enforcing this Section, the | 13 | | Director of Revenue and
any agency to which the Director | 14 | | has delegated enforcement
responsibility pursuant to | 15 | | subdivision (f)(1) may request information from any
State | 16 | | or local agency and may share information with and request | 17 | | information
from any federal agency and any agency of any | 18 | | other state or any local agency
of any other state.
| 19 | | (3) In addition to any other remedy provided by law, | 20 | | including
enforcement as provided in subdivision (f) | 21 | | (a) (1), any person may bring an action
for appropriate | 22 | | injunctive or other equitable relief for a violation of | 23 | | this
Section; actual damages, if any, sustained by reason | 24 | | of the violation; and, as
determined by the court, interest | 25 | | on the damages from the date of the
complaint, taxable | 26 | | costs, and reasonable attorney's fees. If the trier of fact
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| 1 | | finds that the violation is flagrant, it may increase | 2 | | recovery to an amount not
in excess of 3 times the actual | 3 | | damages sustained by reason of the violation.
| 4 | | (g) Definitions. As used in this Section:
| 5 | | "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 6 | | "Package" means that term as defined in 15 U.S.C. 1332(4).
| 7 | | (h) Applicability.
| 8 | | (1) This Section does not apply to:
| 9 | | (A) cigarettes allowed to be imported or brought | 10 | | into the United
States for personal use; and
| 11 | | (B) cigarettes sold or intended to be sold as | 12 | | duty-free merchandise
by a duty-free sales enterprise | 13 | | in accordance with the provisions of 19
U.S.C. 1555(b) | 14 | | and any implementing regulations; except that this | 15 | | Section
shall apply to any such cigarettes that are | 16 | | brought back into the customs
territory for resale | 17 | | within the customs territory.
| 18 | | (2) The penalties provided in this Section are in | 19 | | addition to any other
penalties imposed under other | 20 | | provision of law.
| 21 | | (Source: P.A. 95-1053, eff. 1-1-10; 96-782, eff. 1-1-10; | 22 | | 96-1027, eff. 7-12-10.)
| 23 | | (35 ILCS 135/4d) | 24 | | Sec. 4d. Sales of cigarettes to and by retailers. In-state | 25 | | makers, manufacturers, or fabricators licensed as distributors |
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| 1 | | under Section 4 of this Act and out-of-state makers, | 2 | | manufacturers, or fabricators holding permits under Section 7 | 3 | | of this Act may not sell original packages of cigarettes to | 4 | | retailers. A retailer who is licensed under Section 4g of the | 5 | | Cigarette Tax Act may sell only original packages of cigarettes | 6 | | obtained from licensed secondary distributors or licensed | 7 | | distributors other than in-state makers, manufacturers, or | 8 | | fabricators licensed as distributors under Section 4 of this | 9 | | Act and out-of-state makers, manufacturers, or fabricators | 10 | | holding permits under Section 7 of this Act.
| 11 | | (Source: P.A. 96-782, eff. 1-1-10; 96-1027, eff. 7-12-10.) | 12 | | (35 ILCS 135/4e) | 13 | | Sec. 4e. Sales of cigarettes to and by secondary | 14 | | distributors. In-state makers, manufacturers, and fabricators | 15 | | licensed as distributors under Section 4 of this Act and | 16 | | out-of-state makers, manufacturers, and fabricators holding | 17 | | permits under Section 7 of this Act may not sell original | 18 | | packages of cigarettes to secondary distributors. A secondary | 19 | | distributor may sell only original packages of cigarettes | 20 | | obtained from licensed distributors other than in-state | 21 | | makers, manufacturers, or fabricators licensed as distributors | 22 | | under Section 4 of this Act and out-of-state makers, | 23 | | manufacturers, or fabricators holding permits under Section 7 | 24 | | of this Act. Secondary distributors may sell cigarettes to | 25 | | Illinois retailers who are licensed under Section 4g of the |
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| 1 | | Cigarette Tax Act for resale, and are also authorized to make | 2 | | retail sales of cigarettes at the location on the secondary | 3 | | distributor's license as long as the secondary distributor | 4 | | obtains a license under Section 4g of the Cigarette Tax Act and | 5 | | sells 75% or more of the cigarettes sold at such location to | 6 | | retailers who are licensed under Section 4g of the Cigarette | 7 | | Tax Act for resale. | 8 | | All sales by secondary distributors to Illinois retailers | 9 | | who are licensed under Section 4g of the Cigarette Tax Act must | 10 | | be made at the location on the secondary distributor's license. | 11 | | Retailers who are issued a license under Section 4g of the | 12 | | Cigarette Tax Act must take possession of all cigarettes sold | 13 | | by the secondary distributor at the secondary distributor's | 14 | | licensed address. Secondary distributors may not make | 15 | | deliveries of cigarettes to Illinois retailers who are licensed | 16 | | under Section 4g of the Cigarette Tax Act . | 17 | | Secondary distributors may not file a claim for credit or | 18 | | refund with the State under Section 14a of this Act.
| 19 | | (Source: P.A. 96-1027, eff. 7-12-10.) | 20 | | Section 20. The Illinois Tobacco Products Tax Act is | 21 | | amended by changing Sections 10-5, 10-20, 10-25, 10-35, and | 22 | | 10-50 and by adding Sections 10-21, 10-22, 10-36, and 10-53 as | 23 | | follows:
| 24 | | (35 ILCS 143/10-5)
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| 1 | | Sec. 10-5. Definitions. For purposes of this Act:
| 2 | | "Business" means any trade, occupation, activity, or | 3 | | enterprise engaged
in, at any location whatsoever, for the | 4 | | purpose of selling tobacco products.
| 5 | | "Cigarette" has the meaning ascribed to the term in Section | 6 | | 1 of the
Cigarette Tax Act.
| 7 | | "Correctional Industries program" means a program run by a | 8 | | State penal
institution in which residents of the penal | 9 | | institution produce tobacco
products for sale to persons | 10 | | incarcerated in penal institutions or resident
patients of a | 11 | | State operated mental health facility.
| 12 | | "Department" means the Illinois Department of Revenue.
| 13 | | "Distributor" means any of the following:
| 14 | | (1) Any manufacturer or wholesaler in this State | 15 | | engaged in the business
of selling tobacco products who | 16 | | sells, exchanges, or distributes tobacco
products to | 17 | | retailers or consumers in this State.
| 18 | | (2) Any manufacturer or wholesaler engaged
in
the | 19 | | business of selling tobacco products from without this | 20 | | State who sells,
exchanges, distributes,
ships, or | 21 | | transports tobacco products to retailers or consumers | 22 | | located in
this State,
so long as that manufacturer or | 23 | | wholesaler has or maintains within this State,
directly or | 24 | | by subsidiary, an office, sales house, or other place of | 25 | | business,
or any agent or other representative operating | 26 | | within this State under the
authority of the person or |
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| 1 | | subsidiary, irrespective of whether the place of
business | 2 | | or agent or other representative is located here | 3 | | permanently or
temporarily.
| 4 | | (3) Any retailer who receives tobacco products on which | 5 | | the tax has not
been or
will not be paid by another | 6 | | distributor.
| 7 | | "Distributor" does not include any person, wherever | 8 | | resident or located, who
makes, manufactures, or fabricates | 9 | | tobacco products as part of a Correctional
Industries program | 10 | | for sale to residents incarcerated in penal institutions or
| 11 | | resident patients of a State operated mental health facility.
| 12 | | "Manufacturer" means any person, wherever resident or | 13 | | located, who
manufactures and sells tobacco products, except a | 14 | | person who makes,
manufactures, or fabricates tobacco products | 15 | | as a part of a Correctional
Industries program for sale to | 16 | | persons incarcerated in penal institutions or
resident | 17 | | patients of a State operated mental health facility.
| 18 | | Beginning on January 1, 2013, "moist snuff" means any | 19 | | finely cut, ground, or powdered tobacco that is not intended to | 20 | | be smoked, but shall not include any finely cut, ground, or | 21 | | powdered tobacco that is intended to be placed in the nasal | 22 | | cavity. | 23 | | "Person" means any natural individual, firm, partnership, | 24 | | association, joint
stock company, joint venture, limited | 25 | | liability company, or public or private
corporation, however | 26 | | formed, or a receiver, executor, administrator, trustee,
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| 1 | | conservator, or other representative appointed by order of any | 2 | | court.
| 3 | | "Place of business" means and includes any place where | 4 | | tobacco products
are sold or where tobacco products are | 5 | | manufactured, stored, or kept for
the purpose of sale or | 6 | | consumption, including any vessel, vehicle, airplane,
train, | 7 | | or vending machine.
| 8 | | "Retailer" means any person in this State engaged in the | 9 | | business of selling
tobacco products to consumers in this | 10 | | State, regardless of quantity or number
of sales.
| 11 | | "Sale" means any transfer, exchange, or barter in any | 12 | | manner or by any means
whatsoever for a consideration and | 13 | | includes all sales made by
persons.
| 14 | | "Tobacco products" means any cigars; cheroots; stogies; | 15 | | periques; granulated,
plug cut, crimp cut, ready rubbed, and | 16 | | other smoking tobacco; snuff (including moist snuff) or snuff
| 17 | | flour; cavendish; plug and twist tobacco; fine-cut and other | 18 | | chewing tobaccos;
shorts; refuse scraps, clippings, cuttings, | 19 | | and sweeping of tobacco; and
other kinds and forms of tobacco, | 20 | | prepared in such manner as to be suitable for
chewing or | 21 | | smoking in a pipe or otherwise, or both for chewing and | 22 | | smoking; but
does not include cigarettes as defined in Section | 23 | | 1 of the Cigarette Tax Act or tobacco purchased for the | 24 | | manufacture of
cigarettes by cigarette distributors and | 25 | | manufacturers defined in the
Cigarette Tax Act and persons who | 26 | | make, manufacture, or fabricate
cigarettes as a part of a |
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| 1 | | Correctional Industries program for sale to
residents | 2 | | incarcerated in penal institutions or resident patients of a
| 3 | | State operated mental health facility.
| 4 | | "Wholesale price" means the established list price for | 5 | | which a manufacturer
sells tobacco products to a distributor, | 6 | | before the allowance of any discount,
trade allowance, rebate, | 7 | | or other reduction.
In the absence of such an established list | 8 | | price, the manufacturer's invoice
price at which the | 9 | | manufacturer sells the tobacco product to unaffiliated
| 10 | | distributors, before any discounts, trade allowances, rebates, | 11 | | or other
reductions, shall be presumed to be the wholesale | 12 | | price.
| 13 | | "Wholesaler" means any person, wherever resident or | 14 | | located, engaged in the
business of selling tobacco products to | 15 | | others for the purpose of resale.
| 16 | | (Source: P.A. 97-688, eff. 6-14-12.)
| 17 | | (35 ILCS 143/10-20)
| 18 | | Sec. 10-20. Distributor's Licenses. It shall be unlawful | 19 | | for any person to engage in
business as a distributor of | 20 | | tobacco products within the
meaning
of this Act without first | 21 | | having obtained a license to do so from the
Department. | 22 | | Application for that license shall be made to the Department in | 23 | | a
form prescribed and furnished by the Department. Each | 24 | | applicant for a license
shall furnish to the Department on a | 25 | | form, signed and verified by the
applicant, the following |
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| 1 | | information:
| 2 | | (1) The name of the applicant.
| 3 | | (2) The address of the location at which the applicant | 4 | | proposes to engage
in business as a distributor of tobacco | 5 | | products.
| 6 | | (3) Other information the Department may reasonably | 7 | | require.
| 8 | | Except as otherwise provided in this Section, every | 9 | | applicant who is required
to procure a distributor's license | 10 | | shall file with his or her application a
joint and several | 11 | | bond. The bond shall be executed to the Department of
Revenue, | 12 | | with good and sufficient surety or sureties residing or | 13 | | licensed to do
business within the State of Illinois, | 14 | | conditioned upon the true and faithful
compliance by the | 15 | | licensee with all of the provisions of this Act. The
Department | 16 | | shall fix the amount of the bond for each applicant, taking | 17 | | into
consideration the amount of money expected to become due | 18 | | from the applicant
under this Act. The amount of bond required | 19 | | by the Department shall be an
amount that, in its opinion, will | 20 | | protect the State of Illinois against failure
to pay the amount | 21 | | that may become due from the applicant under this Act, but
the | 22 | | amount of the security required by the Department shall not | 23 | | exceed 3 times
the amount of the applicant's average monthly | 24 | | tax liability, or $50,000,
whichever amount is lower. The bond, | 25 | | a reissue, or a substitute shall be kept
in full force and | 26 | | effect during the entire period covered by the license. A
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| 1 | | separate application for license shall be made, and bond filed,
| 2 | | for each place of business at which a person who is required to | 3 | | procure a
distributor's license proposes to engage in business | 4 | | as a distributor under this Act.
| 5 | | The Department, upon receipt of an application and bond in | 6 | | proper form,
shall issue to the applicant a license, in a form | 7 | | prescribed by the
Department, which shall permit the applicant | 8 | | to whom it is issued
to engage in business as a distributor at | 9 | | the place shown on his or her
application. The license shall be | 10 | | issued by the Department without charge
or cost to the | 11 | | applicant. No license issued under this Act is
transferable or | 12 | | assignable. The license shall be conspicuously displayed
in the | 13 | | place of business conducted by the licensee under the
license.
| 14 | | The bonding requirement in this Section does not apply to | 15 | | an applicant
for a distributor's license who is already bonded | 16 | | under the Cigarette
Tax Act or the Cigarette Use Tax Act.
| 17 | | Licenses issued by the Department under this Act shall be valid | 18 | | for a period
not to exceed one year after issuance unless | 19 | | sooner revoked, canceled, or
suspended as provided in this Act.
| 20 | | No license shall be issued to any person who is in default | 21 | | to the State
of Illinois for moneys due under this Act or any | 22 | | other tax Act administered
by the Department.
| 23 | | The Department may, in its discretion, upon application, | 24 | | authorize the
payment of the tax imposed under Section 10-10 by | 25 | | any distributor or
manufacturer not otherwise subject to the | 26 | | tax imposed under this Act who, to
the satisfaction of the |
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| 1 | | Department, furnishes adequate security to ensure
payment of | 2 | | the tax. The distributor or manufacturer shall be issued, | 3 | | without
charge, a license to remit the tax. When so authorized, | 4 | | it shall be the duty
of the distributor or manufacturer to | 5 | | remit the tax imposed upon the wholesale
price of tobacco | 6 | | products sold or otherwise disposed of to retailers or
| 7 | | consumers located in this State, in the
same manner and subject | 8 | | to the same requirements as any other
distributor or
| 9 | | manufacturer licensed under this Act.
| 10 | | The Department may revoke, suspend, or cancel the license | 11 | | of a distributor
of roll-your-own tobacco (as that term is used | 12 | | in Section 10 of the Tobacco
Product
Manufacturers' Escrow Act) | 13 | | under this Act if the tobacco product manufacturer,
as
defined | 14 | | in Section 10 of the Tobacco Product Manufacturers' Escrow Act, | 15 | | that
made or sold the roll-your-own tobacco has failed to | 16 | | become a participating
manufacturer, as defined in subdivision | 17 | | (a)(1) of Section 15 of the Tobacco
Product Manufacturers' | 18 | | Escrow Act, or has failed to create a qualified escrow
fund for | 19 | | any roll-your-own tobacco manufactured by the tobacco product
| 20 | | manufacturer
and sold in this State or otherwise failed to | 21 | | bring itself into compliance with
subdivision (a)(2) of Section | 22 | | 15
of the Tobacco Product Manufacturers' Escrow Act.
| 23 | | Any person aggrieved by any decision of the Department | 24 | | under this Section
may, within 20 days after notice of that | 25 | | decision, protest and request a
hearing, whereupon the | 26 | | Department must give notice to that person of the time
and |
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| 1 | | place fixed for the hearing and must hold a hearing in | 2 | | conformity with
the provisions of this Act and then issue its | 3 | | final administrative decision in
the matter to that person. In | 4 | | the absence of such a protest within 20 days,
the Department's | 5 | | decision becomes final without any further determination
being | 6 | | made or notice given.
| 7 | | (Source: P.A. 92-231, eff. 8-2-01; 92-737, eff. 7-25-02.)
| 8 | | (35 ILCS 143/10-21 new) | 9 | | Sec. 10-21. Retailer's license. Beginning on January 1, | 10 | | 2014, no person may engage in business as a retailer of tobacco | 11 | | products in this State without first having obtained a license | 12 | | from the Department. Application for license shall be made to | 13 | | the Department on a form furnished and prescribed by the | 14 | | Department. Each applicant for a license under this Section | 15 | | shall furnish to the Department on the form signed and verified | 16 | | by the applicant the following information: | 17 | | (1) the name and address of the applicant; | 18 | | (2) the address of the location at which the applicant | 19 | | proposes to engage in business as a retailer of tobacco | 20 | | products in this State; | 21 | | (3) such other additional information as the | 22 | | Department may lawfully require by its rules and | 23 | | regulations. | 24 | | The annual license fee payable to the Department for each | 25 | | retailer's license shall be $250. The fee will be deposited |
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| 1 | | into the Tax Compliance and Administration Fund and used | 2 | | towards the cost of retail inspections. Each applicant for | 3 | | license shall pay such fee to the Department at the time of | 4 | | submitting his application for license to the Department. The | 5 | | Department may, by rule, require an applicant for a license | 6 | | under this Section to electronically file and pay the | 7 | | application and fee. | 8 | | Every applicant who is required to procure a retailer's | 9 | | license shall file with his application a joint and several | 10 | | bond. Such bond shall be executed to the Department of Revenue, | 11 | | with good and sufficient surety or sureties residing or | 12 | | licensed to do business within the State of Illinois, in an | 13 | | amount of not less than $2,500, conditioned upon the true and | 14 | | faithful compliance by the licensee with all of the provisions | 15 | | of this Act. Such bond, or a reissue thereof, or a substitute | 16 | | therefore, shall be kept in effect during the entire period | 17 | | covered by the license. | 18 | | A separate application for license shall be made, a | 19 | | separate annual license fee paid and a separate bond filed, for | 20 | | each place of business at which a person who is required to | 21 | | procure a retailer's license under this Section proposes to | 22 | | engage in business as a retailer in Illinois under this Act. | 23 | | The following are ineligible to receive a retailer's | 24 | | license under this Act: | 25 | | (1) a person who is not of good character and | 26 | | reputation in the community in which he resides; |
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| 1 | | (2) a person who has been convicted of a felony under | 2 | | any Federal or State law, if the Department, after | 3 | | investigation and a hearing, if requested by the applicant, | 4 | | determines that such person has not been sufficiently | 5 | | rehabilitated to warrant the public trust; and | 6 | | (3) a corporation, if any officer, manager or director | 7 | | thereof, or any stockholder or stockholders owning in the | 8 | | aggregate more than 5% of the stock of such corporation, | 9 | | would not be eligible to receive a license under this Act | 10 | | for any reason. | 11 | | The Department, upon receipt of an application, license fee | 12 | | and bond in proper form, from a person who is eligible to | 13 | | receive a retailer's license under this Act, shall issue to | 14 | | such applicant a license in form as prescribed by the | 15 | | Department, which license shall permit the applicant to which | 16 | | it is issued to engage in business as a retailer under this Act | 17 | | at the place shown in his application. All licenses issued by | 18 | | the Department under this Section shall be valid for a period | 19 | | not to exceed one year after issuance unless sooner revoked, | 20 | | canceled or suspended as provided in this Act. No license | 21 | | issued under this Section is transferable or assignable. Such | 22 | | license shall be conspicuously displayed in the place of | 23 | | business conducted by the licensee in Illinois under such | 24 | | license. A person who obtains a license as a retailer who | 25 | | ceases to do business as specified in the license, or who never | 26 | | commenced business, or who obtains a distributor's license, or |
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| 1 | | whose license is suspended or revoked, shall immediately | 2 | | surrender the license to the Department. The Department shall | 3 | | not issue a license to a retailer unless the retailer is also | 4 | | validly registered under the Retailers Occupation Tax Act. | 5 | | A retailer as defined under this Act need not obtain an | 6 | | additional license under this Act, but shall be deemed to be | 7 | | sufficiently licensed by virtue of his being properly licensed | 8 | | as a retailer under Section 4g of the Cigarette Tax Act. | 9 | | Any person aggrieved by any decision of the Department | 10 | | under this subsection may, within 20 days after notice of the | 11 | | decision, protest and request a hearing. Upon receiving a | 12 | | request for a hearing, the Department shall give notice to the | 13 | | person requesting the hearing of the time and place fixed for | 14 | | the hearing and shall hold a hearing in conformity with the | 15 | | provisions of this Act and then issue its final administrative | 16 | | decision in the matter to that person. In the absence of a | 17 | | protest and request for a hearing within 20 days, the | 18 | | Department's decision shall become final without any further | 19 | | determination being made or notice given. | 20 | | (35 ILCS 143/10-22 new) | 21 | | Sec. 10-22. Purchases of tobacco products by licensed | 22 | | retailers. A person who possesses a retailer's license under | 23 | | Section 10-21 of this Act shall obtain tobacco products for | 24 | | sale only from a licensed distributor.
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| 1 | | (35 ILCS 143/10-25)
| 2 | | Sec. 10-25. License actions. | 3 | | (a) The Department may, after notice and a hearing,
revoke, | 4 | | cancel, or suspend the license of any distributor or retailer | 5 | | who violates any of
the provisions of this Act. The notice | 6 | | shall specify the alleged violation or
violations upon which | 7 | | the revocation, cancellation, or suspension proceeding is
| 8 | | based.
| 9 | | (b) The Department may revoke, cancel, or suspend the | 10 | | license of any
distributor for a violation of the Tobacco | 11 | | Product Manufacturers' Escrow
Enforcement Act as provided in | 12 | | Section 20 of that Act.
| 13 | | (c) The Department shall suspend for 7 days the license of
| 14 | | a retailer for a first violation of the Sale of Tobacco to
| 15 | | Minors Act, as provided in Section 3 of that Act. | 16 | | The Department shall suspend for 30 days the license of a
| 17 | | retailer for a second violation of the Sale of Tobacco to | 18 | | Minors Act, as provided in Section 3 of that Act. | 19 | | The Department shall revoke the license of a retailer for a
| 20 | | third or subsequent violation of the Sale of Tobacco to Minors | 21 | | Act, as provided in Section 3 of that Act. | 22 | | The Department may, by application to any circuit court, | 23 | | obtain an injunction
restraining any person who engages in | 24 | | business as a distributor of tobacco
products without a license | 25 | | (either because his or her license has been revoked,
canceled, | 26 | | or suspended or because of a failure to obtain a license in the |
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| 1 | | first
instance) from engaging in that business until that | 2 | | person, as if that person
were a new applicant for a license, | 3 | | complies with all of the conditions,
restrictions, and | 4 | | requirements of Section 10-20 of this Act and qualifies for
and | 5 | | obtains a license. Refusal or neglect to obey the order of the | 6 | | court may
result in punishment for contempt.
| 7 | | (Source: P.A. 92-737, eff. 7-25-02.)
| 8 | | (35 ILCS 143/10-35)
| 9 | | Sec. 10-35. Record keeping. | 10 | | (a) Every distributor, as defined in Section 10-5,
shall | 11 | | keep complete and accurate records of tobacco products held, | 12 | | purchased,
manufactured, brought in or caused to be brought in | 13 | | from without the State, and
tobacco products sold, or otherwise | 14 | | disposed of, and shall preserve and keep
all invoices, bills of | 15 | | lading, sales records, and copies of bills
of sale, the | 16 | | wholesale price for tobacco products sold or otherwise disposed
| 17 | | of, an inventory of tobacco products prepared as of December 31 | 18 | | of each year or
as of the last day of the distributor's fiscal | 19 | | year if he or she files federal
income tax returns on the basis | 20 | | of a fiscal year, and other pertinent papers
and documents | 21 | | relating to the manufacture, purchase, sale, or disposition of
| 22 | | tobacco products. Every sales invoice issued by a licensed | 23 | | distributor to a retailer in this State shall contain the | 24 | | distributor's Tobacco Products License number. | 25 | | (b) Every retailer, as defined in Section 10-5, shall keep |
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| 1 | | within Illinois, at his or her licensed address, complete and | 2 | | accurate records of tobacco products held, purchased, sold, or | 3 | | otherwise disposed of, and shall preserve and keep all | 4 | | invoices, bills of lading, sales records, and copies of bills | 5 | | of sale, returns and other pertinent papers and documents | 6 | | relating to the purchase, sale, or disposition of tobacco | 7 | | products. | 8 | | (c) Books, records, papers, and documents that are
required | 9 | | by this Act to be kept shall, at all times during the usual | 10 | | business
hours of the day, be subject to inspection by the | 11 | | Department or its duly
authorized agents and employees. The | 12 | | books, records, papers, and documents for
any period with | 13 | | respect to which the Department is authorized to issue a notice
| 14 | | of tax liability shall be preserved until the expiration of | 15 | | that period.
| 16 | | (Source: P.A. 89-21, eff. 6-6-95.)
| 17 | | (35 ILCS 143/10-36 new) | 18 | | Sec. 10-36. Proof of payment of tax imposed by this Act. | 19 | | Every licensed distributor of tobacco products in this State is | 20 | | required to show proof of the tax having been paid as required | 21 | | by this Act by displaying its Tobacco Products License number | 22 | | on every sales invoice issued to a retailer in this State. No | 23 | | retailer shall possess tobacco products without either a proper | 24 | | invoice indicating that the tobacco products tax was paid by a | 25 | | distributor for the tobacco products in the retailer's |
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| 1 | | possession or other proof that the tax was paid by the retailer | 2 | | if it has purchased tobacco products on which tax has not been | 3 | | paid as required by this Act. Failure to comply with the | 4 | | provisions of this paragraph may be grounds for revocation of a | 5 | | distributor's or retailer's license in accordance with Section | 6 | | 10-25 of this Act or Section 6 of the Cigarette Tax Act. In | 7 | | addition, the Department may impose a civil penalty not to | 8 | | exceed $1000 for each violation, which shall be deposited into | 9 | | the Tax Compliance and Administration Fund.
| 10 | | (35 ILCS 143/10-50)
| 11 | | Sec. 10-50. Violations and penalties. When the amount due | 12 | | is under $300,
any distributor who fails to file a return, | 13 | | willfully wilfully fails or refuses to
make any payment to the | 14 | | Department of the tax imposed by this Act, or files
a | 15 | | fraudulent return, or any officer or agent of a corporation | 16 | | engaged in the
business of distributing tobacco products to | 17 | | retailers and consumers
located in this State who signs a | 18 | | fraudulent
return filed on behalf of the corporation, or any | 19 | | accountant or other agent
who knowingly enters false | 20 | | information on the return of any taxpayer under this
Act is | 21 | | guilty of a Class 4 felony.
| 22 | | Any person who violates any provision of Sections Section | 23 | | 10-20 , 10-21, and 10-22 of this Act, fails
to keep books and | 24 | | records as required under this Act, or willfully wilfully | 25 | | violates a
rule or regulation of the Department for the |
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| 1 | | administration and enforcement of
this Act is guilty of a Class | 2 | | 4 felony. A person commits a separate offense on
each day that | 3 | | he or she engages in business in violation of Sections Section | 4 | | 10-20 , 10-21, and 10-22 of
this Act.
| 5 | | Any person who violates any provision of Sections 10 20, | 6 | | 10-21 and 10-22 of this Act, fails to keep books and records as | 7 | | required under this Act, or willfully violates a rule or | 8 | | regulation of the Department for the administration and | 9 | | enforcement of this Act is guilty of a business offense and may | 10 | | be fined up to $5000. A person commits a separate offense on | 11 | | each day that he or she engages in business in violation of | 12 | | Sections 10 20, 10-21 and 10-22 of this Act. | 13 | | When the amount due is under $300, any person who accepts | 14 | | money that is due
to the Department under this Act from a | 15 | | taxpayer for the purpose of acting as
the taxpayer's agent to | 16 | | make the payment to the Department, but who fails to
remit the | 17 | | payment to the Department when due, is guilty of a Class 4 | 18 | | felony.
| 19 | | When the amount due is $300 or more, any distributor who | 20 | | files,
or causes to be filed, a fraudulent return, or any | 21 | | officer or agent of a
corporation engaged in the business of | 22 | | distributing tobacco products
to retailers and consumers | 23 | | located in this State who files or causes to be
filed or signs | 24 | | or causes
to be signed a fraudulent return filed on behalf of | 25 | | the corporation, or
any accountant or other agent who knowingly | 26 | | enters false information on
the return of any taxpayer under |
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| 1 | | this Act is guilty of a Class 3 felony.
| 2 | | When the amount due is $300 or more, any person engaged in | 3 | | the business
of distributing tobacco products to retailers and | 4 | | consumers located in this
State who fails to file a return,
| 5 | | willfully wilfully fails or refuses to make any payment to the | 6 | | Department of the tax
imposed by this Act, or accepts money | 7 | | that is due to the Department under
this Act from a taxpayer | 8 | | for the purpose of acting as the taxpayer's agent to
make | 9 | | payment to the Department but fails to remit such payment to | 10 | | the
Department when due is guilty of a Class 3 felony.
| 11 | | When the amount due is under $300, any retailer who fails | 12 | | to file a return, willfully fails or refuses to make any | 13 | | payment to the Department of the tax imposed by this Act, or | 14 | | files a fraudulent return, or any officer or agent of a | 15 | | corporation engaged in the retail business of selling tobacco | 16 | | products to purchasers of tobacco products for use and | 17 | | consumption located in this State who signs a fraudulent return | 18 | | filed on behalf of the corporation, or any accountant or other | 19 | | agent who knowingly enters false information on the return of | 20 | | any taxpayer under this Act is guilty of a Class A misdemeanor | 21 | | for a first offense and a Class 4 felony for each subsequent | 22 | | offense. | 23 | | When the amount due is $300 or more, any retailer who fails | 24 | | to file a return, willfully fails or refuses to make any | 25 | | payment to the Department of the tax imposed by this Act, or | 26 | | files a fraudulent return, or any officer or agent of a |
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| 1 | | corporation engaged in the retail business of selling tobacco | 2 | | products to purchasers of tobacco products for use and | 3 | | consumption located in this State who signs a fraudulent return | 4 | | filed on behalf of the corporation, or any accountant or other | 5 | | agent who knowingly enters false information on the return of | 6 | | any taxpayer under this Act is guilty of a Class 4 felony. | 7 | | Any person whose principal place of business is in this | 8 | | State and
who is charged with a violation under this Section | 9 | | shall be
tried in the county where his or her principal place | 10 | | of business is
located unless he or she asserts a right to be | 11 | | tried in another venue.
If the taxpayer does not have his or | 12 | | her principal place of business
in this State, however, the | 13 | | hearing must be held in Sangamon County unless
the taxpayer | 14 | | asserts a right to be tried in another venue.
| 15 | | Any taxpayer or agent of a taxpayer who with the intent to | 16 | | defraud
purports to make a payment due to the Department by | 17 | | issuing or delivering a
check or other order upon a real or | 18 | | fictitious depository for the payment
of money, knowing that it | 19 | | will not be paid by the depository, is
guilty of a deceptive | 20 | | practice in violation of Section 17-1 of the Criminal
Code of | 21 | | 1961.
| 22 | | A prosecution for a violation described in this Section may | 23 | | be commenced
within 3 years after the commission of the act | 24 | | constituting the violation.
| 25 | | (Source: P.A. 92-231, eff. 8-2-01.)
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| 1 | | (35 ILCS 143/10-53 new) | 2 | | Sec. 10-53. Acting as a retailer of tobacco products | 3 | | without a license. Any person who knowingly acts as a retailer | 4 | | of tobacco products in this State without first having obtained | 5 | | a license to do so in compliance with Section 10-21 of this Act | 6 | | or a license in compliance with Section 4g of the Cigarette Tax | 7 | | Act shall be guilty of a Class 4 felony. Each day such person | 8 | | operates as a retailer without a license constitutes a separate | 9 | | offense.
| 10 | | Section 99. Effective date. This Act takes effect July 1, | 11 | | 2014.
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| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | 20 ILCS 2505/2505-380 | was 20 ILCS 2505/39b47 | | 4 | | 35 ILCS 130/1 | from Ch. 120, par. 453.1 | | 5 | | 35 ILCS 130/3-10 | | | 6 | | 35 ILCS 130/4d | | | 7 | | 35 ILCS 130/4e | | | 8 | | 35 ILCS 130/4f | | | 9 | | 35 ILCS 130/4g new | | | 10 | | 35 ILCS 130/4h new | | | 11 | | 35 ILCS 130/6 | from Ch. 120, par. 453.6 | | 12 | | 35 ILCS 130/7 | from Ch. 120, par. 453.7 | | 13 | | 35 ILCS 130/8 | from Ch. 120, par. 453.8 | | 14 | | 35 ILCS 130/9g new | | | 15 | | 35 ILCS 130/10 | from Ch. 120, par. 453.10 | | 16 | | 35 ILCS 130/11c new | | | 17 | | 35 ILCS 130/23 | from Ch. 120, par. 453.23 | | 18 | | 35 ILCS 130/26 | from Ch. 120, par. 453.26 | | 19 | | 35 ILCS 135/1 | from Ch. 120, par. 453.31 | | 20 | | 35 ILCS 135/3-10 | | | 21 | | 35 ILCS 135/4d | | | 22 | | 35 ILCS 135/4e | | | 23 | | 35 ILCS 143/10-5 | | | 24 | | 35 ILCS 143/10-20 | | | 25 | | 35 ILCS 143/10-21 new | | |
| | | SB1447 | - 76 - | LRB098 06888 HLH 36945 b |
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| 1 | | 35 ILCS 143/10-22 new | | | 2 | | 35 ILCS 143/10-25 | | | 3 | | 35 ILCS 143/10-35 | | | 4 | | 35 ILCS 143/10-36 new | | | 5 | | 35 ILCS 143/10-50 | | | 6 | | 35 ILCS 143/10-53 new | |
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