Full Text of SB0474 100th General Assembly
SB0474sam001 100TH GENERAL ASSEMBLY | Sen. Cristina Castro Filed: 5/5/2017
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| 1 | | AMENDMENT TO SENATE BILL 474
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 474 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Use Tax Act is amended by changing Section | 5 | | 2 as follows:
| 6 | | (35 ILCS 105/2) (from Ch. 120, par. 439.2)
| 7 | | Sec. 2. Definitions. | 8 | | "Use" means the exercise by any person of any right or | 9 | | power over
tangible personal property incident to the ownership | 10 | | of that property,
except that it does not include the sale of | 11 | | such property in any form as
tangible personal property in the | 12 | | regular course of business to the extent
that such property is | 13 | | not first subjected to a use for which it was
purchased, and | 14 | | does not include the use of such property by its owner for
| 15 | | demonstration purposes: Provided that the property purchased | 16 | | is deemed to
be purchased for the purpose of resale, despite |
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| 1 | | first being used, to the
extent to which it is resold as an | 2 | | ingredient of an intentionally produced
product or by-product | 3 | | of manufacturing. "Use" does not mean the demonstration
use or | 4 | | interim use of tangible personal property by a retailer before | 5 | | he sells
that tangible personal property. For watercraft or | 6 | | aircraft, if the period of
demonstration use or interim use by | 7 | | the retailer exceeds 18 months,
the retailer
shall pay on the | 8 | | retailers' original cost price the tax imposed by this Act,
and | 9 | | no credit for that tax is permitted if the watercraft or | 10 | | aircraft is
subsequently sold by the retailer. "Use" does not | 11 | | mean the physical
incorporation of tangible personal property, | 12 | | to the extent not first subjected
to a use for which it was | 13 | | purchased, as an ingredient or constituent, into
other tangible | 14 | | personal property (a) which is sold in the regular course of
| 15 | | business or (b) which the person incorporating such ingredient | 16 | | or constituent
therein has undertaken at the time of such | 17 | | purchase to cause to be transported
in interstate commerce to | 18 | | destinations outside the State of Illinois: Provided
that the | 19 | | property purchased is deemed to be purchased for the purpose of
| 20 | | resale, despite first being used, to the extent to which it is | 21 | | resold as an
ingredient of an intentionally produced product or | 22 | | by-product of manufacturing.
| 23 | | "Watercraft" means a Class 2, Class 3, or Class 4 | 24 | | watercraft as defined in
Section 3-2 of the Boat Registration | 25 | | and Safety Act, a personal watercraft, or
any boat equipped | 26 | | with an inboard motor.
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| 1 | | "Purchase at retail" means the acquisition of the ownership | 2 | | of or title
to tangible personal property through a sale at | 3 | | retail.
| 4 | | "Purchaser" means anyone who, through a sale at retail, | 5 | | acquires the
ownership of tangible personal property for a | 6 | | valuable consideration.
| 7 | | "Sale at retail" means any transfer of the ownership of or | 8 | | title to
tangible personal property to a purchaser, for the | 9 | | purpose of use, and not
for the purpose of resale in any form | 10 | | as tangible personal property to the
extent not first subjected | 11 | | to a use for which it was purchased, for a
valuable | 12 | | consideration: Provided that the property purchased is deemed | 13 | | to
be purchased for the purpose of resale, despite first being | 14 | | used, to the
extent to which it is resold as an ingredient of | 15 | | an intentionally produced
product or by-product of | 16 | | manufacturing. For this purpose, slag produced as
an incident | 17 | | to manufacturing pig iron or steel and sold is considered to be
| 18 | | an intentionally produced by-product of manufacturing. "Sale | 19 | | at retail"
includes any such transfer made for resale unless | 20 | | made in compliance with
Section 2c of the Retailers' Occupation | 21 | | Tax Act, as incorporated by
reference into Section 12 of this | 22 | | Act. Transactions whereby the possession
of the property is | 23 | | transferred but the seller retains the title as security
for | 24 | | payment of the selling price are sales.
| 25 | | "Sale at retail" shall also be construed to include any | 26 | | Illinois
florist's sales transaction in which the purchase |
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| 1 | | order is received in
Illinois by a florist and the sale is for | 2 | | use or consumption, but the
Illinois florist has a florist in | 3 | | another state deliver the property to the
purchaser or the | 4 | | purchaser's donee in such other state.
| 5 | | Nonreusable tangible personal property that is used by | 6 | | persons engaged in
the business of operating a restaurant, | 7 | | cafeteria, or drive-in is a sale for
resale when it is | 8 | | transferred to customers in the ordinary course of business
as | 9 | | part of the sale of food or beverages and is used to deliver, | 10 | | package, or
consume food or beverages, regardless of where | 11 | | consumption of the food or
beverages occurs. Examples of those | 12 | | items include, but are not limited to
nonreusable, paper and | 13 | | plastic cups, plates, baskets, boxes, sleeves, buckets
or other | 14 | | containers, utensils, straws, placemats, napkins, doggie bags, | 15 | | and
wrapping or packaging
materials that are transferred to | 16 | | customers as part of the sale of food or
beverages in the | 17 | | ordinary course of business.
| 18 | | The purchase, employment and transfer of such tangible | 19 | | personal property
as newsprint and ink for the primary purpose | 20 | | of conveying news (with or
without other information) is not a | 21 | | purchase, use or sale of tangible
personal property.
| 22 | | "Selling price" means the consideration for a sale valued | 23 | | in money
whether received in money or otherwise, including | 24 | | cash, credits, property
other than as hereinafter provided, and | 25 | | services, but not including the
value of or credit given for | 26 | | traded-in tangible personal property where the
item that is |
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| 1 | | traded-in is of like kind and character as that which is being
| 2 | | sold, and shall be determined without any deduction on account | 3 | | of the cost
of the property sold, the cost of materials used, | 4 | | labor or service cost or
any other expense whatsoever, but does | 5 | | not include interest or finance
charges which appear as | 6 | | separate items on the bill of sale or sales
contract nor | 7 | | charges that are added to prices by sellers on account of the
| 8 | | seller's tax liability under the "Retailers' Occupation Tax | 9 | | Act", or on
account of the seller's duty to collect, from the | 10 | | purchaser, the tax that
is imposed by this Act, or, except as | 11 | | otherwise provided with respect to any cigarette tax imposed by | 12 | | a home rule unit, on account of the seller's tax liability | 13 | | under any local occupation tax administered by the Department, | 14 | | or, except as otherwise provided with respect to any cigarette | 15 | | tax imposed by a home rule unit on account of the seller's duty | 16 | | to collect, from the purchasers, the tax that is imposed under | 17 | | any local use tax administered by the Department. Effective | 18 | | December 1, 1985, "selling price"
shall include charges that | 19 | | are added to prices by sellers on account of the
seller's tax | 20 | | liability under the Cigarette Tax Act, on account of the | 21 | | seller's
duty to collect, from the purchaser, the tax imposed | 22 | | under the Cigarette Use
Tax Act, and on account of the seller's | 23 | | duty to collect, from the purchaser,
any cigarette tax imposed | 24 | | by a home rule unit.
| 25 | | Notwithstanding any law to the contrary, for any motor | 26 | | vehicle, as defined in Section 1-146 of the Vehicle Code, that |
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| 1 | | is sold on or after January 1, 2015 for the purpose of leasing | 2 | | the vehicle for a defined period that is longer than one year | 3 | | and (1) is a motor vehicle of the second division that: (A) is | 4 | | a self-contained motor vehicle designed or permanently | 5 | | converted to provide living quarters for recreational, | 6 | | camping, or travel use, with direct walk through access to the | 7 | | living quarters from the driver's seat; (B) is of the van | 8 | | configuration designed for the transportation of not less than | 9 | | 7 nor more than 16 passengers; or (C) has a gross vehicle | 10 | | weight rating of 8,000 pounds or less or (2) is a motor vehicle | 11 | | of the first division, "selling price" or "amount of sale" | 12 | | means the consideration received by the lessor pursuant to the | 13 | | lease contract, including amounts due at lease signing and all | 14 | | monthly or other regular payments charged over the term of the | 15 | | lease. Also included in the selling price is any amount | 16 | | received by the lessor from the lessee for the leased vehicle | 17 | | that is not calculated at the time the lease is executed, | 18 | | including, but not limited to, excess mileage charges and | 19 | | charges for excess wear and tear. For sales that occur in | 20 | | Illinois, with respect to any amount received by the lessor | 21 | | from the lessee for the leased vehicle that is not calculated | 22 | | at the time the lease is executed, the lessor who purchased the | 23 | | motor vehicle does not incur the tax imposed by the Use Tax Act | 24 | | on those amounts, and the retailer who makes the retail sale of | 25 | | the motor vehicle to the lessor is not required to collect the | 26 | | tax imposed by this Act or to pay the tax imposed by the |
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| 1 | | Retailers' Occupation Tax Act on those amounts. However, the | 2 | | lessor who purchased the motor vehicle assumes the liability | 3 | | for reporting and paying the tax on those amounts directly to | 4 | | the Department in the same form (Illinois Retailers' Occupation | 5 | | Tax, and local retailers' occupation taxes, if applicable) in | 6 | | which the retailer would have reported and paid such tax if the | 7 | | retailer had accounted for the tax to the Department. For | 8 | | amounts received by the lessor from the lessee that are not | 9 | | calculated at the time the lease is executed, the lessor must | 10 | | file the return and pay the tax to the Department by the due | 11 | | date otherwise required by this Act for returns other than | 12 | | transaction returns. If the retailer is entitled under this Act | 13 | | to a discount for collecting and remitting the tax imposed | 14 | | under this Act to the Department with respect to the sale of | 15 | | the motor vehicle to the lessor, then the right to the discount | 16 | | provided in this Act shall be transferred to the lessor with | 17 | | respect to the tax paid by the lessor for any amount received | 18 | | by the lessor from the lessee for the leased vehicle that is | 19 | | not calculated at the time the lease is executed; provided that | 20 | | the discount is only allowed if the return is timely filed and | 21 | | for amounts timely paid. The "selling price" of a motor vehicle | 22 | | that is sold on or after January 1, 2015 for the purpose of | 23 | | leasing for a defined period of longer than one year shall not | 24 | | be reduced by the value of or credit given for traded-in | 25 | | tangible personal property owned by the lessor, nor shall it be | 26 | | reduced by the value of or credit given for traded-in tangible |
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| 1 | | personal property owned by the lessee, regardless of whether | 2 | | the trade-in value thereof is assigned by the lessee to the | 3 | | lessor. In the case of a motor vehicle that is sold for the | 4 | | purpose of leasing for a defined period of longer than one | 5 | | year, the sale occurs at the time of the delivery of the | 6 | | vehicle, regardless of the due date of any lease payments. A | 7 | | lessor who incurs a Retailers' Occupation Tax liability on the | 8 | | sale of a motor vehicle coming off lease may not take a credit | 9 | | against that liability for the Use Tax the lessor paid upon the | 10 | | purchase of the motor vehicle (or for any tax the lessor paid | 11 | | with respect to any amount received by the lessor from the | 12 | | lessee for the leased vehicle that was not calculated at the | 13 | | time the lease was executed) if the selling price of the motor | 14 | | vehicle at the time of purchase was calculated using the | 15 | | definition of "selling price" as defined in this paragraph. | 16 | | Notwithstanding any other provision of this Act to the | 17 | | contrary, lessors shall file all returns and make all payments | 18 | | required under this paragraph to the Department by electronic | 19 | | means in the manner and form as required by the Department. | 20 | | This paragraph does not apply to leases of motor vehicles for | 21 | | which, at the time the lease is entered into, the term of the | 22 | | lease is not a defined period, including leases with a defined | 23 | | initial period with the option to continue the lease on a | 24 | | month-to-month or other basis beyond the initial defined | 25 | | period. | 26 | | The phrase "like kind and character" shall be liberally |
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| 1 | | construed
(including but not limited to any form of motor | 2 | | vehicle for any form of
motor vehicle, or any kind of farm or | 3 | | agricultural implement for any other
kind of farm or | 4 | | agricultural implement), while not including a kind of item
| 5 | | which, if sold at retail by that retailer, would be exempt from | 6 | | retailers'
occupation tax and use tax as an isolated or | 7 | | occasional sale.
| 8 | | "Department" means the Department of Revenue.
| 9 | | "Person" means any natural individual, firm, partnership, | 10 | | association,
joint stock company, joint adventure, public or | 11 | | private corporation, limited
liability company, or a
receiver, | 12 | | executor, trustee, guardian or other representative appointed
| 13 | | by order of any court.
| 14 | | "Retailer" means and includes every person engaged in the | 15 | | business of
making sales at retail as defined in this Section.
| 16 | | A person who holds himself or herself out as being engaged | 17 | | (or who habitually
engages) in selling tangible personal | 18 | | property at retail is a retailer
hereunder with respect to such | 19 | | sales (and not primarily in a service
occupation) | 20 | | notwithstanding the fact that such person designs and produces
| 21 | | such tangible personal property on special order for the | 22 | | purchaser and in
such a way as to render the property of value | 23 | | only to such purchaser, if
such tangible personal property so | 24 | | produced on special order serves
substantially the same | 25 | | function as stock or standard items of tangible
personal | 26 | | property that are sold at retail.
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| 1 | | A person whose activities are organized and conducted | 2 | | primarily as a
not-for-profit service enterprise, and who | 3 | | engages in selling tangible
personal property at retail | 4 | | (whether to the public or merely to members and
their guests) | 5 | | is a retailer with respect to such transactions, excepting
only | 6 | | a person organized and operated exclusively for charitable, | 7 | | religious
or educational purposes either (1), to the extent of | 8 | | sales by such person
to its members, students, patients or | 9 | | inmates of tangible personal property
to be used primarily for | 10 | | the purposes of such person, or (2), to the extent
of sales by | 11 | | such person of tangible personal property which is not sold or
| 12 | | offered for sale by persons organized for profit. The selling | 13 | | of school
books and school supplies by schools at retail to | 14 | | students is not
"primarily for the purposes of" the school | 15 | | which does such selling. This
paragraph does not apply to nor | 16 | | subject to taxation occasional dinners,
social or similar | 17 | | activities of a person organized and operated exclusively
for | 18 | | charitable, religious or educational purposes, whether or not | 19 | | such
activities are open to the public.
| 20 | | A person who is the recipient of a grant or contract under | 21 | | Title VII of
the Older Americans Act of 1965 (P.L. 92-258) and | 22 | | serves meals to
participants in the federal Nutrition Program | 23 | | for the Elderly in return for
contributions established in | 24 | | amount by the individual participant pursuant
to a schedule of | 25 | | suggested fees as provided for in the federal Act is not a
| 26 | | retailer under this Act with respect to such transactions.
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| 1 | | Persons who engage in the business of transferring tangible | 2 | | personal
property upon the redemption of trading stamps are | 3 | | retailers hereunder when
engaged in such business.
| 4 | | The isolated or occasional sale of tangible personal | 5 | | property at retail
by a person who does not hold himself out as | 6 | | being engaged (or who does not
habitually engage) in selling | 7 | | such tangible personal property at retail or
a sale through a | 8 | | bulk vending machine does not make such person a retailer
| 9 | | hereunder. However, any person who is engaged in a business | 10 | | which is not
subject to the tax imposed by the "Retailers' | 11 | | Occupation Tax Act" because
of involving the sale of or a | 12 | | contract to sell real estate or a
construction contract to | 13 | | improve real estate, but who, in the course of
conducting such | 14 | | business, transfers tangible personal property to users or
| 15 | | consumers in the finished form in which it was purchased, and | 16 | | which does
not become real estate, under any provision of a | 17 | | construction contract or
real estate sale or real estate sales | 18 | | agreement entered into with some
other person arising out of or | 19 | | because of such nontaxable business, is a
retailer to the | 20 | | extent of the value of the tangible personal property so
| 21 | | transferred. If, in such transaction, a separate charge is made | 22 | | for the
tangible personal property so transferred, the value of | 23 | | such property, for
the purposes of this Act, is the amount so | 24 | | separately charged, but not less
than the cost of such property | 25 | | to the transferor; if no separate charge is
made, the value of | 26 | | such property, for the purposes of this Act, is the cost
to the |
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| 1 | | transferor of such tangible personal property.
| 2 | | "Retailer maintaining a place of business in this State", | 3 | | or any like
term, means and includes any of the following | 4 | | retailers:
| 5 | | (1) 1. A retailer having or maintaining within this | 6 | | State, directly or by
a subsidiary, an office, distribution | 7 | | house, sales house, warehouse or other
place of business, | 8 | | or any agent or other representative operating within this
| 9 | | State under the authority of the retailer or its | 10 | | subsidiary, irrespective of
whether such place of business | 11 | | or agent or other representative is located here
| 12 | | permanently or temporarily, or whether such retailer or | 13 | | subsidiary is licensed
to do business in this State. | 14 | | However, the ownership of property that is
located at the | 15 | | premises of a printer with which the retailer has | 16 | | contracted for
printing and that consists of the final | 17 | | printed product, property that becomes
a part of the final | 18 | | printed product, or copy from which the printed product is
| 19 | | produced shall not result in the retailer being deemed to | 20 | | have or maintain an
office, distribution house, sales | 21 | | house, warehouse, or other place of business
within this | 22 | | State. | 23 | | (1.1) 1.1. A retailer having a contract with a person | 24 | | located in this State under which the person, for a | 25 | | commission or other consideration based upon the sale of | 26 | | tangible personal property by the retailer, directly or |
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| 1 | | indirectly refers potential customers to the retailer by | 2 | | providing to the potential customers a promotional code or | 3 | | other mechanism that allows the retailer to track purchases | 4 | | referred by such persons. Examples of mechanisms that allow | 5 | | the retailer to track purchases referred by such persons | 6 | | include but are not limited to the use of a link on the | 7 | | person's Internet website, promotional codes distributed | 8 | | through the person's hand-delivered or mailed material, | 9 | | and promotional codes distributed by the person through | 10 | | radio or other broadcast media. The provisions of this | 11 | | paragraph (1.1) 1.1 shall apply only if the cumulative | 12 | | gross receipts from sales of tangible personal property by | 13 | | the retailer to customers who are referred to the retailer | 14 | | by all persons in this State under such contracts exceed | 15 | | $10,000 during the preceding 4 quarterly periods ending on | 16 | | the last day of March, June, September, and December. A | 17 | | retailer meeting the requirements of this paragraph (1.1) | 18 | | 1.1 shall be presumed to be maintaining a place of business | 19 | | in this State but may rebut this presumption by submitting | 20 | | proof that the referrals or other activities pursued within | 21 | | this State by such persons were not sufficient to meet the | 22 | | nexus standards of the United States Constitution during | 23 | | the preceding 4 quarterly periods. | 24 | | (1.2) 1.2. Beginning July 1, 2011, a retailer having a | 25 | | contract with a person located in this State under which: | 26 | | (A) A. the retailer sells the same or substantially |
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| 1 | | similar line of products as the person located in this | 2 | | State and does so using an identical or substantially | 3 | | similar name, trade name, or trademark as the person | 4 | | located in this State; and | 5 | | (B) B. the retailer provides a commission or other | 6 | | consideration to the person located in this State based | 7 | | upon the sale of tangible personal property by the | 8 | | retailer. | 9 | | The provisions of this paragraph (1.2) 1.2 shall apply only | 10 | | if the cumulative gross receipts from sales of tangible | 11 | | personal property by the retailer to customers in this | 12 | | State under all such contracts exceed $10,000 during the | 13 | | preceding 4 quarterly periods ending on the last day of | 14 | | March, June, September, and December.
| 15 | | (2) 2. A retailer soliciting orders for tangible | 16 | | personal property by
means of a telecommunication or | 17 | | television shopping system (which utilizes toll
free | 18 | | numbers) which is intended by the retailer to be broadcast | 19 | | by cable
television or other means of broadcasting, to | 20 | | consumers located in this State.
| 21 | | (3) 3. A retailer, pursuant to a contract with a | 22 | | broadcaster or publisher
located in this State, soliciting | 23 | | orders for tangible personal property by
means of | 24 | | advertising which is disseminated primarily to consumers | 25 | | located in
this State and only secondarily to bordering | 26 | | jurisdictions.
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| 1 | | (4) 4. A retailer soliciting orders for tangible | 2 | | personal property by mail
if the solicitations are | 3 | | substantial and recurring and if the retailer benefits
from | 4 | | any banking, financing, debt collection, | 5 | | telecommunication, or marketing
activities occurring in | 6 | | this State or benefits from the location in this State
of | 7 | | authorized installation, servicing, or repair facilities.
| 8 | | (5) 5. A retailer that is owned or controlled by the | 9 | | same interests that own
or control any retailer engaging in | 10 | | business in the same or similar line of
business in this | 11 | | State.
| 12 | | (6) 6. A retailer having a franchisee or licensee | 13 | | operating under its trade
name if the franchisee or | 14 | | licensee is required to collect the tax under this
Section.
| 15 | | (7) 7. A retailer, pursuant to a contract with a cable | 16 | | television operator
located in this State, soliciting | 17 | | orders for tangible personal property by
means of | 18 | | advertising which is transmitted or distributed over a | 19 | | cable
television system in this State.
| 20 | | (8) 8. A retailer engaging in activities in Illinois, | 21 | | which activities in
the state in which the retail business | 22 | | engaging in such activities is located
would constitute | 23 | | maintaining a place of business in that state.
| 24 | | (9) Beginning January 1, 2018, a retailer making sales | 25 | | of tangible personal property to purchasers in Illinois | 26 | | from outside of Illinois if: |
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| 1 | | (A) the cumulative gross receipts from sales of | 2 | | tangible personal property to purchasers in Illinois | 3 | | are $150,000 or more; or | 4 | | (B) the retailer enters into 200 or more separate | 5 | | transactions for the sale of tangible personal | 6 | | property to purchasers in Illinois. | 7 | | The retailer shall determine on a quarterly basis, | 8 | | ending on the last day of March, June, September, and | 9 | | December, whether he or she meets the criteria of either | 10 | | (A) or (B) of this paragraph (9) for the preceding 12-month | 11 | | period. If the retailer meets the criteria of either (A) or | 12 | | (B) for a 12-month period, he or she is considered a | 13 | | retailer maintaining a place of business in this State and | 14 | | is required to collect and remit the tax imposed under this | 15 | | Act and file returns for one year. At the end of that | 16 | | one-year period, the retailer shall determine whether the | 17 | | retailer met the criteria of either (A) or (B) during the | 18 | | preceding 12-month period. If the retailer met the criteria | 19 | | in either (A) or (B) for the preceding 12-month period, he | 20 | | or she is considered a retailer maintaining a place of | 21 | | business in this State and is required to collect and remit | 22 | | the tax imposed under this Act and file returns for the | 23 | | subsequent year. If at the end of a one-year period a | 24 | | retailer that was required to collect and remit the tax | 25 | | imposed under this Act determines that he or she did not | 26 | | meet the criteria in either (A) or (B) during the preceding |
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| 1 | | 12-month period, the retailer shall subsequently determine | 2 | | on a quarterly basis, ending on the last day of March, | 3 | | June, September, and December, whether he or she meets the | 4 | | criteria of either (A) or (B) for the preceding 12-month | 5 | | period. | 6 | | "Bulk vending machine" means a vending machine,
containing | 7 | | unsorted confections, nuts, toys, or other items designed
| 8 | | primarily to be used or played with by children
which, when a | 9 | | coin or coins of a denomination not larger than $0.50 are | 10 | | inserted, are dispensed in equal portions, at random and
| 11 | | without selection by the customer.
| 12 | | (Source: P.A. 98-628, eff. 1-1-15; 98-1080, eff. 8-26-14; | 13 | | 98-1089, eff. 1-1-15; 99-78, eff. 7-20-15.)
| 14 | | Section 10. The Service Use Tax Act is amended by changing | 15 | | Section 2 as follows:
| 16 | | (35 ILCS 110/2) (from Ch. 120, par. 439.32)
| 17 | | Sec. 2. Definitions. | 18 | | "Use" means the exercise by any person of any right or | 19 | | power
over tangible personal property incident to the ownership | 20 | | of that
property, but does not include the sale or use for | 21 | | demonstration by him
of that property in any form as tangible | 22 | | personal property in the
regular course of business.
"Use" does | 23 | | not mean the interim
use of
tangible personal property nor the | 24 | | physical incorporation of tangible
personal property, as an |
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| 1 | | ingredient or constituent, into other tangible
personal | 2 | | property, (a) which is sold in the regular course of business
| 3 | | or (b) which the person incorporating such ingredient or | 4 | | constituent
therein has undertaken at the time of such purchase | 5 | | to cause to be
transported in interstate commerce to | 6 | | destinations outside the State of
Illinois.
| 7 | | "Purchased from a serviceman" means the acquisition of the | 8 | | ownership
of, or title to, tangible personal property through a | 9 | | sale of service.
| 10 | | "Purchaser" means any person who, through a sale of | 11 | | service, acquires
the ownership of, or title to, any tangible | 12 | | personal property.
| 13 | | "Cost price" means the consideration paid by the serviceman | 14 | | for a
purchase valued in money, whether paid in money or | 15 | | otherwise, including
cash, credits and services, and shall be | 16 | | determined without any
deduction on account of the supplier's | 17 | | cost of the property sold or on
account of any other expense | 18 | | incurred by the supplier. When a serviceman
contracts out part | 19 | | or all of the services required in his sale of service,
it | 20 | | shall be presumed that the cost price to the serviceman of the | 21 | | property
transferred to him or her by his or her subcontractor | 22 | | is equal to 50% of
the subcontractor's charges to the | 23 | | serviceman in the absence of proof of
the consideration paid by | 24 | | the subcontractor for the purchase of such property.
| 25 | | "Selling price" means the consideration for a sale valued | 26 | | in money
whether received in money or otherwise, including |
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| 1 | | cash, credits and
service, and shall be determined without any | 2 | | deduction on account of the
serviceman's cost of the property | 3 | | sold, the cost of materials used,
labor or service cost or any | 4 | | other expense whatsoever, but does not
include interest or | 5 | | finance charges which appear as separate items on
the bill of | 6 | | sale or sales contract nor charges that are added to prices
by | 7 | | sellers on account of the seller's duty to collect, from the
| 8 | | purchaser, the tax that is imposed by this Act.
| 9 | | "Department" means the Department of Revenue.
| 10 | | "Person" means any natural individual, firm, partnership,
| 11 | | association, joint stock company, joint venture, public or | 12 | | private
corporation, limited liability company, and any | 13 | | receiver, executor, trustee,
guardian or other representative | 14 | | appointed by order of any court.
| 15 | | "Sale of service" means any transaction except:
| 16 | | (1) a retail sale of tangible personal property taxable | 17 | | under the
Retailers' Occupation Tax Act or under the Use | 18 | | Tax Act.
| 19 | | (2) a sale of tangible personal property for the | 20 | | purpose of resale
made in compliance with Section 2c of the | 21 | | Retailers' Occupation Tax Act.
| 22 | | (3) except as hereinafter provided, a sale or transfer | 23 | | of tangible
personal property as an incident to the | 24 | | rendering of service for or by
any governmental body, or | 25 | | for or by any corporation, society,
association, | 26 | | foundation or institution organized and operated
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| 1 | | exclusively for charitable, religious or educational | 2 | | purposes or any
not-for-profit corporation, society, | 3 | | association, foundation,
institution or organization which | 4 | | has no compensated officers or
employees and which is | 5 | | organized and operated primarily for the
recreation of | 6 | | persons 55 years of age or older. A limited liability | 7 | | company
may qualify for the exemption under this paragraph | 8 | | only if the limited
liability company is organized and | 9 | | operated exclusively for educational
purposes.
| 10 | | (4) a sale or transfer of tangible personal
property as | 11 | | an incident to the
rendering of service for interstate | 12 | | carriers for hire for use as rolling stock
moving in | 13 | | interstate commerce or by lessors under a lease of one year | 14 | | or
longer, executed or in effect at the time of purchase of | 15 | | personal property, to
interstate carriers for hire for use | 16 | | as rolling stock moving in interstate
commerce so long as | 17 | | so used by such interstate carriers for hire, and equipment
| 18 | | operated by a telecommunications provider, licensed as a | 19 | | common carrier by the
Federal Communications Commission, | 20 | | which is permanently installed in or affixed
to aircraft | 21 | | moving in interstate commerce.
| 22 | | (4a) a sale or transfer of tangible personal
property | 23 | | as an incident
to the rendering of service for owners, | 24 | | lessors, or shippers of tangible
personal property which is | 25 | | utilized by interstate carriers for hire for
use as rolling | 26 | | stock moving in interstate commerce so long as so used by
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| 1 | | interstate carriers for hire, and equipment operated by a
| 2 | | telecommunications provider, licensed as a common carrier | 3 | | by the Federal
Communications Commission, which is | 4 | | permanently installed in or affixed to
aircraft moving in | 5 | | interstate commerce.
| 6 | | (4a-5) on and after July 1, 2003 and through June 30, | 7 | | 2004, a sale or transfer of a motor vehicle
of
the
second | 8 | | division with a gross vehicle weight in excess of 8,000 | 9 | | pounds as an
incident to the rendering of service if that | 10 | | motor
vehicle is subject
to the commercial distribution fee | 11 | | imposed under Section 3-815.1 of the
Illinois Vehicle
Code. | 12 | | Beginning on July 1, 2004 and through June 30, 2005, the | 13 | | use in this State of motor vehicles of the second division: | 14 | | (i) with a gross vehicle weight rating in excess of 8,000 | 15 | | pounds; (ii) that are subject to the commercial | 16 | | distribution fee imposed under Section 3-815.1 of the | 17 | | Illinois Vehicle Code; and (iii) that are primarily used | 18 | | for commercial purposes. Through June 30, 2005, this
| 19 | | exemption applies to repair and replacement parts added | 20 | | after the
initial
purchase of such a motor vehicle if that | 21 | | motor vehicle is used in a manner that
would
qualify for | 22 | | the rolling stock exemption otherwise provided for in this | 23 | | Act. For purposes of this paragraph, "used for commercial | 24 | | purposes" means the transportation of persons or property | 25 | | in furtherance of any commercial or industrial enterprise | 26 | | whether for-hire or not.
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| 1 | | (5) a sale or transfer of machinery and equipment used | 2 | | primarily in the
process of the manufacturing or | 3 | | assembling, either in an existing, an expanded
or a new | 4 | | manufacturing facility, of tangible personal property for | 5 | | wholesale or
retail sale or lease, whether such sale or | 6 | | lease is made directly by the
manufacturer or by some other | 7 | | person, whether the materials used in the process
are owned | 8 | | by the manufacturer or some other person, or whether such | 9 | | sale or
lease is made apart from or as an incident to the | 10 | | seller's engaging in a
service occupation and the | 11 | | applicable tax is a Service Use Tax or Service
Occupation | 12 | | Tax, rather than Use Tax or Retailers' Occupation Tax. The | 13 | | exemption provided by this paragraph (5) does not include | 14 | | machinery and equipment used in (i) the generation of | 15 | | electricity for wholesale or retail sale; (ii) the | 16 | | generation or treatment of natural or artificial gas for | 17 | | wholesale or retail sale that is delivered to customers | 18 | | through pipes, pipelines, or mains; or (iii) the treatment | 19 | | of water for wholesale or retail sale that is delivered to | 20 | | customers through pipes, pipelines, or mains. The | 21 | | provisions of this amendatory Act of the 98th General | 22 | | Assembly are declaratory of existing law as to the meaning | 23 | | and scope of this exemption.
| 24 | | (5a) the repairing, reconditioning or remodeling, for | 25 | | a
common carrier by rail, of tangible personal property | 26 | | which belongs to such
carrier for hire, and as to which |
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| 1 | | such carrier receives the physical possession
of the | 2 | | repaired, reconditioned or remodeled item of tangible | 3 | | personal property
in Illinois, and which such carrier | 4 | | transports, or shares with another common
carrier in the | 5 | | transportation of such property, out of Illinois on a | 6 | | standard
uniform bill of lading showing the person who | 7 | | repaired, reconditioned or
remodeled the property to a | 8 | | destination outside Illinois, for use outside
Illinois.
| 9 | | (5b) a sale or transfer of tangible personal property | 10 | | which is produced by
the seller thereof on special order in | 11 | | such a way as to have made the
applicable tax the Service | 12 | | Occupation Tax or the Service Use Tax, rather than
the | 13 | | Retailers' Occupation Tax or the Use Tax, for an interstate | 14 | | carrier by rail
which receives the physical possession of | 15 | | such property in Illinois, and which
transports such | 16 | | property, or shares with another common carrier in the
| 17 | | transportation of such property, out of Illinois on a | 18 | | standard uniform bill of
lading showing the seller of the | 19 | | property as the shipper or consignor of such
property to a | 20 | | destination outside Illinois, for use outside Illinois.
| 21 | | (6) until July 1, 2003, a sale or transfer of | 22 | | distillation machinery
and equipment, sold
as a unit or kit | 23 | | and assembled or installed by the retailer, which
machinery | 24 | | and equipment is certified by the user to be used only for | 25 | | the
production of ethyl alcohol that will be used for | 26 | | consumption as motor fuel
or as a component of motor fuel |
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| 1 | | for the personal use of such user and not
subject to sale | 2 | | or resale.
| 3 | | (7) at the election of any serviceman not required to | 4 | | be
otherwise registered as a retailer under Section 2a of | 5 | | the Retailers'
Occupation Tax Act, made for each fiscal | 6 | | year sales
of service in which the aggregate annual cost | 7 | | price of tangible
personal property transferred as an | 8 | | incident to the sales of service is
less than 35%, or 75% | 9 | | in the case of servicemen transferring prescription
drugs | 10 | | or servicemen engaged in graphic arts production, of the | 11 | | aggregate
annual total gross receipts from all sales of | 12 | | service. The purchase of
such tangible personal property by | 13 | | the serviceman shall be subject to tax
under the Retailers' | 14 | | Occupation Tax Act and the Use Tax Act.
However, if a
| 15 | | primary serviceman who has made the election described in | 16 | | this paragraph
subcontracts service work to a secondary | 17 | | serviceman who has also made the
election described in this | 18 | | paragraph, the primary serviceman does not
incur a Use Tax | 19 | | liability if the secondary serviceman (i) has paid or will | 20 | | pay
Use
Tax on his or her cost price of any tangible | 21 | | personal property transferred
to the primary serviceman | 22 | | and (ii) certifies that fact in writing to the
primary
| 23 | | serviceman.
| 24 | | Tangible personal property transferred incident to the | 25 | | completion of a
maintenance agreement is exempt from the tax | 26 | | imposed pursuant to this Act.
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| 1 | | Exemption (5) also includes machinery and equipment used in | 2 | | the general
maintenance or repair of such exempt machinery and | 3 | | equipment or for in-house
manufacture of exempt machinery and | 4 | | equipment. The machinery and equipment exemption does not | 5 | | include machinery and equipment used in (i) the generation of | 6 | | electricity for wholesale or retail sale; (ii) the generation | 7 | | or treatment of natural or artificial gas for wholesale or | 8 | | retail sale that is delivered to customers through pipes, | 9 | | pipelines, or mains; or (iii) the treatment of water for | 10 | | wholesale or retail sale that is delivered to customers through | 11 | | pipes, pipelines, or mains. The provisions of this amendatory | 12 | | Act of the 98th General Assembly are declaratory of existing | 13 | | law as to the meaning and scope of this exemption. For the | 14 | | purposes of exemption
(5), each of these terms shall have the | 15 | | following meanings: (1) "manufacturing
process" shall mean the | 16 | | production of any article of tangible personal
property, | 17 | | whether such article is a finished product or an article for | 18 | | use in
the process of manufacturing or assembling a different | 19 | | article of tangible
personal property, by procedures commonly | 20 | | regarded as manufacturing,
processing, fabricating, or | 21 | | refining which changes some existing
material or materials into | 22 | | a material with a different form, use or
name. In relation to a | 23 | | recognized integrated business composed of a
series of | 24 | | operations which collectively constitute manufacturing, or
| 25 | | individually constitute manufacturing operations, the | 26 | | manufacturing
process shall be deemed to commence with the |
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| 1 | | first operation or stage of
production in the series, and shall | 2 | | not be deemed to end until the
completion of the final product | 3 | | in the last operation or stage of
production in the series; and | 4 | | further, for purposes of exemption (5),
photoprocessing is | 5 | | deemed to be a manufacturing process of tangible
personal | 6 | | property for wholesale or retail sale; (2) "assembling process" | 7 | | shall
mean the production of any article of tangible personal | 8 | | property, whether such
article is a finished product or an | 9 | | article for use in the process of
manufacturing or assembling a | 10 | | different article of tangible personal
property, by the | 11 | | combination of existing materials in a manner commonly
regarded | 12 | | as assembling which results in a material of a different form,
| 13 | | use or name; (3) "machinery" shall mean major mechanical | 14 | | machines or
major components of such machines contributing to a | 15 | | manufacturing or
assembling process; and (4) "equipment" shall | 16 | | include any independent
device or tool separate from any | 17 | | machinery but essential to an
integrated manufacturing or | 18 | | assembly process; including computers
used primarily in a | 19 | | manufacturer's computer
assisted design, computer assisted | 20 | | manufacturing (CAD/CAM) system;
or any subunit or assembly | 21 | | comprising a component of any machinery or
auxiliary, adjunct | 22 | | or attachment parts of machinery, such as tools, dies,
jigs, | 23 | | fixtures, patterns and molds; or any parts which require | 24 | | periodic
replacement in the course of normal operation; but | 25 | | shall not include hand
tools.
Equipment includes chemicals or | 26 | | chemicals acting as catalysts but only if the
chemicals or |
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| 1 | | chemicals acting as catalysts effect a direct and immediate | 2 | | change
upon a
product being manufactured or assembled for | 3 | | wholesale or retail sale or
lease.
The purchaser of such | 4 | | machinery and equipment who has an active
resale registration | 5 | | number shall furnish such number to the seller at the
time of | 6 | | purchase. The user of such machinery and equipment and tools
| 7 | | without an active resale registration number shall prepare a | 8 | | certificate of
exemption for each transaction stating facts | 9 | | establishing the exemption for
that transaction, which | 10 | | certificate shall be available to the Department
for inspection | 11 | | or audit. The Department shall prescribe the form of the
| 12 | | certificate.
| 13 | | Any informal rulings, opinions or letters issued by the | 14 | | Department in
response to an inquiry or request for any opinion | 15 | | from any person
regarding the coverage and applicability of | 16 | | exemption (5) to specific
devices shall be published, | 17 | | maintained as a public record, and made
available for public | 18 | | inspection and copying. If the informal ruling,
opinion or | 19 | | letter contains trade secrets or other confidential
| 20 | | information, where possible the Department shall delete such | 21 | | information
prior to publication. Whenever such informal | 22 | | rulings, opinions, or
letters contain any policy of general | 23 | | applicability, the Department
shall formulate and adopt such | 24 | | policy as a rule in accordance with the
provisions of the | 25 | | Illinois Administrative Procedure Act.
| 26 | | On and after July 1, 1987, no entity otherwise eligible |
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| 1 | | under exemption
(3) of this Section shall make tax free | 2 | | purchases unless it has an active
exemption identification | 3 | | number issued by the Department.
| 4 | | The purchase, employment and transfer of such tangible | 5 | | personal
property as newsprint and ink for the primary purpose | 6 | | of conveying news
(with or without other information) is not a | 7 | | purchase, use or sale of
service or of tangible personal | 8 | | property within the meaning of this Act.
| 9 | | "Serviceman" means any person who is engaged in the | 10 | | occupation of
making sales of service.
| 11 | | "Sale at retail" means "sale at retail" as defined in the | 12 | | Retailers'
Occupation Tax Act.
| 13 | | "Supplier" means any person who makes sales of tangible | 14 | | personal
property to servicemen for the purpose of resale as an | 15 | | incident to a
sale of service.
| 16 | | "Serviceman maintaining a place of business in this State", | 17 | | or any
like term, means and includes any serviceman:
| 18 | | (1) 1. having or maintaining within this State, | 19 | | directly or by a
subsidiary, an office, distribution house, | 20 | | sales house, warehouse or
other place of business, or any | 21 | | agent or other representative operating
within this State | 22 | | under the authority of the serviceman or its
subsidiary, | 23 | | irrespective of whether such place of business or agent or
| 24 | | other representative is located here permanently or | 25 | | temporarily, or
whether such serviceman or subsidiary is | 26 | | licensed to do business in this
State; |
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| 1 | | (1.1) 1.1. having a contract with a person located in | 2 | | this State under which the person, for a commission or | 3 | | other consideration based on the sale of service by the | 4 | | serviceman, directly or indirectly refers potential | 5 | | customers to the serviceman by providing to the potential | 6 | | customers a promotional code or other mechanism that allows | 7 | | the serviceman to track purchases referred by such persons. | 8 | | Examples of mechanisms that allow the serviceman to track | 9 | | purchases referred by such persons include but are not | 10 | | limited to the use of a link on the person's Internet | 11 | | website, promotional codes distributed through the | 12 | | person's hand-delivered or mailed material, and | 13 | | promotional codes distributed by the person through radio | 14 | | or other broadcast media. The provisions of this paragraph | 15 | | (1.1) 1.1 shall apply only if the cumulative gross receipts | 16 | | from sales of service by the serviceman to customers who | 17 | | are referred to the serviceman by all persons in this State | 18 | | under such contracts exceed $10,000 during the preceding 4 | 19 | | quarterly periods ending on the last day of March, June, | 20 | | September, and December; a serviceman meeting the | 21 | | requirements of this paragraph (1.1) 1.1 shall be presumed | 22 | | to be maintaining a place of business in this State but may | 23 | | rebut this presumption by submitting proof that the | 24 | | referrals or other activities pursued within this State by | 25 | | such persons were not sufficient to meet the nexus | 26 | | standards of the United States Constitution during the |
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| 1 | | preceding 4 quarterly periods; | 2 | | (1.2) 1.2. beginning July 1, 2011, having a contract | 3 | | with a person located in this State under which: | 4 | | (A) A. the serviceman sells the same or | 5 | | substantially similar line of services as the person | 6 | | located in this State and does so using an identical or | 7 | | substantially similar name, trade name, or trademark | 8 | | as the person located in this State; and | 9 | | (B) B. the serviceman provides a commission or | 10 | | other consideration to the person located in this State | 11 | | based upon the sale of services by the serviceman. | 12 | | The provisions of this paragraph (1.2) 1.2 shall apply only | 13 | | if the cumulative gross receipts from sales of service by | 14 | | the serviceman to customers in this State under all such | 15 | | contracts exceed $10,000 during the preceding 4 quarterly | 16 | | periods ending on the last day of March, June, September, | 17 | | and December;
| 18 | | (2) 2. soliciting orders for tangible personal | 19 | | property by means of a
telecommunication or television | 20 | | shopping system (which utilizes toll free
numbers) which is | 21 | | intended by the retailer to be broadcast by cable
| 22 | | television or other means of broadcasting, to consumers | 23 | | located in this State;
| 24 | | (3) 3. pursuant to a contract with a broadcaster or | 25 | | publisher located in this
State, soliciting orders for | 26 | | tangible personal property by means of advertising
which is |
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| 1 | | disseminated primarily to consumers located in this State | 2 | | and only
secondarily to bordering jurisdictions;
| 3 | | (4) 4. soliciting orders for tangible personal | 4 | | property by mail if the
solicitations are substantial and | 5 | | recurring and if the retailer benefits
from any banking, | 6 | | financing, debt collection, telecommunication, or
| 7 | | marketing activities occurring in this State or benefits | 8 | | from the location
in this State of authorized installation, | 9 | | servicing, or repair facilities;
| 10 | | (5) 5. being owned or controlled by the same interests | 11 | | which own or
control any retailer engaging in business in | 12 | | the same or similar line of
business in this State;
| 13 | | (6) 6. having a franchisee or licensee operating under | 14 | | its trade name if
the franchisee or licensee is required to | 15 | | collect the tax under this Section;
| 16 | | (7) 7. pursuant to a contract with a cable television | 17 | | operator located in
this State, soliciting orders for | 18 | | tangible personal property by means of
advertising which is | 19 | | transmitted or distributed over a cable television
system | 20 | | in this State; or
| 21 | | (8) 8. engaging in activities in Illinois, which | 22 | | activities in the
state in which the supply business | 23 | | engaging in such activities is located
would constitute | 24 | | maintaining a place of business in that state ; or .
| 25 | | (9) beginning January 1, 2018, making sales of service | 26 | | to purchasers in Illinois from outside of Illinois if: |
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| 1 | | (A) the cumulative gross receipts from sales of | 2 | | service to purchasers in Illinois are $150,000 or more; | 3 | | or | 4 | | (B) the serviceman enters into 200 or more separate | 5 | | transactions for sales of service to purchasers in | 6 | | Illinois. | 7 | | The serviceman shall determine on a quarterly basis, | 8 | | ending on the last day of March, June, September, and | 9 | | December, whether he or she meets the criteria of either | 10 | | (A) or (B) of this paragraph (9) for the preceding 12-month | 11 | | period. If the serviceman meets the criteria of either (A) | 12 | | or (B) for a 12-month period, he or she is considered a | 13 | | serviceman maintaining a place of business in this State | 14 | | and is required to collect and remit the tax imposed under | 15 | | this Act and file returns for one year. At the end of that | 16 | | one-year period, the serviceman shall determine whether | 17 | | the serviceman met the criteria of either (A) or (B) during | 18 | | the preceding 12-month period. If the serviceman met the | 19 | | criteria in either (A) or (B) for the preceding 12-month | 20 | | period, he or she is considered a serviceman maintaining a | 21 | | place of business in this State and is required to collect | 22 | | and remit the tax imposed under this Act and file returns | 23 | | for the subsequent year. If at the end of a one-year period | 24 | | a serviceman that was required to collect and remit the tax | 25 | | imposed under this Act determines that he or she did not | 26 | | meet the criteria in either (A) or (B) during the preceding |
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| 1 | | 12-month period, the serviceman subsequently shall | 2 | | determine on a quarterly basis, ending on the last day of | 3 | | March, June, September, and December, whether he or she | 4 | | meets the criteria of either (A) or (B) for the preceding | 5 | | 12-month period. | 6 | | (Source: P.A. 98-583, eff. 1-1-14; 98-1089, eff. 1-1-15.)
| 7 | | Section 99. Effective date. This Act takes effect upon | 8 | | becoming law.".
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