Full Text of SB3141 100th General Assembly
SB3141ham001 100TH GENERAL ASSEMBLY | Rep. Michael J. Zalewski Filed: 5/22/2018
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| 1 | | AMENDMENT TO SENATE BILL 3141
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3141 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Use Tax Act is amended by changing Section | 5 | | 11 as follows:
| 6 | | (35 ILCS 105/11) (from Ch. 120, par. 439.11)
| 7 | | Sec. 11.
Every retailer required or authorized to collect | 8 | | taxes hereunder
and every person using in this State tangible | 9 | | personal property purchased
at retail from a retailer on or | 10 | | after the effective date hereof shall keep
such records, | 11 | | receipts, invoices and other pertinent books, documents,
| 12 | | memoranda and papers as the Department shall require, in such | 13 | | form as the
Department shall require. The Department may adopt | 14 | | rules that establish
requirements, including record forms and | 15 | | formats, for records required to be
kept and maintained by | 16 | | taxpayers. For purposes of this Section, "records" means
all |
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| 1 | | data maintained by the taxpayer, including data on paper, | 2 | | microfilm,
microfiche or any type of machine-sensible data | 3 | | compilation. For the purpose of
administering and enforcing the | 4 | | provisions hereof, the Department, or any
officer or employee | 5 | | of the Department designated, in writing, by the Director
| 6 | | thereof, may hold investigations and hearings concerning any | 7 | | matters covered
herein and may examine any books, papers, | 8 | | records, documents or memoranda of
any retailer or purchaser | 9 | | bearing upon the sales or purchases of tangible
personal | 10 | | property, the privilege of using which is taxed hereunder, and | 11 | | may
require the attendance of such person or any officer or | 12 | | employee of such
person, or of any person having knowledge of | 13 | | the facts, and may take testimony
and require proof for its | 14 | | information.
| 15 | | Any person who fails to keep books and records or fails to | 16 | | produce books and records for examination, as required by this | 17 | | Section and the rules adopted by the Department, is liable to | 18 | | pay to the Department, for deposit into the Tax Compliance and | 19 | | Administration Fund, a penalty of $1,000 for the first failure | 20 | | to keep books and records or produce books and records for | 21 | | examination and a penalty of $3,000 for each subsequent failure | 22 | | to keep books and records or produce books and records for | 23 | | examination as required by this Section and the rules adopted | 24 | | by the Department. The penalties imposed under this Section | 25 | | shall not apply if the taxpayer shows that he or she acted with | 26 | | ordinary business care and prudence. The Department may adopt |
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| 1 | | rules to administer the penalties under this Section. | 2 | | (Source: P.A. 88-480.)
| 3 | | Section 10. The Service Use Tax Act is amended by changing | 4 | | Section 11 as follows:
| 5 | | (35 ILCS 110/11) (from Ch. 120, par. 439.41)
| 6 | | Sec. 11.
Every serviceman required or authorized to collect | 7 | | taxes hereunder
and every user who is subject to the tax | 8 | | imposed by this Act shall keep
such records, receipts, invoices | 9 | | and other pertinent books, documents,
memoranda and papers as | 10 | | the Department shall require, in such form as the
Department | 11 | | shall require. The Department may adopt rules that establish
| 12 | | requirements, including record forms and formats, for records | 13 | | required to be
kept and maintained by taxpayers. For purposes | 14 | | of this Section, "records" means
all data maintained by the | 15 | | taxpayer, including data on paper, microfilm,
microfiche or any | 16 | | type of machine-sensible data compilation. For the purpose of
| 17 | | administering and enforcing the provisions hereof, the | 18 | | Department, or any
officer or employee of the Department | 19 | | designated, in writing, by the Director
thereof, may hold | 20 | | investigations and hearings concerning any matters covered
| 21 | | herein and not otherwise delegated to the Illinois Independent | 22 | | Tax Tribunal and may examine any relevant books, papers, | 23 | | records, documents or
memoranda of any serviceman or any | 24 | | taxable purchaser for use hereunder, and may
require the |
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| 1 | | attendance of such person or any officer or employee of such
| 2 | | person, or of any person having knowledge of the facts, and may | 3 | | take testimony
and require proof for its information.
| 4 | | Any person who fails to keep books and records or fails to | 5 | | produce books and records for examination, as required by this | 6 | | Section and the rules adopted by the Department, is liable to | 7 | | pay to the Department, for deposit into the Tax Compliance and | 8 | | Administration Fund, a penalty of $1,000 for the first failure | 9 | | to keep books and records or produce books and records for | 10 | | examination and a penalty of $3,000 for each subsequent failure | 11 | | to keep books and records or produce books and records for | 12 | | examination as required by this Section and the rules adopted | 13 | | by the Department. The penalties imposed under this Section | 14 | | shall not apply if the taxpayer shows that he or she acted with | 15 | | ordinary business care and prudence. The Department may adopt | 16 | | rules to administer the penalties under this Section. | 17 | | (Source: P.A. 97-1129, eff. 8-28-12.)
| 18 | | Section 15. The Service Occupation Tax Act is amended by | 19 | | changing Section 11 as follows:
| 20 | | (35 ILCS 115/11) (from Ch. 120, par. 439.111)
| 21 | | Sec. 11.
Every supplier required or authorized to collect | 22 | | taxes hereunder
and every serviceman making sales of service in | 23 | | this State on or after the
effective date hereof shall keep | 24 | | such records, receipts, invoices and other
pertinent books, |
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| 1 | | documents, memoranda and papers as the Department shall
| 2 | | require, in such form as the Department shall require.
The | 3 | | Department may adopt rules that establish requirements, | 4 | | including record
forms and formats, for records required to be | 5 | | kept and maintained by taxpayers.
For purposes of this Section, | 6 | | "records" means all data maintained by the
taxpayer, including | 7 | | data on paper, microfilm, microfiche or any type of
| 8 | | machine-sensible data compilation. For the purpose of
| 9 | | administering and enforcing the provisions hereof, the | 10 | | Department, or any
officer or employee of the Department | 11 | | designated, in writing, by the
Director thereof, may hold | 12 | | investigations and hearings not otherwise delegated to the | 13 | | Illinois Independent Tax Tribunal concerning any
matters | 14 | | covered herein and may examine any books, papers, records,
| 15 | | documents or memoranda of any supplier or serviceman bearing | 16 | | upon the sales
of services or the sales of tangible personal | 17 | | property to servicemen, and
may require the attendance of such | 18 | | person or any officer or employee of
such person, or of any | 19 | | person having knowledge of the facts, and may take
testimony | 20 | | and require proof for its information.
| 21 | | Any person who fails to keep books and records or fails to | 22 | | produce books and records for examination, as required by this | 23 | | Section and the rules adopted by the Department, is liable to | 24 | | pay to the Department, for deposit into the Tax Compliance and | 25 | | Administration Fund, a penalty of $1,000 for the first failure | 26 | | to keep books and records or produce books and records for |
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| 1 | | examination and a penalty of $3,000 for each subsequent failure | 2 | | to keep books and records or produce books and records for | 3 | | examination as required by this Section and the rules adopted | 4 | | by the Department. The penalties imposed under this Section | 5 | | shall not apply if the taxpayer shows that he or she acted with | 6 | | ordinary business care and prudence. The Department may adopt | 7 | | rules to administer the penalties under this Section. | 8 | | (Source: P.A. 97-1129, eff. 8-28-12.)
| 9 | | Section 20. The Retailers' Occupation Tax Act is amended by | 10 | | changing Section 7 as follows:
| 11 | | (35 ILCS 120/7) (from Ch. 120, par. 446)
| 12 | | Sec. 7.
Every person engaged in the business of selling | 13 | | tangible personal
property at retail in this State shall keep | 14 | | records and books of all sales
of tangible personal property, | 15 | | together with invoices, bills of lading,
sales records, copies | 16 | | of bills of sale, inventories prepared as of December
31 of | 17 | | each year or otherwise annually as has been the custom in the
| 18 | | specific trade and other pertinent papers and documents. Every | 19 | | person who
is engaged in the business of selling tangible | 20 | | personal property at retail
in this State and who, in | 21 | | connection with such business, also engages in
other activities | 22 | | (including, but not limited to, engaging in a service
| 23 | | occupation) shall keep such additional records and books of all | 24 | | such
activities as will accurately reflect the character and |
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| 1 | | scope of such
activities and the amount of receipts realized | 2 | | therefrom.
The Department may adopt rules that establish | 3 | | requirements, including record
forms and formats, for records | 4 | | required to be kept and maintained by taxpayers.
For purposes | 5 | | of this Section, "records" means all data maintained by the
| 6 | | taxpayer, including data on paper, microfilm, microfiche or any | 7 | | type of
machine-sensible data compilation.
| 8 | | All books and records and other papers and documents which | 9 | | are required
by this Act to be kept shall be kept in the | 10 | | English language
and shall, at all times during business hours | 11 | | of the day, be subject to
inspection by the Department or its | 12 | | duly authorized agents and employees.
| 13 | | To support deductions made on the tax return form, or | 14 | | authorized under
this Act, on account of receipts from isolated | 15 | | or occasional sales of
tangible personal property, on account | 16 | | of receipts from sales of tangible
personal property for | 17 | | resale, on account of receipts from sales to
governmental | 18 | | bodies or other exempted types of purchasers, on account of
| 19 | | receipts from sales of tangible personal property in interstate | 20 | | commerce,
and on account of receipts from any other kind of | 21 | | transaction that is not
taxable under this Act, entries in any | 22 | | books, records or other pertinent
papers or documents of the | 23 | | taxpayer in relation thereto shall be in detail
sufficient to | 24 | | show the name and address of the taxpayer's customer in each
| 25 | | such transaction, the character of every such transaction, the | 26 | | date of
every such transaction, the amount of receipts realized |
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| 1 | | from every such
transaction and such other information as may | 2 | | be necessary to establish the
non-taxable character of such | 3 | | transaction under this Act.
| 4 | | Except in the case of a sale to a purchaser who will always | 5 | | resell and
deliver the property to his customers outside | 6 | | Illinois, anyone claiming
that he has made a nontaxable sale | 7 | | for resale in some form as tangible
personal property shall | 8 | | also keep a record of the purchaser's registration
number or | 9 | | resale number with the Department.
| 10 | | It shall be presumed that all sales of tangible personal | 11 | | property are
subject to tax under this Act until the contrary | 12 | | is established, and the
burden of proving that a transaction is | 13 | | not taxable hereunder shall be upon
the person who would be | 14 | | required to remit the tax to the Department if such
transaction | 15 | | is taxable. In the course of any audit or investigation or
| 16 | | hearing by the Department with reference to a given taxpayer, | 17 | | if the
Department finds that the taxpayer lacks documentary | 18 | | evidence needed to
support the taxpayer's claim to exemption | 19 | | from tax hereunder, the
Department is authorized to notify the | 20 | | taxpayer in writing to produce such
evidence, and the taxpayer | 21 | | shall have 60 days subject to the right in the
Department to | 22 | | extend this period either on request for good cause shown or
on | 23 | | its own motion from the date when such notice is sent to the | 24 | | taxpayer by
certified or registered mail (or delivered to the | 25 | | taxpayer if the notice is
served personally) in which to obtain | 26 | | and produce such evidence for the
Department's inspection, |
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| 1 | | failing which the matter shall be closed, and the
transaction | 2 | | shall be conclusively presumed to be taxable hereunder.
| 3 | | Books and records and other papers reflecting gross | 4 | | receipts received
during any period with respect to which the | 5 | | Department is authorized to
issue notices of tax liability as | 6 | | provided by Sections 4 and 5 of this
Act shall be preserved | 7 | | until the expiration of such period unless the
Department, in | 8 | | writing, shall authorize their destruction or disposal prior
to | 9 | | such expiration.
| 10 | | Any person who fails to keep books and records or fails to | 11 | | produce books and records for examination, as required by this | 12 | | Section and the rules adopted by the Department, is liable to | 13 | | pay to the Department, for deposit into the Tax Compliance and | 14 | | Administration Fund, a penalty of $1,000 for the first failure | 15 | | to keep books and records or produce books and records for | 16 | | examination and a penalty of $3,000 for each subsequent failure | 17 | | to keep books and records or produce books and records for | 18 | | examination as required by this Section and the rules adopted | 19 | | by the Department. The penalties imposed under this Section | 20 | | shall not apply if the taxpayer shows that he or she acted with | 21 | | ordinary business care and prudence. The Department may adopt | 22 | | rules to administer the penalties under this Section. | 23 | | (Source: P.A. 88-480.)
| 24 | | Section 25. The Cigarette Tax Act is amended by changing | 25 | | Sections 12, 13, 14, 15, 18b, and 18c and by adding Sections |
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| 1 | | 13a, 15a, and 18d as follows:
| 2 | | (35 ILCS 130/12) (from Ch. 120, par. 453.12)
| 3 | | Sec. 12.
Every distributor or secondary distributor who is | 4 | | required to procure a license under this
Act and who purchases | 5 | | cigarettes for shipment into Illinois from a point
outside this | 6 | | State shall procure invoices in duplicate covering each such
| 7 | | shipment , shall make the invoices available for inspection upon | 8 | | demand by a duly authorized employee of the Department , and | 9 | | shall , if the Department so requires, furnish one copy of each | 10 | | such invoice to the Department
at the time of filing a return | 11 | | or a report required by this Act.
| 12 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 13 | | (35 ILCS 130/13) (from Ch. 120, par. 453.13)
| 14 | | Sec. 13.
Whenever any original package of cigarettes is | 15 | | found in the place
of business or in the possession of any | 16 | | person who is not a licensed
distributor under this Act without | 17 | | proper stamps affixed thereto, or an
authorized substitute | 18 | | therefor imprinted thereon, underneath the sealed
transparent | 19 | | wrapper of such original package, as required by this Act, the
| 20 | | prima facie presumption shall arise that such original package | 21 | | of
cigarettes is kept therein or is held by such person in | 22 | | violation of the
provisions of this Act. If a presumption is | 23 | | raised, the Department may, in addition to the penalties | 24 | | imposed by Sections 18b and 18c of this Act and any other civil |
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| 1 | | or criminal penalties provided for in this Act, assess tax, | 2 | | penalty, and interest on the original packages of cigarettes.
| 3 | | (Source: Laws 1953, p. 255.)
| 4 | | (35 ILCS 130/13a new) | 5 | | Sec. 13a. Contraband cigarettes. Whenever a retailer | 6 | | obtains original packages of cigarettes from an unlicensed | 7 | | in-state or out-of-state distributor or person, a prima facie | 8 | | presumption shall arise that such original packages of | 9 | | cigarettes are contraband and are possessed by such retailer or | 10 | | were possessed by such retailer in violation of the provisions | 11 | | of this Act and subject to the penalties imposed by Sections | 12 | | 18b and 18c of this Act. Invoices or other documents kept in | 13 | | the normal course of business in the possession of a retailer | 14 | | reflecting purchases of original packages of cigarettes from an | 15 | | unlicensed in-state or out-of-state distributor or person or | 16 | | invoices or other documents kept in the normal course of | 17 | | business obtained by the Department from an in-state or | 18 | | out-of-state distributor or person, are sufficient to raise the | 19 | | presumption that such original packages of cigarettes are | 20 | | contraband and are possessed, or were possessed, by such | 21 | | retailer in violation of the provisions of this Act and the | 22 | | retailer is subject to the penalties imposed by Sections 18b | 23 | | and 18c. If a presumption is raised, the Department may, in | 24 | | addition to the penalties imposed by Sections 18b and 18c and | 25 | | any other civil or criminal penalties provided for in this Act, |
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| 1 | | assess tax, penalty, and interest on the original packages of | 2 | | cigarettes.
| 3 | | (35 ILCS 130/14) (from Ch. 120, par. 453.14)
| 4 | | Sec. 14.
Any person required by this Act to keep records of | 5 | | any kind whatsoever,
who shall fail to keep the records so | 6 | | required or who shall falsify such
records, shall be guilty of | 7 | | a Class 4 felony. If a person fails to produce the records for | 8 | | inspection by the Department upon request, a prima facie | 9 | | presumption shall arise that the person has failed to keep the | 10 | | records so required. A person who is unable to rebut this | 11 | | presumption is in violation of this Act and is subject to the | 12 | | penalties provided in this Section.
| 13 | | (Source: P.A. 83-1428.)
| 14 | | (35 ILCS 130/15) (from Ch. 120, par. 453.15)
| 15 | | Sec. 15.
Any person who shall fail to safely maintain and | 16 | | preserve the records required
by Sections Section 11 , and | 17 | | Section 11a , 11b, and 11c of this Act for the period of 3 three | 18 | | years, as required therein,
in such manner as to insure | 19 | | permanency and accessibility for inspection by the
Department, | 20 | | shall be guilty of a business offense and may be fined up to
| 21 | | $5,000.
| 22 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 23 | | (35 ILCS 130/15a new) |
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| 1 | | Sec. 15a. Failure to keep or produce books and records. Any | 2 | | person who fails to keep books and records or fails to produce | 3 | | books and records for inspection, as required by Sections 11, | 4 | | 11a, 11b, and 11c of this Act, is liable to pay to the | 5 | | Department, for deposit in the Tax Compliance and | 6 | | Administration Fund, a penalty of $1,000 for the first failure | 7 | | to keep books and records or failure to produce books and | 8 | | records for inspection, as required by Sections 11, 11a, 11b, | 9 | | and 11c, and $3,000 for each subsequent failure to keep books | 10 | | and records or failure to produce books and records for | 11 | | inspection, as required by Sections 11, 11a, 11b, and 11c. The | 12 | | Department may adopt rules to administer the penalties under | 13 | | this Section.
| 14 | | (35 ILCS 130/18b) (from Ch. 120, par. 453.18b)
| 15 | | Sec. 18b. Possession of more than 100 original packages of | 16 | | contraband cigarettes; penalty. With the exception of licensed | 17 | | distributors and transporters, as defined in Section 9c of this | 18 | | Act, possessing unstamped original packages of cigarettes, and | 19 | | licensed distributors possessing original packages of | 20 | | cigarettes that bear a tax stamp of another state or taxing | 21 | | jurisdiction, anyone possessing
or having possessed contraband | 22 | | cigarettes contained in original packages is liable
to pay, to | 23 | | the Department for deposit in the Tax Compliance and | 24 | | Administration Fund, a penalty of
$25 for each such package of | 25 | | cigarettes in excess of 100 packages, unless reasonable cause |
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| 1 | | can be established by the person upon whom the penalty is | 2 | | imposed. This penalty is in addition to the taxes imposed by | 3 | | this Act. Reasonable cause shall be determined in each | 4 | | situation in accordance with rules adopted by the Department. | 5 | | The provisions of the Uniform Penalty and Interest Act do not | 6 | | apply to this Section.
| 7 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 8 | | (35 ILCS 130/18c)
| 9 | | Sec. 18c.
Possession of
not less than 10 and not
more than
| 10 | | 100 original packages of contraband cigarettes; penalty. With | 11 | | the exception of licensed distributors and transporters, as | 12 | | defined in Section 9c of this Act, possessing unstamped | 13 | | original packages of cigarettes, and licensed distributors | 14 | | possessing original packages of cigarettes that bear a tax | 15 | | stamp of another state or taxing jurisdiction,
anyone | 16 | | possessing or having possessed
not less than 10
and not more | 17 | | than 100 packages of
contraband cigarettes contained in | 18 | | original packages is
liable to pay to the Department, for | 19 | | deposit into the Tax Compliance and
Administration Fund, a | 20 | | penalty of $15 $10
for each such package of
cigarettes, unless | 21 | | reasonable cause can be established by the person upon whom
the | 22 | | penalty is imposed. Reasonable cause shall be determined in | 23 | | each situation
in accordance with rules adopted by the | 24 | | Department. The provisions of the Uniform Penalty and Interest | 25 | | Act do not apply to this Section.
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| 1 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 2 | | (35 ILCS 130/18d new) | 3 | | Sec. 18d. Cigarette package sizes; sale of individual or | 4 | | loose cigarettes prohibited. Cigarettes may only be sold in | 5 | | packages of 20 or 25 cigarettes. The sale of individual or | 6 | | loose cigarettes is prohibited. Any person who violates this | 7 | | Section of the Act is liable to pay to the Department, for | 8 | | deposit in the Tax Compliance and Administration Fund, a | 9 | | penalty of $1,000 for the first violation and $3,000 for any | 10 | | subsequent violation. Any person who violates this Section | 11 | | shall be guilty of a Class 4 felony. The Department may adopt | 12 | | rules to administer the penalties under this Section. | 13 | | Section 30. The Cigarette Use Tax Act is amended by | 14 | | changing Sections 12, 22, 23, 25a, and 25b and by adding | 15 | | Sections 8a, 23a, and 25c as follows: | 16 | | (35 ILCS 135/8a new) | 17 | | Sec. 8a. Contraband cigarettes. Whenever any person | 18 | | obtains original packages of cigarettes from an unlicensed | 19 | | in-state or out-of-state distributor or person, a prima facie | 20 | | presumption shall arise that such original packages of | 21 | | cigarettes are contraband and are possessed or were possessed | 22 | | by such person in violation of the provisions of this Act and | 23 | | subject to the penalties imposed by Sections 25a and 25b. |
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| 1 | | Invoices or other documents kept in the normal course of | 2 | | business in the possession of a person reflecting purchases of | 3 | | original packages of cigarettes from an unlicensed in-state or | 4 | | out-of-state distributor or person or invoices or other | 5 | | documents kept in the normal course of business obtained by the | 6 | | Department from an in-state or out-of-state distributor or | 7 | | person, are sufficient to raise the presumption that such | 8 | | original packages of cigarettes are contraband and are | 9 | | possessed, or were possessed, by such person in violation of | 10 | | the provisions of this Act and the person is subject to the | 11 | | penalties imposed by Sections 25a and 25b. If a presumption is | 12 | | raised, the Department may, in addition to the penalties | 13 | | imposed by Sections 25a and 25b and any other civil or criminal | 14 | | penalties provided for in this Act, assess tax, penalty, and | 15 | | interest on the original packages of cigarettes.
| 16 | | (35 ILCS 135/12) (from Ch. 120, par. 453.42)
| 17 | | Sec. 12. Declaration of possession of cigarettes on which | 18 | | tax not paid.
| 19 | | (a) When cigarettes are acquired for use in this State by a | 20 | | person
(including a distributor as well as any other person), | 21 | | who did not pay the
tax herein imposed to a distributor, the | 22 | | person, within 30 days after
acquiring the cigarettes, shall | 23 | | file with the Department a return
declaring the possession of | 24 | | the cigarettes and shall transmit with
the
return to the | 25 | | Department the tax imposed by this Act.
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| 1 | | (b) On receipt of the return and payment of the tax as | 2 | | required by
paragraph (a), the Department may furnish the | 3 | | person with a suitable tax stamp
to be
affixed to the package | 4 | | of cigarettes upon which the tax has been paid
if the | 5 | | Department determines that the cigarettes still exist.
| 6 | | (c) The return referred to in paragraph
(a) shall
contain | 7 | | the name and address of the person possessing the cigarettes
| 8 | | involved, the location of the cigarettes and the quantity, | 9 | | brand
name,
place, and date of the acquisition of the | 10 | | cigarettes.
| 11 | | (d) Nothing in this Section shall permit a secondary | 12 | | distributor to purchase unstamped original packages of | 13 | | cigarettes or to purchase original packages of cigarettes from | 14 | | a person other than a licensed distributor. | 15 | | (e) Any distributor who violates this Section is liable to | 16 | | pay to the Department, for deposit in the Tax Compliance and | 17 | | Administration Fund, a penalty of $1,000 for the first | 18 | | violation and $3,000 for any subsequent violation. The | 19 | | Department may adopt rules to administer the penalties under | 20 | | this Section. The Department may, in addition to the penalties | 21 | | imposed by this Section, and any other civil or criminal | 22 | | penalties provided for in this Act, assess tax, penalty, and | 23 | | interest on the original packages of cigarettes. | 24 | | (Source: P.A. 96-1027, eff. 7-12-10.)
| 25 | | (35 ILCS 135/22) (from Ch. 120, par. 453.52)
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| 1 | | Sec. 22.
Any person required by this Act to maintain or | 2 | | keep records of any kind whatsoever,
who shall fail to keep the | 3 | | records so required or who shall falsify such
records, shall be | 4 | | guilty of a Class 4 felony A misdemeanor . If a person fails to | 5 | | produce the records for inspection by the Department upon | 6 | | request, a prima facie presumption shall arise that the person | 7 | | has failed to keep the records so required. A person who is | 8 | | unable to rebut this presumption is in violation of this Act | 9 | | and is subject to the penalties provided in this Section.
| 10 | | This Section shall not apply if the violation in a | 11 | | particular case also
constitutes a criminal violation of the | 12 | | Cigarette Tax Act.
| 13 | | (Source: P.A. 77-2229 .)
| 14 | | (35 ILCS 135/23) (from Ch. 120, par. 453.53)
| 15 | | Sec. 23.
Any person who shall fail to safely preserve the | 16 | | records required
by Section 15 and Section 15a of this Act for | 17 | | the period of three (3) years, as required
therein, in such | 18 | | manner as to insure permanency and accessibility for
inspection | 19 | | by the Department, shall be guilty of a business offense and | 20 | | may
be fined up to $5,000 One Thousand Dollars ($1000) .
| 21 | | This Section shall not apply if the violation in a | 22 | | particular case also
constitutes a criminal violation of the | 23 | | Cigarette Tax Act.
| 24 | | (Source: P.A. 96-1027, eff. 7-12-10.)
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| 1 | | (35 ILCS 135/23a new) | 2 | | Sec. 23a. Failure to keep or produce books and records. Any | 3 | | person who fails to keep books and records or fails to produce | 4 | | books and records for inspection, as required by Sections 15 | 5 | | and 15a of this Act, is liable to pay to the Department, for | 6 | | deposit in the Tax Compliance and Administration Fund, a | 7 | | penalty of $1,000 for the first failure to keep books and | 8 | | records or failure to produce books and records for inspection, | 9 | | as required by Sections 15 and 15a, and $3,000 for each | 10 | | subsequent failure to keep books and records or failure to | 11 | | produce books and records for inspection, as required by | 12 | | Sections 15 and 15a. The Department may adopt rules to | 13 | | administer the penalties under this Section.
| 14 | | (35 ILCS 135/25a) (from Ch. 120, par. 453.55a)
| 15 | | Sec. 25a. Possession of more than 100 original packages of | 16 | | contraband cigarettes; penalty. With the exception of licensed | 17 | | distributors or transporters, as defined in Section 9c of the | 18 | | Cigarette Tax Act, possessing unstamped original packages of | 19 | | cigarettes, and licensed distributors possessing original | 20 | | packages of cigarettes that bear a tax stamp of another state | 21 | | or taxing jurisdiction, anyone possessing or having possessed
| 22 | | more than 100 packages of contraband cigarettes contained in | 23 | | original packages is liable
to pay, to the Department for | 24 | | deposit into the Tax Compliance and Administration Fund, a | 25 | | penalty of
$25 for each such package of cigarettes in excess of |
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| 1 | | 100 packages, unless reasonable cause can be established by the | 2 | | person upon whom the penalty is imposed. Reasonable cause shall | 3 | | be determined in each situation in accordance with rules | 4 | | adopted by the Department. The provisions of the Uniform | 5 | | Penalty and Interest Act do not apply to this Section.
| 6 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 7 | | (35 ILCS 135/25b)
| 8 | | Sec. 25b.
Possession of
not less than 10 and not
more than
| 9 | | 100 original packages not tax stamped or
improperly tax | 10 | | stamped; penalty. With the exception of licensed distributors | 11 | | and transporters, as defined in Section 9c of the Cigarette Tax | 12 | | Act, possessing unstamped packages of cigarettes, and licensed | 13 | | distributors possessing original packages of cigarettes that | 14 | | bear a tax stamp of another state or taxing jurisdiction,
| 15 | | anyone possessing or having possessed
not less than 10
and not | 16 | | more than 100 packages of
contraband cigarettes contained in | 17 | | original packages is
liable to pay to the Department, for | 18 | | deposit into the Tax Compliance and
Administration Fund, a | 19 | | penalty of $20
for each such package of
cigarettes, unless | 20 | | reasonable cause can be established by the person upon whom
the | 21 | | penalty is imposed. Reasonable cause shall be determined in | 22 | | each situation
in accordance with rules adopted by the | 23 | | Department. Any person who purchases and possesses a total of 9 | 24 | | or fewer original packages of unstamped cigarettes per month is | 25 | | exempt from the penalties of this Section. The provisions of |
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| 1 | | the Uniform Penalty and Interest Act do not apply to this | 2 | | Section.
| 3 | | (Source: P.A. 96-782, eff. 1-1-10.)
| 4 | | (35 ILCS 135/25c new) | 5 | | Sec. 25c. Cigarette package sizes; sale of individual or | 6 | | loose cigarettes prohibited. Cigarettes may only be sold in | 7 | | packages of 20 or 25 cigarettes. The sale of individual or | 8 | | loose cigarettes is prohibited. Any person who violates this | 9 | | Section is liable to pay to the Department, for deposit in the | 10 | | Tax Compliance and Administration Fund, a penalty of $1,000 for | 11 | | the first violation and $3,000 for any subsequent violation. | 12 | | Any person who violates this Section shall be guilty of a Class | 13 | | 4 felony. This Section shall not apply if the violation in a | 14 | | particular case also constitutes a violation of the Cigarette | 15 | | Tax Act. | 16 | | Section 35. The Tobacco Products Tax Act of 1995 is amended | 17 | | by changing Sections 10-25, 10-35, 10-37, 10-40, and 10-50 and | 18 | | by adding Sections 10-35a and 10-38 as follows:
| 19 | | (35 ILCS 143/10-25)
| 20 | | Sec. 10-25. License actions. | 21 | | (a) The Department may, after notice and a hearing,
revoke, | 22 | | cancel, or suspend the license of any distributor or retailer | 23 | | who violates any of
the provisions of this Act , fails to keep |
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| 1 | | books and records as required under this Act, fails to make | 2 | | books and records available for inspection upon demand by a | 3 | | duly authorized employee of the Department, or violates a rule | 4 | | or regulation of the Department for the administration and | 5 | | enforcement of this Act . The notice shall specify the alleged | 6 | | violation or
violations upon which the revocation, | 7 | | cancellation, or suspension proceeding is
based.
| 8 | | (b) The Department may revoke, cancel, or suspend the | 9 | | license of any
distributor for a violation of the Tobacco | 10 | | Product Manufacturers' Escrow
Enforcement Act as provided in | 11 | | Section 20 of that Act.
| 12 | | (c) If the retailer has a training program that facilitates | 13 | | compliance with minimum-age tobacco laws, the Department shall | 14 | | suspend for 3 days the license of that retailer for a fourth or | 15 | | subsequent violation of the Prevention of Tobacco Use by Minors | 16 | | and Sale and Distribution of Tobacco Products Act, as provided | 17 | | in subsection (a) of Section 2 of that Act. For the purposes of | 18 | | this Section, any violation of subsection (a) of Section 2 of | 19 | | the Prevention of Tobacco Use by Minors and Sale and | 20 | | Distribution of Tobacco Products Act occurring at the | 21 | | retailer's licensed location, during a 24-month period, shall | 22 | | be counted as a violation against the retailer. | 23 | | If the retailer does not have a training program that | 24 | | facilitates compliance with minimum-age tobacco laws, the | 25 | | Department shall suspend for 3 days the license of that | 26 | | retailer for a second violation of the Prevention of Tobacco |
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| 1 | | Use by Minors and Sale and Distribution of Tobacco Products | 2 | | Act, as provided in subsection (a-5) of Section 2 of that Act. | 3 | | If the retailer does not have a training program that | 4 | | facilitates compliance with minimum-age tobacco laws, the | 5 | | Department shall suspend for 7 days the license of that | 6 | | retailer for a third violation of the Prevention of Tobacco Use | 7 | | by Minors and Sale and Distribution of Tobacco Products Act, as | 8 | | provided in subsection (a-5) of Section 2 of that Act. | 9 | | If the retailer does not have a training program that | 10 | | facilitates compliance with minimum-age tobacco laws, the | 11 | | Department shall suspend for 30 days the license of a retailer | 12 | | for a fourth or subsequent violation of the Prevention of | 13 | | Tobacco Use by Minors and Sale and Distribution of Tobacco | 14 | | Products Act, as provided in subsection (a-5) of Section 2 of | 15 | | that Act. | 16 | | A training program that facilitates compliance with | 17 | | minimum-age tobacco laws must include at least the following | 18 | | elements: (i) it must explain that only individuals displaying | 19 | | valid identification demonstrating that they are 18 years of | 20 | | age or older shall be eligible to purchase cigarettes or | 21 | | tobacco products and (ii) it must explain where a clerk can | 22 | | check identification for a date of birth. The training may be | 23 | | conducted electronically. Each retailer that has a training | 24 | | program shall require each employee who completes the training | 25 | | program to sign a form attesting that the employee has received | 26 | | and completed tobacco training. The form shall be kept in the |
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| 1 | | employee's file and may be used to provide proof of training. | 2 | | (d) The Department may, by application to any circuit | 3 | | court, obtain an injunction
restraining any person who engages | 4 | | in business as a distributor of tobacco
products without a | 5 | | license (either because his or her license has been revoked,
| 6 | | canceled, or suspended or because of a failure to obtain a | 7 | | license in the first
instance) from engaging in that business | 8 | | until that person, as if that person
were a new applicant for a | 9 | | license, complies with all of the conditions,
restrictions, and | 10 | | requirements of Section 10-20 of this Act and qualifies for
and | 11 | | obtains a license. Refusal or neglect to obey the order of the | 12 | | court may
result in punishment for contempt.
| 13 | | (Source: P.A. 98-1055, eff. 1-1-16; 99-192, eff. 1-1-16 .)
| 14 | | (35 ILCS 143/10-35)
| 15 | | Sec. 10-35. Record keeping. | 16 | | (a) Every distributor, as defined in Section 10-5,
shall | 17 | | keep complete and accurate records of tobacco products held, | 18 | | purchased,
manufactured, brought in or caused to be brought in | 19 | | from without the State, and
tobacco products sold, or otherwise | 20 | | disposed of, and shall preserve and keep
all invoices, bills of | 21 | | lading, sales records, and copies of bills
of sale, the | 22 | | wholesale price for tobacco products sold or otherwise disposed
| 23 | | of, an inventory of tobacco products prepared as of December 31 | 24 | | of each year or
as of the last day of the distributor's fiscal | 25 | | year if he or she files federal
income tax returns on the basis |
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| 1 | | of a fiscal year, and other pertinent papers
and documents | 2 | | relating to the manufacture, purchase, sale, or disposition of
| 3 | | tobacco products. Every sales invoice issued by a licensed | 4 | | distributor to a retailer in this State shall contain the | 5 | | distributor's Tobacco Products License number unless the | 6 | | distributor has been granted a waiver by the Department in | 7 | | response to a written request in cases where (i) the | 8 | | distributor sells little cigars or other tobacco products only | 9 | | to licensed retailers that are wholly-owned by the distributor | 10 | | or owned by a wholly-owned subsidiary of the distributor; (ii) | 11 | | the licensed retailer obtains little cigars or other tobacco | 12 | | products only from the distributor requesting the waiver; and | 13 | | (iii) the distributor affixes the tax stamps to the original | 14 | | packages of little cigars or has or will pay the tax on the | 15 | | other tobacco products sold to the licensed retailer. The | 16 | | distributor shall file a written request with the Department, | 17 | | and, if the Department determines that the distributor meets | 18 | | the conditions for a waiver, the Department shall grant the | 19 | | waiver. | 20 | | (b) Every retailer, as defined in Section 10-5, whether or | 21 | | not the retailer has obtained a retailer's license pursuant to | 22 | | Section 4g, shall keep complete and accurate records of tobacco | 23 | | products held, purchased, sold, or otherwise disposed of, and | 24 | | shall preserve and keep all invoices, bills of lading, sales | 25 | | records, and copies of bills of sale, returns and other | 26 | | pertinent papers and documents relating to the purchase, sale, |
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| 1 | | or disposition of tobacco products. Such records need not be | 2 | | maintained on the licensed premises, but must be maintained in | 3 | | the State of Illinois; however, if access is available | 4 | | electronically, the records may be maintained out of state. | 5 | | However, all original invoices or copies thereof covering | 6 | | purchases of tobacco products must be retained on the licensed | 7 | | premises for a period of 90 days after such purchase, unless | 8 | | the Department has granted a waiver in response to a written | 9 | | request in cases where records are kept at a central business | 10 | | location within the State of Illinois or in cases where records | 11 | | that are available electronically are maintained out of state. | 12 | | The Department shall adopt rules regarding the eligibility for | 13 | | a waiver, revocation of a waiver, and requirements and | 14 | | standards for maintenance and accessibility of records located | 15 | | at a central location out-of-State pursuant to a waiver | 16 | | provided under this Section. | 17 | | (c) Books, records, papers, and documents that are
required | 18 | | by this Act to be kept shall, at all times during the usual | 19 | | business
hours of the day, be subject to inspection by the | 20 | | Department or its duly
authorized agents and employees. The | 21 | | books, records, papers, and documents for
any period with | 22 | | respect to which the Department is authorized to issue a notice
| 23 | | of tax liability shall be preserved until the expiration of | 24 | | that period.
| 25 | | (Source: P.A. 98-1055, eff. 1-1-16; 99-192, eff. 1-1-16 .)
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| 1 | | (35 ILCS 143/10-35a new) | 2 | | Sec. 10-35a. Failure to keep or produce books and records. | 3 | | Any person who fails to keep books and records or fails to | 4 | | produce books and records for inspection, as required by | 5 | | Section 10-35, is liable to pay to the Department, for deposit | 6 | | in the Tax Compliance and Administration Fund, a penalty of | 7 | | $1,000 for the first failure to keep books and records or | 8 | | failure to produce books and records for inspection, as | 9 | | required by Section 10-35, and $3,000 for each subsequent | 10 | | failure to keep books and records or failure to produce books | 11 | | and records for inspection, as required by Section 10-35. The | 12 | | Department may adopt rules to administer the penalties under | 13 | | this Section. | 14 | | (35 ILCS 143/10-37) | 15 | | Sec. 10-37. Proof of payment of tax imposed by this Act. | 16 | | Every licensed distributor of tobacco products in this State is | 17 | | required to show proof of the tax having been paid as required | 18 | | by this Act by displaying its Tobacco Products License number | 19 | | on every sales invoice issued to a retailer in this State. No | 20 | | retailer shall possess tobacco products without either a proper | 21 | | invoice indicating that the tobacco products tax was paid by a | 22 | | distributor for the tobacco products in the retailer's | 23 | | possession or other proof that the tax was paid by the retailer | 24 | | if it has purchased tobacco products on which tax has not been | 25 | | paid as required by this Act. Failure to comply with the |
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| 1 | | provisions of this paragraph may be grounds for revocation of a | 2 | | distributor's or retailer's license in accordance with Section | 3 | | 10-25 of this Act or Section 6 of the Cigarette Tax Act. In | 4 | | addition, the Department may impose a civil penalty not to | 5 | | exceed $1,000 for the first violation and $3,000 for each | 6 | | subsequent violation, which shall be deposited into the Tax | 7 | | Compliance and Administration Fund.
| 8 | | (Source: P.A. 98-1055, eff. 1-1-16 .) | 9 | | (35 ILCS 143/10-38 new) | 10 | | Sec. 10-38. Presumption for unlicensed distributors or | 11 | | persons. Whenever any person obtains tobacco products from an | 12 | | unlicensed in-state or out-of-state distributor or person, a | 13 | | prima facie presumption shall arise that the tax imposed by | 14 | | this Act on such tobacco products has not been paid in | 15 | | violation of this Act. Invoices or other documents kept in the | 16 | | normal course of business in the possession of a person | 17 | | reflecting purchases of tobacco products from an unlicensed | 18 | | in-state or out-of-state distributor or person or invoices or | 19 | | other documents kept in the normal course of business obtained | 20 | | by the Department from in-state or out-of-state distributors or | 21 | | persons, are sufficient to raise the presumption that the tax | 22 | | imposed by this Act has not been paid. If a presumption is | 23 | | raised, the Department may assess tax, penalty, and interest on | 24 | | the tobacco products. In addition, any person who violates this | 25 | | Section is liable to pay to the Department, for deposit in the |
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| 1 | | Tax Compliance and Administration Fund, a penalty of $1,000 for | 2 | | the first violation and $3,000 for any subsequent violation. | 3 | | The Department may adopt rules to administer the penalties | 4 | | under this Section.
| 5 | | (35 ILCS 143/10-40)
| 6 | | Sec. 10-40. Invoices. Every distributor or other person who | 7 | | purchases tobacco products for resale
for shipment into | 8 | | Illinois from a point outside Illinois shall procure invoices
| 9 | | in duplicate covering each shipment and shall make the invoices | 10 | | available for inspection upon demand by a duly authorized | 11 | | employee of the Department, and shall , if the Department so
| 12 | | requires, furnish one copy of each invoice to the Department at | 13 | | the time
of filing the return required by this Act.
| 14 | | (Source: P.A. 89-21, eff. 6-6-95.)
| 15 | | (35 ILCS 143/10-50)
| 16 | | Sec. 10-50. Violations and penalties. When the amount due | 17 | | is under $300,
any distributor who fails to file a return, | 18 | | willfully fails or refuses to
make any payment to the | 19 | | Department of the tax imposed by this Act, or files
a | 20 | | fraudulent return, or any officer or agent of a corporation | 21 | | engaged in the
business of distributing tobacco products to | 22 | | retailers and consumers
located in this State who signs a | 23 | | fraudulent
return filed on behalf of the corporation, or any | 24 | | accountant or other agent
who knowingly enters false |
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| 1 | | information on the return of any taxpayer under this
Act is | 2 | | guilty of a Class 4 felony.
| 3 | | Any person who violates any provision of Section 10-20, | 4 | | 10-21, or 10-22 of this Act, fails
to keep books and records as | 5 | | required under this Act, or willfully violates a
rule or | 6 | | regulation of the Department for the administration and | 7 | | enforcement of
this Act is guilty of a Class 4 felony. A person | 8 | | commits a separate offense on
each day that he or she engages | 9 | | in business in violation of Section 10-20, 10-21, or 10-22 of
| 10 | | this Act. If a person fails to produce the books and records | 11 | | for inspection by the Department upon request, a prima facie | 12 | | presumption shall arise that the person has failed to keep | 13 | | books and records as required under this Act. A person who is | 14 | | unable to rebut this presumption is in violation of this Act | 15 | | and is subject to the penalties provided in this Section.
| 16 | | When the amount due is under $300, any person who accepts | 17 | | money that is due
to the Department under this Act from a | 18 | | taxpayer for the purpose of acting as
the taxpayer's agent to | 19 | | make the payment to the Department, but who fails to
remit the | 20 | | payment to the Department when due, is guilty of a Class 4 | 21 | | felony.
| 22 | | Any person who violates any provision of Sections 10-20, | 23 | | 10-21 and 10-22 of this Act, fails to keep books and records as | 24 | | required under this Act, or willfully violates a rule or | 25 | | regulation of the Department for the administration and | 26 | | enforcement of this Act is guilty of a business offense and may |
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| 1 | | be fined up to $5,000. If a person fails to produce books and | 2 | | records for inspection by the Department upon request, a prima | 3 | | facie presumption shall arise that the person has failed to | 4 | | keep books and records as required under this Act. A person who | 5 | | is unable to rebut this presumption is in violation of this Act | 6 | | and is subject to the penalties provided in this Section. A | 7 | | person commits a separate offense on each day that he or she | 8 | | engages in business in violation of Sections 10-20, 10-21 and | 9 | | 10-22 of this Act. | 10 | | When the amount due is $300 or more, any distributor who | 11 | | files,
or causes to be filed, a fraudulent return, or any | 12 | | officer or agent of a
corporation engaged in the business of | 13 | | distributing tobacco products
to retailers and consumers | 14 | | located in this State who files or causes to be
filed or signs | 15 | | or causes
to be signed a fraudulent return filed on behalf of | 16 | | the corporation, or
any accountant or other agent who knowingly | 17 | | enters false information on
the return of any taxpayer under | 18 | | this Act is guilty of a Class 3 felony.
| 19 | | When the amount due is $300 or more, any person engaged in | 20 | | the business
of distributing tobacco products to retailers and | 21 | | consumers located in this
State who fails to file a return,
| 22 | | willfully fails or refuses to make any payment to the | 23 | | Department of the tax
imposed by this Act, or accepts money | 24 | | that is due to the Department under
this Act from a taxpayer | 25 | | for the purpose of acting as the taxpayer's agent to
make | 26 | | payment to the Department but fails to remit such payment to |
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| 1 | | the
Department when due is guilty of a Class 3 felony.
| 2 | | When the amount due is under $300, any retailer who fails | 3 | | to file a return, willfully fails or refuses to make any | 4 | | payment to the Department of the tax imposed by this Act, or | 5 | | files a fraudulent return, or any officer or agent of a | 6 | | corporation engaged in the retail business of selling tobacco | 7 | | products to purchasers of tobacco products for use and | 8 | | consumption located in this State who signs a fraudulent return | 9 | | filed on behalf of the corporation, or any accountant or other | 10 | | agent who knowingly enters false information on the return of | 11 | | any taxpayer under this Act is guilty of a Class A misdemeanor | 12 | | for a first offense and a Class 4 felony for each subsequent | 13 | | offense. | 14 | | When the amount due is $300 or more, any retailer who fails | 15 | | to file a return, willfully fails or refuses to make any | 16 | | payment to the Department of the tax imposed by this Act, or | 17 | | files a fraudulent return, or any officer or agent of a | 18 | | corporation engaged in the retail business of selling tobacco | 19 | | products to purchasers of tobacco products for use and | 20 | | consumption located in this State who signs a fraudulent return | 21 | | filed on behalf of the corporation, or any accountant or other | 22 | | agent who knowingly enters false information on the return of | 23 | | any taxpayer under this Act is guilty of a Class 4 felony. | 24 | | Any person whose principal place of business is in this | 25 | | State and
who is charged with a violation under this Section | 26 | | shall be
tried in the county where his or her principal place |
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| 1 | | of business is
located unless he or she asserts a right to be | 2 | | tried in another venue.
If the taxpayer does not have his or | 3 | | her principal place of business
in this State, however, the | 4 | | hearing must be held in Sangamon County unless
the taxpayer | 5 | | asserts a right to be tried in another venue.
| 6 | | Any taxpayer or agent of a taxpayer who with the intent to | 7 | | defraud
purports to make a payment due to the Department by | 8 | | issuing or delivering a
check or other order upon a real or | 9 | | fictitious depository for the payment
of money, knowing that it | 10 | | will not be paid by the depository, is
guilty of a deceptive | 11 | | practice in violation of Section 17-1 of the Criminal
Code of | 12 | | 2012.
| 13 | | A prosecution for a violation described in this Section may | 14 | | be commenced
within 3 years after the commission of the act | 15 | | constituting the violation.
| 16 | | (Source: P.A. 100-201, eff. 8-18-17.)
| 17 | | (35 ILCS 143/10-36 rep.) | 18 | | Section 40. The Tobacco Products Tax Act of 1995 is amended | 19 | | by repealing Section 10-36.
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law.".
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