Full Text of SB1467 98th General Assembly
SB1467 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 SB1467 Introduced 2/6/2013, by Sen. John M. Sullivan SYNOPSIS AS INTRODUCED: |
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35 ILCS 120/6 | from Ch. 120, par. 445 |
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Amends the Retailers' Occupation Tax Act. Makes a technical change in a Section concerning credits and refunds.
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| | A BILL FOR |
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| 1 | | AN ACT concerning revenue.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Retailers' Occupation Tax Act is amended by | 5 | | changing Section 6 as follows:
| 6 | | (35 ILCS 120/6) (from Ch. 120, par. 445)
| 7 | | Sec. 6. Credit memorandum or refund. If it appears, after | 8 | | claim therefor
filed with the the Department, that
an amount of | 9 | | tax or penalty or interest has been paid which was not due | 10 | | under
this Act, whether as the result of a mistake of fact or | 11 | | an error of law,
except as hereinafter provided, then the | 12 | | Department shall issue a credit
memorandum or refund to the | 13 | | person who made the erroneous payment or, if
that person died | 14 | | or became a person under legal disability, to his or her
legal | 15 | | representative, as such.
For purposes of this Section, the tax | 16 | | is deemed to be erroneously paid by
a retailer when the | 17 | | manufacturer of a motor vehicle sold by the retailer
accepts
| 18 | | the return of that automobile and refunds to the purchaser the | 19 | | selling price of
that vehicle as provided in the New Vehicle | 20 | | Buyer Protection Act. When a
motor vehicle is returned for a | 21 | | refund of the purchase price under the New
Vehicle Buyer | 22 | | Protection Act, the Department shall issue a credit memorandum
| 23 | | or a refund for the amount of tax paid by the retailer under |
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| 1 | | this Act
attributable to the initial sale of that vehicle. | 2 | | Claims submitted by the
retailer are subject to the same | 3 | | restrictions and procedures provided for in
this Act.
If it is | 4 | | determined that the Department
should issue a credit memorandum | 5 | | or refund, the Department may first apply
the amount thereof | 6 | | against any tax or penalty or interest due or to become
due | 7 | | under this Act or under the Use Tax Act, the Service Occupation | 8 | | Tax
Act, the Service Use Tax Act,
any local occupation or use | 9 | | tax administered by the Department,
Section 4 of the Water | 10 | | Commission Act of
1985, subsections (b), (c) and (d) of Section | 11 | | 5.01 of the Local Mass
Transit District Act, or subsections | 12 | | (e), (f) and (g) of Section 4.03 of
the Regional Transportation | 13 | | Authority Act, from the person who made the
erroneous payment. | 14 | | If no tax or penalty or interest is due and no
proceeding is | 15 | | pending to determine whether such person is indebted to the
| 16 | | Department for tax or penalty or interest, the credit | 17 | | memorandum or refund
shall be issued to the claimant; or (in | 18 | | the case of a credit memorandum)
the credit memorandum may be | 19 | | assigned and set over by the lawful holder
thereof, subject to | 20 | | reasonable rules of the Department, to any other person
who is | 21 | | subject to this Act, the Use Tax Act, the Service Occupation | 22 | | Tax Act,
the Service Use Tax Act,
any local occupation or use | 23 | | tax administered by the Department,
Section 4 of the Water | 24 | | Commission Act of
1985, subsections (b), (c) and (d) of Section | 25 | | 5.01 of the Local Mass
Transit District Act, or subsections | 26 | | (e), (f) and (g) of Section 4.03 of
the Regional Transportation |
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| 1 | | Authority Act,
and the amount thereof applied by the Department | 2 | | against any tax or
penalty or interest due or to become due | 3 | | under this Act or under the Use
Tax Act, the Service Occupation | 4 | | Tax Act, the Service
Use Tax Act,
any local occupation or use | 5 | | tax administered by the Department,
Section 4 of the Water | 6 | | Commission Act of
1985, subsections (b), (c) and (d) of Section | 7 | | 5.01 of the Local Mass
Transit District Act, or subsections | 8 | | (e), (f) and (g) of Section 4.03 of
the Regional Transportation | 9 | | Authority Act, from such assignee. However, as
to any claim for | 10 | | credit or refund filed with the Department on and after
each | 11 | | January 1 and July 1 no amount of tax or penalty or interest
| 12 | | erroneously paid (either in total or partial liquidation of a | 13 | | tax or
penalty or amount of interest under this Act) more than | 14 | | 3 years prior to
such January 1 and July 1, respectively, shall | 15 | | be credited or refunded,
except that if both the Department and | 16 | | the taxpayer have agreed to an
extension of time to issue a | 17 | | notice of tax liability as
provided in Section 4 of this Act, | 18 | | such claim may be filed at any time
prior to the expiration of | 19 | | the period agreed upon.
| 20 | | No claim may be allowed for any amount paid to the | 21 | | Department, whether
paid voluntarily or involuntarily, if paid | 22 | | in total or partial liquidation
of an assessment which had | 23 | | become final before the claim for credit or
refund to recover | 24 | | the amount so paid is filed with the Department, or if
paid in | 25 | | total or partial liquidation of a judgment or order of
court. | 26 | | No credit may be allowed or refund made for any amount paid by |
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| 1 | | or
collected from any claimant unless it appears (a) that the | 2 | | claimant bore
the burden of such amount and has not been | 3 | | relieved thereof nor reimbursed
therefor and has not shifted | 4 | | such burden directly or indirectly through
inclusion of such | 5 | | amount in the price of the tangible personal property
sold by | 6 | | him or her or in any manner whatsoever; and that no | 7 | | understanding or
agreement, written or oral, exists whereby he | 8 | | or she or his or her
legal representative may be relieved of | 9 | | the burden of such amount, be
reimbursed therefor or may shift | 10 | | the burden thereof; or (b) that he or she
or his or her legal | 11 | | representative has repaid unconditionally such amount
to his or | 12 | | her vendee (1) who bore the burden thereof and has not shifted
| 13 | | such burden directly or indirectly, in any manner whatsoever; | 14 | | (2) who, if
he or she has shifted such burden, has repaid | 15 | | unconditionally such amount
to his own vendee; and (3) who is | 16 | | not entitled to receive any reimbursement
therefor from any | 17 | | other source than from his or her vendor, nor to be
relieved of | 18 | | such burden in any manner whatsoever. No credit may be allowed
| 19 | | or refund made for any amount paid by or collected from any | 20 | | claimant unless
it appears that the claimant has | 21 | | unconditionally repaid, to the purchaser,
any amount collected | 22 | | from the purchaser and retained by the claimant with
respect to | 23 | | the same transaction under the Use Tax Act.
| 24 | | Any credit or refund that is allowed under this Section | 25 | | shall bear interest
at the rate and in the manner specified in | 26 | | the Uniform Penalty and Interest
Act.
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| 1 | | In case the Department determines that the claimant is | 2 | | entitled to a
refund, such refund shall be made only from such | 3 | | appropriation as may be
available for that purpose. If it | 4 | | appears unlikely that the amount
appropriated would permit | 5 | | everyone having a claim allowed during the period
covered by | 6 | | such appropriation to elect to receive a cash refund, the
| 7 | | Department, by rule or regulation, shall provide for the | 8 | | payment of refunds in
hardship cases and shall define what | 9 | | types of cases qualify as hardship cases.
| 10 | | If a retailer who has failed to pay retailers' occupation | 11 | | tax on gross
receipts from retail sales is required by the | 12 | | Department to pay such tax,
such retailer, without filing any | 13 | | formal claim with the Department, shall
be allowed to take | 14 | | credit against such retailers' occupation tax liability
to the | 15 | | extent, if any, to which such retailer has paid an amount | 16 | | equivalent
to retailers' occupation tax or has paid use tax in | 17 | | error to his or her vendor
or vendors of the same tangible | 18 | | personal property which such retailer bought
for resale and did | 19 | | not first use before selling it, and no penalty or
interest | 20 | | shall be charged to such retailer on the amount of such credit.
| 21 | | However, when such credit is allowed to the retailer by the | 22 | | Department, the
vendor is precluded from refunding any of that | 23 | | tax to the retailer and
filing a claim for credit or refund | 24 | | with respect thereto with the
Department. The provisions of | 25 | | this amendatory Act shall be applied
retroactively, regardless | 26 | | of the date of the transaction.
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| 1 | | (Source: P.A. 91-901, eff. 1-1-01.)
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