Illinois Compiled Statutes
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35 ILCS 120/1
(35 ILCS 120/1)
(from Ch. 120, par. 440)
"Sale at retail" means any transfer of the
ownership of or title to
tangible personal property to a purchaser, for the purpose of use or
consumption, and not for the purpose of resale in any form as tangible
personal property to the extent not first subjected to a use for which it
was purchased, for a valuable consideration: Provided that the property
purchased is deemed to be purchased for the purpose of resale, despite
first being used, to the extent to which it is resold as an ingredient of
an intentionally produced product or byproduct of manufacturing. For this
purpose, slag produced as an incident to manufacturing pig iron or steel
and sold is considered to be an intentionally produced byproduct of
manufacturing. Transactions whereby the possession of the property is
transferred but the seller retains the title as security for payment of the
selling price shall be deemed to be sales.
"Sale at retail" shall be construed to include any transfer of the
ownership of or title to tangible personal property to a purchaser, for use
or consumption by any other person to whom such purchaser may transfer the
tangible personal property without a valuable consideration, and to include
any transfer, whether made for or without a valuable consideration, for
resale in any form as tangible personal property unless made in compliance
with Section 2c of this Act.
Sales of tangible personal property, which property, to the extent not
first subjected to a use for which it was purchased, as an ingredient or
constituent, goes into and forms a part of tangible personal property
subsequently the subject of a "Sale at retail", are not sales at retail as
defined in this Act: Provided that the property purchased is deemed to be
purchased for the purpose of resale, despite first being used, to the
extent to which it is resold as an ingredient of an intentionally produced
product or byproduct of manufacturing.
"Sale at retail" shall be construed to include any Illinois florist's
sales transaction in which the purchase order is received in Illinois by a
florist and the sale is for use or consumption, but the Illinois florist
has a florist in another state deliver the property to the purchaser or the
purchaser's donee in such other state.
Nonreusable tangible personal property that is used by persons engaged in
the business of operating a restaurant, cafeteria, or drive-in is a sale for
resale when it is transferred to customers in the ordinary course of business
as part of the sale of food or beverages and is used to deliver, package, or
consume food or beverages, regardless of where consumption of the food or
beverages occurs. Examples of those items include, but are not limited to
nonreusable, paper and plastic cups, plates, baskets, boxes, sleeves, buckets
or other containers, utensils, straws, placemats, napkins, doggie bags, and
wrapping or packaging
materials that are transferred to customers as part of the sale of food or
beverages in the ordinary course of business.
The purchase, employment and transfer of such tangible personal property
as newsprint and ink for the primary purpose of conveying news (with or
without other information) is not a purchase, use or sale of tangible
A person whose activities are organized and conducted primarily as a
not-for-profit service enterprise, and who engages in selling tangible
personal property at retail (whether to the public or merely to members and
their guests) is engaged in the business of selling tangible personal
property at retail with respect to such transactions, excepting only a
person organized and operated exclusively for charitable, religious or
educational purposes either (1), to the extent of sales by such person to
its members, students, patients or inmates of tangible personal property to
be used primarily for the purposes of such person, or (2), to the extent of
sales by such person of tangible personal property which is not sold or
offered for sale by persons organized for profit. The selling of school
books and school supplies by schools at retail to students is not
"primarily for the purposes of" the school which does such selling. The
provisions of this paragraph shall not apply to nor subject to taxation
occasional dinners, socials or similar activities of a person organized and
operated exclusively for charitable, religious or educational purposes,
whether or not such activities are open to the public.
A person who is the recipient of a grant or contract under Title VII of
the Older Americans Act of 1965 (P.L. 92-258) and serves meals to
participants in the federal Nutrition Program for the Elderly in return for
contributions established in amount by the individual participant pursuant
to a schedule of suggested fees as provided for in the federal Act is not
engaged in the business of selling tangible personal property at retail
with respect to such transactions.
"Purchaser" means anyone who, through a sale at retail, acquires the
ownership of or title to tangible personal property for a valuable
"Reseller of motor fuel" means any person engaged in the business of selling
or delivering or transferring title of motor fuel to another person
other than for use or consumption.
No person shall act as a reseller of motor fuel within this State without
first being registered as a reseller pursuant to Section 2c or a retailer
pursuant to Section 2a.
"Selling price" or the "amount of sale" means the consideration for a
sale valued in money whether received in money or otherwise, including
cash, credits, property, other than as hereinafter provided, and services,
but, prior to January 1, 2020 and beginning again on January 1, 2022, not including the value of or credit given for traded-in tangible
personal property where the item that is traded-in is of like kind and
character as that which is being sold; beginning January 1, 2020 and until January 1, 2022, "selling price" includes the portion of the value of or credit given for traded-in motor vehicles of the First Division as defined in Section 1-146 of the Illinois Vehicle Code of like kind and character as that which is being sold that exceeds $10,000. "Selling price" shall be determined without any
deduction on account of the cost of the property sold, the cost of
materials used, labor or service cost or any other expense whatsoever, but
does not include charges that are added to prices by sellers on account of
the seller's tax liability under this Act, or on account of the seller's
duty to collect, from the purchaser, the tax that is imposed by the Use Tax
Act, or, except as otherwise provided with respect to any cigarette tax imposed by a home rule unit, on account of the seller's tax liability under any local occupation tax administered by the Department, or, except as otherwise provided with respect to any cigarette tax imposed by a home rule unit on account of the seller's duty to collect, from the purchasers, the tax that is imposed under any local use tax administered by the Department.
Effective December 1, 1985, "selling price" shall include charges that
are added to prices by sellers on account of the seller's
tax liability under the Cigarette Tax Act, on account of the sellers'
duty to collect, from the purchaser, the tax imposed under the Cigarette
Use Tax Act, and on account of the seller's duty to collect, from the
purchaser, any cigarette tax imposed by a home rule unit.
Notwithstanding any law to the contrary, for any motor vehicle, as defined in Section 1-146 of the Vehicle Code, that is sold on or after January 1, 2015 for the purpose of leasing the vehicle for a defined period that is longer than one year and (1) is a motor vehicle of the second division that: (A) is a self-contained motor vehicle designed or permanently converted to provide living quarters for recreational, camping, or travel use, with direct walk through access to the living quarters from the driver's seat; (B) is of the van configuration designed for the transportation of not less than 7 nor more than 16 passengers; or (C) has a gross vehicle weight rating of 8,000 pounds or less or (2) is a motor vehicle of the first division, "selling price" or "amount of sale" means the consideration received by the lessor pursuant to the lease contract, including amounts due at lease signing and all monthly or other regular payments charged over the term of the lease. Also included in the selling price is any amount received by the lessor from the lessee for the leased vehicle that is not calculated at the time the lease is executed, including, but not limited to, excess mileage charges and charges for excess wear and tear. For sales that occur in Illinois, with respect to any amount received by the lessor from the lessee for the leased vehicle that is not calculated at the time the lease is executed, the lessor who purchased the motor vehicle does not incur the tax imposed by the Use Tax Act on those amounts, and the retailer who makes the retail sale of the motor vehicle to the lessor is not required to collect the tax imposed by the Use Tax Act or to pay the tax imposed by this Act on those amounts. However, the lessor who purchased the motor vehicle assumes the liability for reporting and paying the tax on those amounts directly to the Department in the same form (Illinois Retailers' Occupation Tax, and local retailers' occupation taxes, if applicable) in which the retailer would have reported and paid such tax if the retailer had accounted for the tax to the Department. For amounts received by the lessor from the lessee that are not calculated at the time the lease is executed, the lessor must file the return and pay the tax to the Department by the due date otherwise required by this Act for returns other than transaction returns. If the retailer is entitled under this Act to a discount for collecting and remitting the tax imposed under this Act to the Department with respect to the sale of the motor vehicle to the lessor, then the right to the discount provided in this Act shall be transferred to the lessor with respect to the tax paid by the lessor for any amount received by the lessor from the lessee for the leased vehicle that is not calculated at the time the lease is executed; provided that the discount is only allowed if the return is timely filed and for amounts timely paid. The "selling price" of a motor vehicle that is sold on or after January 1, 2015 for the purpose of leasing for a defined period of longer than one year shall not be reduced by the value of or credit given for traded-in tangible personal property owned by the lessor, nor shall it be reduced by the value of or credit given for traded-in tangible personal property owned by the lessee, regardless of whether the trade-in value thereof is assigned by the lessee to the lessor. In the case of a motor vehicle that is sold for the purpose of leasing for a defined period of longer than one year, the sale occurs at the time of the delivery of the vehicle, regardless of the due date of any lease payments. A lessor who incurs a Retailers' Occupation Tax liability on the sale of a motor vehicle coming off lease may not take a credit against that liability for the Use Tax the lessor paid upon the purchase of the motor vehicle (or for any tax the lessor paid with respect to any amount received by the lessor from the lessee for the leased vehicle that was not calculated at the time the lease was executed) if the selling price of the motor vehicle at the time of purchase was calculated using the definition of "selling price" as defined in this paragraph.
Notwithstanding any other provision of this Act to the contrary, lessors shall file all returns and make all payments required under this paragraph to the Department by electronic means in the manner and form as required by the Department. This paragraph does not apply to leases of motor vehicles for which, at the time the lease is entered into, the term of the lease is not a defined period, including leases with a defined initial period with the option to continue the lease on a month-to-month or other basis beyond the initial defined period.
The phrase "like kind and character" shall be liberally construed
(including but not limited to any form of motor vehicle for any form of
motor vehicle, or any kind of farm or agricultural implement for any other
kind of farm or agricultural implement), while not including a kind of item
which, if sold at retail by that retailer, would be exempt from retailers'
occupation tax and use tax as an isolated or occasional sale.
"Gross receipts" from the sales of tangible personal property at retail
means the total selling price or the amount of such sales, as hereinbefore
defined. In the case of charge and time sales, the amount thereof shall be
included only as and when payments are received by the seller.
Receipts or other consideration derived by a seller from
the sale, transfer or assignment of accounts receivable to a wholly owned
subsidiary will not be deemed payments prior to the time the purchaser
makes payment on such accounts.
"Department" means the Department of Revenue.
"Person" means any natural individual, firm, partnership, association,
joint stock company, joint adventure, public or private corporation, limited
liability company, or a receiver, executor, trustee, guardian or other
representative appointed by order of any court.
The isolated or occasional sale of tangible personal property at retail
by a person who does not hold himself out as being engaged (or who does not
habitually engage) in selling such tangible personal property at retail, or
a sale through a bulk vending machine, does not constitute engaging in a
business of selling such tangible personal property at retail within the
meaning of this Act; provided that any person who is engaged in a business
which is not subject to the tax imposed by this Act because of involving
the sale of or a contract to sell real estate or a construction contract to
improve real estate or a construction contract to engineer, install, and
maintain an integrated system of products, but who, in the course of
conducting such business,
transfers tangible personal property to users or consumers in the finished
form in which it was purchased, and which does not become real estate or was
not engineered and installed, under any provision of a construction contract or
real estate sale or real estate sales agreement entered into with some other
person arising out of or because of such nontaxable business, is engaged in the
business of selling tangible personal property at retail to the extent of the
value of the tangible personal property so transferred. If, in such a
transaction, a separate charge is made for the tangible personal property so
transferred, the value of such property, for the purpose of this Act, shall be
the amount so separately charged, but not less than the cost of such property
to the transferor; if no separate charge is made, the value of such property,
for the purposes of this Act, is the cost to the transferor of such tangible
personal property. Construction contracts for the improvement of real estate
consisting of engineering, installation, and maintenance of voice, data, video,
security, and all telecommunication systems do not constitute engaging in a
business of selling tangible personal property at retail within the meaning of
this Act if they are sold at one specified contract price.
A person who holds himself or herself out as being engaged (or who habitually
engages) in selling tangible personal property at retail is a person
engaged in the business of selling tangible personal property at retail
hereunder with respect to such sales (and not primarily in a service
occupation) notwithstanding the fact that such person designs and produces
such tangible personal property on special order for the purchaser and in
such a way as to render the property of value only to such purchaser, if
such tangible personal property so produced on special order serves
substantially the same function as stock or standard items of tangible
personal property that are sold at retail.
Persons who engage in the business of transferring tangible personal
property upon the redemption of trading stamps are engaged in the business
of selling such property at retail and shall be liable for and shall pay
the tax imposed by this Act on the basis of the retail value of the
property transferred upon redemption of such stamps.
"Bulk vending machine" means a vending machine,
containing unsorted confections, nuts, toys, or other items designed
primarily to be used or played with by children
which, when a coin or coins of a denomination not larger than $0.50 are
inserted, are dispensed in equal portions, at random and
without selection by the customer.
"Remote retailer" means a retailer that does not maintain within this State, directly or by a subsidiary, an office, distribution house, sales house, warehouse or other place of business, or any agent or other representative operating within this State under the authority of the retailer or its subsidiary, irrespective of whether such place of business or agent is located here permanently or temporarily or whether such retailer or subsidiary is licensed to do business in this State.
"Marketplace" means a physical or electronic place, forum, platform, application, or other method by which a marketplace seller sells or offers to sell items.
"Marketplace facilitator" means a person who, pursuant to an agreement with an unrelated third-party marketplace seller, directly or indirectly through one or more affiliates facilitates a retail sale by an unrelated third party marketplace seller by:
(1) listing or advertising for sale by the
marketplace seller in a marketplace, tangible personal property that is subject to tax under this Act; and
(2) either directly or indirectly, through agreements
or arrangements with third parties, collecting payment from the customer and transmitting that payment to the marketplace seller regardless of whether the marketplace facilitator receives compensation or other consideration in exchange for its services.
A person who provides advertising services, including listing products for sale, is not considered a marketplace facilitator, so long as the advertising service platform or forum does not engage, directly or indirectly through one or more affiliated persons, in the activities described in paragraph (2) of this definition of "marketplace facilitator".
"Marketplace facilitator" does not include any person licensed under the Auction License Act. This exemption does not apply to any person who is an Internet auction listing service, as defined by the Auction License Act.
"Marketplace seller" means a person that makes sales through a marketplace operated by an unrelated third party marketplace facilitator.
(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20; 102-353, eff. 1-1-22; 102-634, eff. 8-27-21; 102-813, eff. 5-13-22.)