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90_HB1920
35 ILCS 120/6 from Ch. 120, par. 445
Amends the Retailers' Occupation Tax Act. Provides that
the Department of Revenue shall refund any amount a taxpayer
overpays that cannot reasonably be expected to become due
from the taxpayer within the next 12 months, rather than
issue the taxpayer a credit memorandum in that amount.
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1 AN ACT to amend the Retailers' Occupation Tax Act by
2 changing Section 6.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Retailers' Occupation Tax Act is amended
6 by changing Section 6 as follows:
7 (35 ILCS 120/6) (from Ch. 120, par. 445)
8 Sec. 6. Credit memorandum or refund. If it appears, after
9 claim therefor filed with the Department, that an amount of
10 tax or penalty or interest has been paid which was not due
11 under this Act, whether as the result of a mistake of fact or
12 an error of law, except as hereinafter provided, then the
13 Department shall issue a credit memorandum or refund to the
14 person who made the erroneous payment or, if that person died
15 or became a person under legal disability, to his or her
16 legal representative, as such. For purposes of this Section,
17 the tax is deemed to be erroneously paid by a retailer when
18 the manufacturer of a motor vehicle sold by the retailer
19 accepts the return of that automobile and refunds to the
20 purchaser the selling price of that vehicle as provided in
21 the New Vehicle Buyer Protection Act. When a motor vehicle is
22 returned for a refund of the purchase price under the New
23 Vehicle Buyer Protection Act, the Department shall issue a
24 credit memorandum or a refund for the amount of tax paid by
25 the retailer under this Act attributable to the initial sale
26 of that vehicle. Claims submitted by the retailer are subject
27 to the same restrictions and procedures provided for in this
28 Act. If it is determined that the Department should issue a
29 credit memorandum or refund, the Department may first apply
30 the amount thereof against any tax or penalty or interest due
31 or to become due under this Act or under the Use Tax Act, the
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1 Service Occupation Tax Act, the Service Use Tax Act, the
2 Municipal Retailers' Occupation Tax Act, the Municipal Use
3 Tax Act, the Municipal Service Occupation Tax Act, the County
4 Retailers' Occupation Tax Act, the County Supplementary
5 Retailers' Occupation Tax Act, the County Service Occupation
6 Tax Act, the County Supplementary Service Occupation Tax Act,
7 the County Use Tax Act, the County Supplementary Use Tax Act,
8 Section 4 of the Water Commission Act of 1985, subsections
9 (b), (c) and (d) of Section 5.01 of the Local Mass Transit
10 District Act, or subsections (e), (f) and (g) of Section 4.03
11 of the Regional Transportation Authority Act, from the person
12 who made the erroneous payment. If no tax or penalty or
13 interest is due and no proceeding is pending to determine
14 whether such person is indebted to the Department for tax or
15 penalty or interest, the credit memorandum or refund shall be
16 issued to the claimant; or (in the case of a credit
17 memorandum) the credit memorandum may be assigned and set
18 over by the lawful holder thereof, subject to reasonable
19 rules of the Department, to any other person who is subject
20 to this Act, the Use Tax Act, the Service Occupation Tax Act,
21 the Service Use Tax Act, the Municipal Retailers' Occupation
22 Tax Act, the Municipal Use Tax Act, the Municipal Service
23 Occupation Tax Act, the County Retailers' Occupation Tax Act,
24 the County Supplementary Retailers' Occupation Tax Act, the
25 County Service Occupation Tax Act, the County Supplementary
26 Service Occupation Tax Act, the County Use Tax Act, the
27 County Supplementary Use Tax Act, Section 4 of the Water
28 Commission Act of 1985, subsections (b), (c) and (d) of
29 Section 5.01 of the Local Mass Transit District Act, or
30 subsections (e), (f) and (g) of Section 4.03 of the Regional
31 Transportation Authority Act, and the amount thereof applied
32 by the Department against any tax or penalty or interest due
33 or to become due under this Act or under the Use Tax Act, the
34 Service Occupation Tax Act, the Service Use Tax Act, the
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1 Municipal Retailers' Occupation Tax Act, the Municipal Use
2 Tax Act, the Municipal Service Occupation Tax Act, the County
3 Retailers' Occupation Tax Act, the County Supplementary
4 Retailers' Occupation Tax Act, the County Service Occupation
5 Tax Act, the County Supplementary Service Occupation Tax Act,
6 the County Use Tax Act, the County Supplementary Use Tax Act,
7 Section 4 of the Water Commission Act of 1985, subsections
8 (b), (c) and (d) of Section 5.01 of the Local Mass Transit
9 District Act, or subsections (e), (f) and (g) of Section 4.03
10 of the Regional Transportation Authority Act, from such
11 assignee. However, as to any claim for credit or refund
12 filed with the Department on and after each January 1 and
13 July 1 no amount of tax or penalty or interest erroneously
14 paid (either in total or partial liquidation of a tax or
15 penalty or amount of interest under this Act) more than 3
16 years prior to such January 1 and July 1, respectively, shall
17 be credited or refunded, except that if both the Department
18 and the taxpayer have agreed to an extension of time to issue
19 a notice of tax liability as provided in Section 4 of this
20 Act, such claim may be filed at any time prior to the
21 expiration of the period agreed upon.
22 No claim may be allowed for any amount paid to the
23 Department, whether paid voluntarily or involuntarily, if
24 paid in total or partial liquidation of an assessment which
25 had become final before the claim for credit or refund to
26 recover the amount so paid is filed with the Department, or
27 if paid in total or partial liquidation of a judgment or
28 order of court. No credit may be allowed or refund made for
29 any amount paid by or collected from any claimant unless it
30 appears (a) that the claimant bore the burden of such amount
31 and has not been relieved thereof nor reimbursed therefor and
32 has not shifted such burden directly or indirectly through
33 inclusion of such amount in the price of the tangible
34 personal property sold by him or her or in any manner
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1 whatsoever; and that no understanding or agreement, written
2 or oral, exists whereby he or she or his or her legal
3 representative may be relieved of the burden of such amount,
4 be reimbursed therefor or may shift the burden thereof; or
5 (b) that he or she or his or her legal representative has
6 repaid unconditionally such amount to his or her vendee (1)
7 who bore the burden thereof and has not shifted such burden
8 directly or indirectly, in any manner whatsoever; (2) who, if
9 he or she has shifted such burden, has repaid unconditionally
10 such amount to his own vendee; and (3) who is not entitled to
11 receive any reimbursement therefor from any other source than
12 from his or her vendor, nor to be relieved of such burden in
13 any manner whatsoever. No credit may be allowed or refund
14 made for any amount paid by or collected from any claimant
15 unless it appears that the claimant has unconditionally
16 repaid, to the purchaser, any amount collected from the
17 purchaser and retained by the claimant with respect to the
18 same transaction under the Use Tax Act.
19 Any credit or refund that is allowed under this Section
20 shall bear interest at the rate and in the manner specified
21 in the Uniform Penalty and Interest Act.
22 In case the Department determines that the claimant is
23 entitled to a refund, such refund shall be made only from
24 such appropriation as may be available for that purpose. If
25 it appears unlikely that the amount appropriated would permit
26 everyone having a claim allowed during the period covered by
27 such appropriation to elect to receive a cash refund, the
28 Department, by rule or regulation, shall provide for the
29 payment of refunds in hardship cases and shall define what
30 types of cases qualify as hardship cases. Notwithstanding any
31 other provision, the Department shall refund any amount a
32 taxpayer overpays that cannot reasonably be expected to
33 become due from the taxpayer within the next 12 months under
34 any tax administered by the Department.
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1 If a retailer who has failed to pay retailers' occupation
2 tax on gross receipts from retail sales is required by the
3 Department to pay such tax, such retailer, without filing any
4 formal claim with the Department, shall be allowed to take
5 credit against such retailers' occupation tax liability to
6 the extent, if any, to which such retailer has paid an amount
7 equivalent to retailers' occupation tax or has paid use tax
8 in error to his or her vendor or vendors of the same tangible
9 personal property which such retailer bought for resale and
10 did not first use before selling it, and no penalty or
11 interest shall be charged to such retailer on the amount of
12 such credit. However, when such credit is allowed to the
13 retailer by the Department, the vendor is precluded from
14 refunding any of that tax to the retailer and filing a claim
15 for credit or refund with respect thereto with the
16 Department. The provisions of this amendatory Act shall be
17 applied retroactively, regardless of the date of the
18 transaction.
19 (Source: P.A. 89-359, eff. 8-17-95.)