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90_SB0458
35 ILCS 120/5 from Ch. 120, par. 444
Amends the Retailers' Occupation Tax Act. Provides that
if the Department of Revenue accepts a return filed by a
taxpayer and the payment of all the tax due under the return
along with any penalties or interest that have accrued then
(i) the Department shall not further prosecute the taxpayer
based on the return or the failure to pay the tax or any
penalties or interest due and (ii) the Department shall not
assess any further penalties or interest on the return or the
payment of tax.
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1 AN ACT to amend the Retailers' Occupation Tax Act by
2 changing Section 5.
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 5 as follows:
7 (35 ILCS 120/5) (from Ch. 120, par. 444)
8 Sec. 5. In case any person engaged in the business of
9 selling tangible personal property at retail fails to file a
10 return when and as herein required, but thereafter, prior to
11 the Department's issuance of a notice of tax liability under
12 this Section, files a return and pays the tax, he shall also
13 pay a penalty in an amount determined in accordance with
14 Section 3-3 of the Uniform Penalty and Interest Act.
15 In case any person engaged in the business of selling
16 tangible personal property at retail files the return at the
17 time required by this Act but fails to pay the tax, or any
18 part thereof, when due, a penalty in an amount determined in
19 accordance with Section 3-3 of the Uniform Penalty and
20 Interest Act shall be added thereto.
21 In case any person engaged in the business of selling
22 tangible personal property at retail fails to file a return
23 when and as herein required, but thereafter, prior to the
24 Department's issuance of a notice of tax liability under this
25 Section, files a return but fails to pay the entire tax, a
26 penalty in an amount determined in accordance with Section
27 3-3 of the Uniform Penalty and Interest Act shall be added
28 thereto.
29 In case any person engaged in the business of selling
30 tangible personal property at retail fails to file a return,
31 the Department shall determine the amount of tax due from him
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1 according to its best judgment and information, which amount
2 so fixed by the Department shall be prima facie correct and
3 shall be prima facie evidence of the correctness of the
4 amount of tax due, as shown in such determination. In making
5 any such determination of tax due, it shall be permissible
6 for the Department to show a figure that represents the tax
7 due for any given period of 6 months instead of showing the
8 amount of tax due for each month separately. Proof of such
9 determination by the Department may be made at any hearing
10 before the Department or in any legal proceeding by a
11 reproduced copy or computer print-out of the Department's
12 record relating thereto in the name of the Department under
13 the certificate of the Director of Revenue. If reproduced
14 copies of the Department's records are offered as proof of
15 such determination, the Director must certify that those
16 copies are true and exact copies of records on file with the
17 Department. If computer print-outs of the Department's
18 records are offered as proof of such determination, the
19 Director must certify that those computer print-outs are true
20 and exact representations of records properly entered into
21 standard electronic computing equipment, in the regular
22 course of the Department's business, at or reasonably near
23 the time of the occurrence of the facts recorded, from
24 trustworthy and reliable information. Such certified
25 reproduced copy or certified computer print-out shall,
26 without further proof, be admitted into evidence before the
27 Department or in any legal proceeding and shall be prima
28 facie proof of the correctness of the amount of tax due, as
29 shown therein. The Department shall issue the taxpayer a
30 notice of tax liability for the amount of tax claimed by the
31 Department to be due, together with a penalty of 30% thereof.
32 However, where the failure to file any tax return
33 required under this Act on the date prescribed therefor
34 (including any extensions thereof), is shown to be
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1 unintentional and nonfraudulent and has not occurred in the 2
2 years immediately preceding the failure to file on the
3 prescribed date or is due to other reasonable cause the
4 penalties imposed by this Act shall not apply.
5 If such person or the legal representative of such person
6 files, within 60 days after such notice, a protest to such
7 notice of tax liability and requests a hearing thereon, the
8 Department shall give notice to such person or the legal
9 representative of such person of the time and place fixed for
10 such hearing, and shall hold a hearing in conformity with the
11 provisions of this Act, and pursuant thereto shall issue a
12 final assessment to such person or to the legal
13 representative of such person for the amount found to be due
14 as a result of such hearing.
15 If a protest to the notice of tax liability and a request
16 for a hearing thereon is not filed within 60 days after such
17 notice, such notice of tax liability shall become final
18 without the necessity of a final assessment being issued and
19 shall be deemed to be a final assessment.
20 After the issuance of a final assessment, or a notice of
21 tax liability which becomes final without the necessity of
22 actually issuing a final assessment as hereinbefore provided,
23 the Department, at any time before such assessment is reduced
24 to judgment, may (subject to rules of the Department) grant a
25 rehearing (or grant departmental review and hold an original
26 hearing if no previous hearing in the matter has been held)
27 upon the application of the person aggrieved. Pursuant to
28 such hearing or rehearing, the Department shall issue a
29 revised final assessment to such person or his legal
30 representative for the amount found to be due as a result of
31 such hearing or rehearing.
32 Except in case of failure to file a return, or with the
33 consent of the person to whom the notice of tax liability is
34 to be issued, no notice of tax liability shall be issued on
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1 and after each July 1 and January 1 covering gross receipts
2 received during any month or period of time more than 3 years
3 prior to such July 1 and January 1, respectively, except that
4 if a return is not filed at the required time, a notice of
5 tax liability may be issued not later than 3 years after the
6 time the return is filed. The foregoing limitations upon the
7 issuance of a notice of tax liability shall not apply to the
8 issuance of any such notice with respect to any period of
9 time prior thereto in cases where the Department has, within
10 the period of limitation then provided, notified a person of
11 the amount of tax computed even though the Department had not
12 determined the amount of tax due from such person in the
13 manner required herein prior to the issuance of such notice,
14 but in no case shall the amount of any such notice of tax
15 liability for any period otherwise barred by this Act exceed
16 for such period the amount shown in the notice theretofore
17 issued.
18 If, when a tax or penalty under this Act becomes due and
19 payable, the person alleged to be liable therefor is out of
20 the State, the notice of tax liability may be issued within
21 the times herein limited after his or her coming into or
22 return to the State; and if, after the tax or penalty under
23 this Act becomes due and payable, the person alleged to be
24 liable therefor departs from and remains out of the State,
25 the time of his or her absence is no part of the time limited
26 for the issuance of the notice of tax liability; but the
27 foregoing provisions concerning absence from the State shall
28 not apply to any case in which, at the time when a tax or
29 penalty becomes due under this Act, the person allegedly
30 liable therefor is not a resident of this State.
31 The time limitation period on the Department's right to
32 issue a notice of tax liability shall not run during any
33 period of time in which the order of any court has the effect
34 of enjoining or restraining the Department from issuing the
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1 notice of tax liability.
2 In case of failure to pay the tax, or any portion
3 thereof, or any penalty provided for in this Act, or
4 interest, when due, the Department may bring suit to recover
5 the amount of such tax, or portion thereof, or penalty or
6 interest; or, if the taxpayer has died or become a person
7 under legal disability, may file a claim therefor against his
8 estate; provided that no such suit with respect to any tax,
9 or portion thereof, or penalty, or interest shall be
10 instituted more than 2 years after the date any proceedings
11 in court for review thereof have terminated or the time for
12 the taking thereof has expired without such proceedings being
13 instituted, except with the consent of the person from whom
14 such tax or penalty or interest is due; nor, except with such
15 consent, shall such suit be instituted more than 2 years
16 after the date any return is filed with the Department in
17 cases where the return constitutes the basis for the suit for
18 unpaid tax, or portion thereof, or penalty provided for in
19 this Act, or interest: Provided that the time limitation
20 period on the Department's right to bring any such suit shall
21 not run during any period of time in which the order of any
22 court has the effect of enjoining or restraining the
23 Department from bringing such suit.
24 After the expiration of the period within which the
25 person assessed may file an action for judicial review under
26 the Administrative Review Law without such an action being
27 filed, a certified copy of the final assessment or revised
28 final assessment of the Department may be filed with the
29 Circuit Court of the county in which the taxpayer has his
30 principal place of business, or of Sangamon County in those
31 cases in which the taxpayer does not have his principal place
32 of business in this State. The certified copy of the final
33 assessment or revised final assessment shall be accompanied
34 by a certification which recites facts that are sufficient to
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1 show that the Department complied with the jurisdictional
2 requirements of the Act in arriving at its final assessment
3 or its revised final assessment and that the taxpayer had his
4 opportunity for an administrative hearing and for judicial
5 review, whether he availed himself or herself of either or
6 both of these opportunities or not. If the court is satisfied
7 that the Department complied with the jurisdictional
8 requirements of the Act in arriving at its final assessment
9 or its revised final assessment and that the taxpayer had his
10 opportunity for an administrative hearing and for judicial
11 review, whether he availed himself of either or both of these
12 opportunities or not, the court shall render judgment in
13 favor of the Department and against the taxpayer for the
14 amount shown to be due by the final assessment or the revised
15 final assessment, plus any interest which may be due, and
16 such judgment shall be entered in the judgment docket of the
17 court. Such judgment shall bear the rate of interest as set
18 by the Uniform Penalty and Interest Act, but otherwise shall
19 have the same effect as other judgments. The judgment may be
20 enforced, and all laws applicable to sales for the
21 enforcement of a judgment shall be applicable to sales made
22 under such judgments. The Department shall file the certified
23 copy of its assessment, as herein provided, with the Circuit
24 Court within 2 years after such assessment becomes final
25 except when the taxpayer consents in writing to an extension
26 of such filing period, and except that the time limitation
27 period on the Department's right to file the certified copy
28 of its assessment with the Circuit Court shall not run during
29 any period of time in which the order of any court has the
30 effect of enjoining or restraining the Department from filing
31 such certified copy of its assessment with the Circuit Court.
32 If, when the cause of action for a proceeding in court
33 accrues against a person, he or she is out of the State, the
34 action may be commenced within the times herein limited,
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1 after his or her coming into or return to the State; and if,
2 after the cause of action accrues, he or she departs from and
3 remains out of the State, the time of his or her absence is
4 no part of the time limited for the commencement of the
5 action; but the foregoing provisions concerning absence from
6 the State shall not apply to any case in which, at the time
7 the cause of action accrues, the party against whom the cause
8 of action accrues is not a resident of this State. The time
9 within which a court action is to be commenced by the
10 Department hereunder shall not run from the date the taxpayer
11 files a petition in bankruptcy under the Federal Bankruptcy
12 Act until 30 days after notice of termination or expiration
13 of the automatic stay imposed by the Federal Bankruptcy Act.
14 No claim shall be filed against the estate of any
15 deceased person or any person under legal disability for any
16 tax or penalty or part of either, or interest, except in the
17 manner prescribed and within the time limited by the Probate
18 Act of 1975, as amended.
19 The collection of tax or penalty or interest by any means
20 provided for herein shall not be a bar to any prosecution
21 under this Act.
22 In addition to any penalty provided for in this Act, any
23 amount of tax which is not paid when due shall bear interest
24 at the rate and in the manner specified in Sections 3-2 and
25 3-9 of the Uniform Penalty and Interest Act from the date
26 when such tax becomes past due until such tax is paid or a
27 judgment therefor is obtained by the Department. If the time
28 for making or completing an audit of a taxpayer's books and
29 records is extended with the taxpayer's consent, at the
30 request of and for the convenience of the Department, beyond
31 the date on which the statute of limitations upon the
32 issuance of a notice of tax liability by the Department
33 otherwise would run, no interest shall accrue during the
34 period of such extension or until a Notice of Tax Liability
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1 is issued, whichever occurs first.
2 In addition to any other remedy provided by this Act, and
3 regardless of whether the Department is making or intends to
4 make use of such other remedy, where a corporation or limited
5 liability company registered under this Act violates the
6 provisions of this Act or of any rule or regulation
7 promulgated thereunder, the Department may give notice to the
8 Attorney General of the identity of such a corporation or
9 limited liability company and of the violations committed by
10 such a corporation or limited liability company, for such
11 action as is not already provided for by this Act and as the
12 Attorney General may deem appropriate.
13 If the Department determines that an amount of tax or
14 penalty or interest was incorrectly assessed, whether as the
15 result of a mistake of fact or an error of law, the
16 Department shall waive the amount of tax or penalty or
17 interest that accrued due to the incorrect assessment.
18 If the Department accepts a return filed by a taxpayer
19 and the payment by the taxpayer of all tax due under the
20 return along with any penalties or interest that have
21 accrued, then (i) the Department shall not further prosecute
22 the taxpayer based on that return or the failure to pay the
23 tax or the penalties due under that return and (ii) the
24 Department shall not assess any further penalties or interest
25 on the return or the payment of tax due under the return.
26 (Source: P.A. 87-193; 87-205; 87-895; 88-480.)