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90_SB0673
35 ILCS 120/6 from Ch. 120, par. 445
625 ILCS 5/5-104.2
815 ILCS 380/1 from Ch. 121 1/2, par. 1201
815 ILCS 380/2 from Ch. 121 1/2, par. 1202
815 ILCS 380/3 from Ch. 121 1/2, par. 1203
815 ILCS 380/4 from Ch. 121 1/2, par. 1204
815 ILCS 380/7 from Ch. 121 1/2, par. 1207
Amends the New Vehicle Buyer Protection Act. Provides
that used vehicles are covered by the Act. Changes the short
title of the Act to the Vehicle Buyer Protection Act.
Changes cross-references to the Act in the Retailers'
Occupation Tax Act and the Illinois Vehicle Code.
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LRB9002245NTsb
1 AN ACT concerning vehicles, amending named Acts.
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
5 by changing Section 35 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 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
15 legal representative, as such. For purposes of this Section,
16 the tax is deemed to be erroneously paid by a retailer when
17 the manufacturer of a motor vehicle sold by the retailer
18 accepts the return of that automobile and refunds to the
19 purchaser the selling price of that vehicle as provided in
20 the New Vehicle Buyer Protection Act. When a motor vehicle is
21 returned for a refund of the purchase price under the New
22 Vehicle Buyer Protection Act, the Department shall issue a
23 credit memorandum or a refund for the amount of tax paid by
24 the retailer under this Act attributable to the initial sale
25 of that vehicle. Claims submitted by the retailer are subject
26 to the same restrictions and procedures provided for in this
27 Act. If it is determined that the Department should issue a
28 credit memorandum or refund, the Department may first apply
29 the amount thereof against any tax or penalty or interest due
30 or to become due under this Act or under the Use Tax Act, the
31 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 the person
11 who made the erroneous payment. If no tax or penalty or
12 interest is due and no proceeding is pending to determine
13 whether such person is indebted to the Department for tax or
14 penalty or interest, the credit memorandum or refund shall be
15 issued to the claimant; or (in the case of a credit
16 memorandum) the credit memorandum may be assigned and set
17 over by the lawful holder thereof, subject to reasonable
18 rules of the Department, to any other person who is subject
19 to this Act, the Use Tax Act, the Service Occupation Tax Act,
20 the Service Use Tax Act, the Municipal Retailers' Occupation
21 Tax Act, the Municipal Use Tax Act, the Municipal Service
22 Occupation Tax Act, the County Retailers' Occupation Tax Act,
23 the County Supplementary Retailers' Occupation Tax Act, the
24 County Service Occupation Tax Act, the County Supplementary
25 Service Occupation Tax Act, the County Use Tax Act, the
26 County Supplementary Use Tax Act, Section 4 of the Water
27 Commission Act of 1985, subsections (b), (c) and (d) of
28 Section 5.01 of the Local Mass Transit District Act, or
29 subsections (e), (f) and (g) of Section 4.03 of the Regional
30 Transportation Authority Act, and the amount thereof applied
31 by the Department against any tax or penalty or interest due
32 or to become due under this Act or under the Use Tax Act, the
33 Service Occupation Tax Act, the Service Use Tax Act, the
34 Municipal Retailers' Occupation Tax Act, the Municipal Use
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1 Tax Act, the Municipal Service Occupation Tax Act, the County
2 Retailers' Occupation Tax Act, the County Supplementary
3 Retailers' Occupation Tax Act, the County Service Occupation
4 Tax Act, the County Supplementary Service Occupation Tax Act,
5 the County Use Tax Act, the County Supplementary Use Tax Act,
6 Section 4 of the Water Commission Act of 1985, subsections
7 (b), (c) and (d) of Section 5.01 of the Local Mass Transit
8 District Act, or subsections (e), (f) and (g) of Section 4.03
9 of the Regional Transportation Authority Act, from such
10 assignee. However, as to any claim for credit or refund
11 filed with the Department on and after each January 1 and
12 July 1 no amount of tax or penalty or interest erroneously
13 paid (either in total or partial liquidation of a tax or
14 penalty or amount of interest under this Act) more than 3
15 years prior to such January 1 and July 1, respectively, shall
16 be credited or refunded, except that if both the Department
17 and the taxpayer have agreed to an extension of time to issue
18 a notice of tax liability as provided in Section 4 of this
19 Act, such claim may be filed at any time prior to the
20 expiration of the period agreed upon.
21 No claim may be allowed for any amount paid to the
22 Department, whether paid voluntarily or involuntarily, if
23 paid in total or partial liquidation of an assessment which
24 had become final before the claim for credit or refund to
25 recover the amount so paid is filed with the Department, or
26 if paid in total or partial liquidation of a judgment or
27 order of court. No credit may be allowed or refund made for
28 any amount paid by or collected from any claimant unless it
29 appears (a) that the claimant bore the burden of such amount
30 and has not been relieved thereof nor reimbursed therefor and
31 has not shifted such burden directly or indirectly through
32 inclusion of such amount in the price of the tangible
33 personal property sold by him or her or in any manner
34 whatsoever; and that no understanding or agreement, written
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1 or oral, exists whereby he or she or his or her legal
2 representative may be relieved of the burden of such amount,
3 be reimbursed therefor or may shift the burden thereof; or
4 (b) that he or she or his or her legal representative has
5 repaid unconditionally such amount to his or her vendee (1)
6 who bore the burden thereof and has not shifted such burden
7 directly or indirectly, in any manner whatsoever; (2) who, if
8 he or she has shifted such burden, has repaid unconditionally
9 such amount to his own vendee; and (3) who is not entitled to
10 receive any reimbursement therefor from any other source than
11 from his or her vendor, nor to be relieved of such burden in
12 any manner whatsoever. No credit may be allowed or refund
13 made for any amount paid by or collected from any claimant
14 unless it appears that the claimant has unconditionally
15 repaid, to the purchaser, any amount collected from the
16 purchaser and retained by the claimant with respect to the
17 same transaction under the Use Tax Act.
18 Any credit or refund that is allowed under this Section
19 shall bear interest at the rate and in the manner specified
20 in the Uniform Penalty and Interest Act.
21 In case the Department determines that the claimant is
22 entitled to a refund, such refund shall be made only from
23 such appropriation as may be available for that purpose. If
24 it appears unlikely that the amount appropriated would permit
25 everyone having a claim allowed during the period covered by
26 such appropriation to elect to receive a cash refund, the
27 Department, by rule or regulation, shall provide for the
28 payment of refunds in hardship cases and shall define what
29 types of cases qualify as hardship cases.
30 If a retailer who has failed to pay retailers' occupation
31 tax on gross receipts from retail sales is required by the
32 Department to pay such tax, such retailer, without filing any
33 formal claim with the Department, shall be allowed to take
34 credit against such retailers' occupation tax liability to
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1 the extent, if any, to which such retailer has paid an amount
2 equivalent to retailers' occupation tax or has paid use tax
3 in error to his or her vendor or vendors of the same tangible
4 personal property which such retailer bought for resale and
5 did not first use before selling it, and no penalty or
6 interest shall be charged to such retailer on the amount of
7 such credit. However, when such credit is allowed to the
8 retailer by the Department, the vendor is precluded from
9 refunding any of that tax to the retailer and filing a claim
10 for credit or refund with respect thereto with the
11 Department. The provisions of this amendatory Act shall be
12 applied retroactively, regardless of the date of the
13 transaction.
14 (Source: P.A. 89-359, eff. 8-17-95.)
15 Section 10. The Illinois Vehicle Code is amended by
16 changing Section 5-104.2 as follows:
17 (625 ILCS 5/5-104.2)
18 Sec. 5-104.2. Nonconforming vehicles; sale.
19 (a) Every manufacturer shall be prohibited from
20 reselling any motor vehicle that has been finally ordered,
21 determined, or adjudicated as having a nonconformity under
22 the New Vehicle Buyer Protection Act or a similar law of any
23 state, territory, or country, and that the manufacturer
24 repurchased or replaced because of the nonconformity, unless
25 the manufacturer has corrected the nonconformity and issues a
26 disclosure statement prior to resale stating that the vehicle
27 was repurchased or replaced under the New Vehicle Buyer
28 Protection Act or similar law of any other state, territory,
29 or country; identifying the nonconformity; and warranting
30 that the nonconformity has been corrected. The disclosure
31 statement must accompany the vehicle through the first retail
32 purchase.
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1 (b) "Nonconformity" refers to a new vehicle's failure to
2 conform to all express warranties applicable to the vehicle,
3 which failure substantially impairs the use, market value, or
4 safety of the vehicle.
5 (c) The disclosure statement referred to in subsection
6 (a) shall be in substantially the same form as below:
7 "IMPORTANT
8 Vehicle Identification Number (VIN): (Insert VIN Number);
9 Year: (Insert Year); Make (Insert Make); Model: (Insert
10 Model). This vehicle was previously sold as new. It was
11 subsequently ordered as having a nonconformity by final
12 decision of court proceeding or State run arbitration.
13 It was subsequently repurchased by its manufacturer
14 because it did not conform to the manufacturer's express
15 warranty and the nonconformity was not cured within a
16 reasonable time as provided by Illinois law. The
17 following nonconformities have been corrected (a minimum
18 of 5 numbered lines shall be provided to describe the
19 nonconformity or nonconformities)."
20 The customer shall sign the disclosure statement. This
21 disclosure language shall be in at least 8-point type.
22 (Source: P.A. 88-415.)
23 Section 15. The New Vehicle Buyer Protection Act is
24 amended by changing Sections 1, 2, 3, 4, and 7 as follows:
25 (815 ILCS 380/1) (from Ch. 121 1/2, par. 1201)
26 Sec. 1. This Act shall be known and may be cited as the
27 New Vehicle Buyer Protection Act.
28 (Source: P.A. 85-1350.)
29 (815 ILCS 380/2) (from Ch. 121 1/2, par. 1202)
30 Sec. 2. Definitions. For the purposes of this Act, the
31 following words have the meanings ascribed to them in this
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1 Section.
2 (a) "Consumer" means an individual who purchases or
3 leases for a period of at least one year a new or used
4 vehicle from the seller for the purposes of transporting
5 himself and others, as well as their personal property, for
6 primarily personal, household or family purposes.
7 (b) "Express warranty" has the same meaning, for the
8 purposes of this Act, as it has for the purposes of the
9 Uniform Commercial Code.
10 (c) "New vehicle" means a passenger car, as defined in
11 Section 1-157 of The Illinois Vehicle Code, a motor vehicle
12 of the Second Division having a weight of under 8,000 pounds,
13 as defined in Section 1-146 of that Code, and a recreational
14 vehicle, except for a camping trailer or travel trailer that
15 does not qualify under the definition of a used motor
16 vehicle, as set forth in Section 1-216 of that Code.
17 (d) "Nonconformity" refers to a new or used vehicle's
18 failure to conform to all express warranties applicable to
19 such vehicle, which failure substantially impairs the use,
20 market value or safety of that vehicle.
21 (e) "Seller" means the manufacturer of a new or used
22 vehicle, that manufacturer's agent or distributor or that
23 manufacturer's authorized dealer. "Seller" also means, with
24 respect to a new or used vehicle which is also a modified
25 vehicle, as defined in Section 1-144.1 of The Illinois
26 Vehicle Code, as now or hereafter amended, the person who
27 modified the vehicle and that person's agent or distributor
28 or that person's authorized dealer. "Seller" also means, with
29 respect to leased new or used vehicles, the manufacturer,
30 that manufacturer's agent or distributor or that
31 manufacturer's dealer, who transfers the right to possession
32 and use of goods under a lease.
33 (f) "Statutory warranty period" means the period of one
34 year or 12,000 miles, whichever occurs first after the date
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1 of the delivery of a new or used vehicle to the consumer who
2 purchased or leased it.
3 (g) "Lease cost" includes deposits, fees, taxes, down
4 payments, periodic payments, and any other amount paid to a
5 seller by a consumer in connection with the lease of a new or
6 used vehicle.
7 (h) "Used vehicle" has the same meaning as it has in the
8 Illinois Vehicle Code.
9 (Source: P.A. 89-375, eff. 8-18-95.)
10 (815 ILCS 380/3) (from Ch. 121 1/2, par. 1203)
11 Sec. 3. Failure of vehicle to conform; remedies;
12 presumptions.
13 (a) If after a reasonable number of attempts the seller
14 is unable to conform the new or used vehicle to any of its
15 applicable express warranties, the manufacturer shall either
16 provide the consumer with a new vehicle of like model line,
17 if the consumer's vehicle was a new vehicle and if available,
18 or otherwise a comparable motor vehicle as a replacement, or
19 accept the return of the vehicle from the consumer and refund
20 to the consumer the full purchase price or lease cost of the
21 new or used vehicle, including all collateral charges, less a
22 reasonable allowance for consumer use of the vehicle. For
23 purposes of this Section, "collateral charges" does not
24 include taxes paid by the purchaser on the initial purchase
25 of the new or used vehicle. The retailer who initially sold
26 the vehicle may file a claim for credit for taxes paid
27 pursuant to the terms of Sections 6, 6a, 6b, and 6c of the
28 Retailers' Occupation Tax Act. Should the vehicle be
29 converted, modified or altered in a way other than the
30 manufacturer's original design, the party which performed the
31 conversion or modification shall be liable under the
32 provisions of this Act, provided the part or parts causing
33 the vehicle not to perform according to its warranty were
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1 altered or modified.
2 (b) A presumption that a reasonable number of attempts
3 have been undertaken to conform a new or used vehicle to its
4 express warranties shall arise where, within the statutory
5 warranty period,
6 (1) the same nonconformity has been subject to
7 repair by the seller, its agents or authorized dealers
8 during the statutory warranty period, 4 or more times,
9 and such nonconformity continues to exist; or
10 (2) the vehicle has been out of service by reason
11 of repair of nonconformities for a total of 30 or more
12 business days during the statutory warranty period.
13 (c) A reasonable allowance for consumer use of a vehicle
14 is that amount directly attributable to the wear and tear
15 incurred by the new or used vehicle as a result of its having
16 been used prior to the first report of a nonconformity to the
17 seller, and during any subsequent period in which it is not
18 out of service by reason of repair.
19 (d) The fact that a new or used vehicle's failure to
20 conform to an express warranty is the result of abuse,
21 neglect or unauthorized modifications or alterations is an
22 affirmative defense to claims brought under this Act.
23 (e) The statutory warranty period of a new or used
24 vehicle shall be suspended for any period of time during
25 which repair services are not available to the consumer
26 because of a war, invasion or strike, or a fire, flood or
27 other natural disaster.
28 (f) Refunds made pursuant to this Act shall be made to
29 the consumer, and lien holder if any exists, as their
30 respective interests appear.
31 (g) For the purposes of this Act, a manufacturer sells a
32 new or used vehicle to a consumer when he provides that
33 consumer with a replacement vehicle pursuant to subsection
34 (a).
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1 (h) In no event shall the presumption herein provided
2 apply against a manufacturer, his agent, distributor or
3 dealer unless the manufacturer has received prior direct
4 written notification from or on behalf of the consumer, and
5 has an opportunity to correct the alleged defect.
6 (Source: P.A. 89-359, eff. 8-17-95; 89-375, eff. 8-18-95;
7 89-626, eff. 8-9-96.)
8 (815 ILCS 380/4) (from Ch. 121 1/2, par. 1204)
9 Sec. 4. (a) The provisions of subsection (a) of Section
10 3 shall not apply unless the consumer has first resorted to
11 an informal settlement procedure applicable to disputes to
12 which that subsection would apply where
13 (1) The manufacturer of the new or used vehicle has
14 established such a procedure;
15 (2) The procedure conforms:
16 (i) substantially with the provisions of Title 16, Code
17 of Federal Regulation, Part 703, as from time to time
18 amended, and
19 (ii) to the requirements of subsection (c); and
20 (3) The consumer has received from the seller adequate
21 written notice of the existence of the procedure.
22 Adequate written notice includes but is not limited to
23 the incorporation of the informal dispute settlement
24 procedure into the terms of the written warranty to which the
25 vehicle does not conform.
26 (b) If the consumer is dissatisfied with the decision
27 reached in an informal dispute settlement procedure or the
28 results of such a decision, he may bring a civil action to
29 enforce his rights under subsection (a) of Section 3. The
30 decision reached in the informal dispute settlement procedure
31 is admissible in such a civil action. The period of
32 limitations for a civil action to enforce a consumer's rights
33 or remedies under subsection (a) of Section 3 shall be
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1 extended for a period equal to the number of days the subject
2 matter of the civil action was pending in the informal
3 dispute settlement procedure.
4 (c) A disclosure of the decision in an informal dispute
5 settlement procedure shall include notice to the consumer of
6 the provisions of subsection (b).
7 (Source: P.A. 85-1350.)
8 (815 ILCS 380/7) (from Ch. 121 1/2, par. 1207)
9 Sec. 7. The seller who sells a new or used vehicle to a
10 consumer, shall, upon delivery of that vehicle to the
11 consumer, provide the consumer with a written statement
12 clearly and conspicuously setting forth in full detail the
13 consumer's rights under subsection (a) of Section 3, and the
14 presumptions created by subsection (b) of that Section.
15 (Source: P.A. 85-1350.)