Public Act 098-0446
 
HB2752 EnrolledLRB098 10671 HLH 40974 b


  
    AN ACT concerning State government.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 5. The Illinois Income Tax Act is amended  by 
changing Section 1101 as follows:
 



    (35 ILCS 5/1101)  (from Ch. 120, par. 11-1101)


    Sec. 1101. Lien for Tax. 
    (a) If any person liable to pay any tax
neglects or refuses 
to pay the same after demand, the amount (including any

interest, additional amount,
addition to tax, or assessable 
penalty, together with any costs that may
accrue in addition 
thereto) shall be a lien in favor of the State of
Illinois upon 
all property and rights to property, whether real or
personal, 
belonging to such person.

    (b) Unless another date is specifically fixed by law, the 
lien imposed
by subsection (a) of this Section shall arise at 
the time the assessment is
made and shall continue until the 
liability for the amount so assessed (or
a judgment against the 
taxpayer arising out of such liability) is satisfied
or becomes 
unenforceable by reason of lapse of time.

    (c) Deficiency procedure. If the lien arises from an 
assessment
pursuant to a notice of deficiency, such lien shall 
not attach and the
notice referred to in this section shall not 
be filed until all proceedings
in court for review of such 
assessment have terminated or the time for the
taking thereof 
has expired without such proceedings being instituted.

    (d) Notice of lien.  The lien created by assessment shall

terminate unless a notice of lien is filed, as provided in 
section 1103 hereof,
within 3 years from the date all 
proceedings in court for the review of
such assessment have 
terminated or the time for the taking thereof has
expired 
without such proceedings being instituted. Where the lien 
results
from the filing of a return without payment of the tax 
or penalty shown
therein to be due, the lien shall terminate 
unless a notice of lien is
filed within 3 years from the date 
such return was filed with the
Department.
For the purposes of 
this subsection (d), a tax return filed before the last
day 
prescribed by law, including any extension thereof, shall be 
deemed to
have been filed on such last day. The time limitation 
period on the Department's right to file a notice of lien shall 
not run (1) during any period of time in which the order of any 
court has the effect of enjoining or restraining the Department 
from filing such notice of lien, or (2) during the term of a 
repayment plan that taxpayer has entered into with the 
Department, as long as taxpayer remains in compliance with the 
terms of the repayment plan. 

(Source: P.A. 97-507, eff. 8-23-11.)

 
    Section 10. The Retailers' Occupation Tax Act is amended  by 
changing Section 5a as follows:
 



    (35 ILCS 120/5a)  (from Ch. 120, par. 444a)



    Sec. 5a. 
The Department shall have a lien for the tax 
herein imposed or any
portion thereof, or for any penalty 
provided for in this Act, or for any
amount of interest which 
may be due as provided for in Section 5 of this
Act, upon all 
the real and personal property of any person to whom a
final 
assessment or revised final assessment has been issued as 
provided in
this Act, or whenever a return is filed without 
payment of the tax or
penalty shown therein to be due, 
including all such property of such
persons acquired after 
receipt of such assessment or filing of such return.
The 
taxpayer is liable for the filing fee incurred by the 
Department for
filing the lien and the filing fee incurred by 
the Department to file the
release of that lien. The filing 
fees shall be paid to the Department in
addition to payment of 
the tax, penalty, and interest included in the amount of
the 
lien.

    However, where the lien arises because of the issuance of a 
final
assessment or revised final assessment by the Department, 
such lien shall
not attach and the notice hereinafter referred 
to in this Section shall not
be filed until all proceedings in 
court for review of such final assessment
or revised final 
assessment have terminated or the time for the taking
thereof 
has expired without such proceedings being instituted.

    Upon the granting of a rehearing or departmental review 
pursuant to
Section 4 or Section 5 of this Act after a lien has 
attached, such lien
shall remain in full force except to the 
extent to which the final
assessment may be reduced by a 
revised final assessment following such
rehearing or review.

    The lien created by the issuance of a final assessment 
shall terminate
unless a notice of lien is filed, as provided 
in Section 5b hereof,
within 3 years from the date all 
proceedings in court for the review of
such final assessment 
have terminated or the time for the taking thereof
has expired 
without such proceedings being instituted, or (in the case of a

revised final assessment issued pursuant to a rehearing or 
departmental
review) within 3 years from the date all 
proceedings in court for the
review of such revised final 
assessment have terminated or the time for the
taking thereof 
has expired without such proceedings being instituted; and

where the lien results from the filing of a return without 
payment of the
tax or penalty shown therein to be due, the lien 
shall terminate unless a
notice of lien is filed, as provided 
in Section 5b hereof, within 3 years
from the date when such 
return is filed with the Department: Provided that
the time 
limitation period on the Department's right to file a notice of

lien shall not run (1) during any period of time in which the 
order of any
court has the effect of enjoining or restraining 
the Department from filing
such notice of lien, or (2) during 
the term of a repayment plan that taxpayer has entered into 
with the Department, as long as taxpayer remains in compliance 
with the terms of the repayment plan.

    If the Department finds that a taxpayer is about to depart 
from the
State, or to conceal himself or his property, or to do 
any other act
tending to prejudice or to render wholly or 
partly ineffectual proceedings
to collect such tax unless such 
proceedings are brought without delay, or
if the Department 
finds that the collection of the amount due from any
taxpayer 
will be jeopardized by delay, the Department shall give the

taxpayer notice of such findings and shall make demand for 
immediate return
and payment of such tax, whereupon such tax 
shall become immediately due
and payable. If the taxpayer, 
within 5 days after such notice (or within
such extension of 
time as the Department may grant), does not comply with
such 
notice or show to the Department that the findings in such 
notice are
erroneous, the Department may file a notice of 
jeopardy assessment lien in
the office of the recorder of the 
county in which any property of
the taxpayer may be located and 
shall notify the taxpayer of such filing.
Such jeopardy 
assessment lien shall have the same scope and effect as the

statutory lien hereinbefore provided for in this Section.

    If the taxpayer believes that he does not owe some or all 
of the tax for
which the jeopardy assessment lien against him 
has been filed, or that no
jeopardy to the revenue in fact 
exists, he may protest within 20 days after
being notified by 
the Department of the filing of such jeopardy assessment
lien 
and request a hearing, whereupon the Department shall hold a 
hearing
in conformity with the provisions of this Act and, 
pursuant thereto, shall
notify the taxpayer of its findings as 
to whether or not such jeopardy
assessment lien will be 
released. If not, and if the taxpayer is aggrieved
by this 
decision, he  may file an action for judicial review
of such 
final
determination of the Department in accordance with 
Section 12 of this Act
and the Administrative Review Law. 
    On and after July 1, 2013, protests concerning matters that 
are subject to the jurisdiction of the Illinois Independent Tax 
Tribunal shall be filed with the  Tribunal, and hearings on 
those matters shall be held before the Tribunal in accordance 
with the Illinois Independent Tax Tribunal Act of 2012.  The 
Tribunal shall
notify the taxpayer of its findings as to 
whether or not such jeopardy
assessment lien will be released. 
If not, and if the taxpayer is aggrieved
by this decision, he  
may file an action for judicial review
of such final

determination of the Department in accordance with Section 12 
of this Act
and the Illinois Independent Tax Tribunal Act of 
2012. 
    With respect to protests filed with the Department prior to 
July 1, 2013 that would otherwise be subject to the 
jurisdiction of the Illinois Independent Tax Tribunal, the 
taxpayer may elect to be subject to the provisions of the 
Illinois Independent Tax Tribunal Act of 2012 at any time on or 
after July 1, 2013, but not later than 30 days after the date 
on which the protest was filed.  If made, the election shall be 
irrevocable. 

    If, pursuant to such hearing (or after an independent 
determination of
the facts by the Department without a 
hearing), the Department or the Tribunal determines
that some 
or all of the tax covered by the jeopardy assessment lien is 
not
owed by the taxpayer, or that no jeopardy to the revenue 
exists, or if on
judicial review the final judgment of the 
court is that the taxpayer does
not owe some or all of the tax 
covered by the jeopardy assessment lien
against him, or that no 
jeopardy to the revenue exists, the Department
shall release 
its jeopardy assessment lien to the extent of such finding of

nonliability for the tax, or to the extent of such finding of 
no jeopardy
to the revenue.

    The Department shall also release its jeopardy assessment 
lien against
the taxpayer whenever the tax and penalty covered 
by such lien, plus any
interest which may be due, are paid
and 
the taxpayer has paid the Department in cash or by guaranteed 
remittance
an amount representing the filing fee for the lien 
and the filing fee for the
release of that lien. The Department 
shall file that release of lien with the
recorder of the county 
where that lien was filed.

    Nothing in this Section shall be construed to give the 
Department a
preference over the rights of any bona fide 
purchaser, holder of a
security interest, mechanics 
lienholder, mortgagee, or judgment lien
creditor arising prior 
to the filing of a regular
notice of lien or a notice of 
jeopardy assessment lien in the office of the
recorder in the 
county in which the property subject to the lien
is located: 
Provided, however, that the word "bona fide", as used in this

Section shall not include any mortgage of real or personal 
property or any
other credit transaction that results in the 
mortgagee or the holder of the
security acting as trustee for 
unsecured creditors of the taxpayer
mentioned in the notice of 
lien who executed such chattel or real property
mortgage or the 
document evidencing such credit transaction. Such lien
shall be 
inferior to the lien of general taxes, special assessments and

special taxes heretofore or hereafter levied by any political 
subdivision
of this State.

    In case title to land to be affected by the notice of lien 
or notice of
jeopardy assessment lien is registered under the 
provisions of "An Act
concerning land titles", approved May 1, 
1897, as amended, such notice
shall be filed in the office of 
the Registrar of Titles of the county
within which the property 
subject to the lien is situated and shall be
entered upon the 
register of titles as a memorial or charge upon each
folium of 
the register of titles affected by such notice, and the

Department shall not have a preference over the rights of any 
bona fide
purchaser, mortgagee, judgment creditor or other lien 
holder arising prior
to the registration of such notice: 
Provided, however, that the word "bona
fide" shall not include 
any mortgage of real or personal property or any
other credit 
transaction that results in the mortgagee or the holder of the

security acting as trustee for unsecured creditors of the 
taxpayer
mentioned in the notice of lien who executed such 
chattel or real property
mortgage or the document evidencing 
such credit transaction.

    Such regular lien or jeopardy assessment lien shall not be 
effective
against any purchaser with respect to any item in a 
retailer's stock in
trade purchased from the retailer in the 
usual course of such retailer's
business.

(Source: P.A. 97-1129, eff. 8-28-12.)

 
 
    Section 99. Effective date. This Act takes effect upon 
becoming law.