AUTHORITY: Implementing the Automobile Renting Occupation and Use Tax Act [35 ILCS 155] and authorized by Section 2505-25 of the Civil Administrative Code of Illinois [20 ILCS 2505/2505-25].

SOURCE: Adopted and codified at 7 Ill. Reg. 9397, effective July 25, 1983; amended at 13 Ill. Reg. 9332, effective June 6, 1989; amended at 16 Ill. Reg. 4859, effective March 12, 1992; amended at 24 Ill. Reg. 12063, effective July 28, 2000; amended at 25 Ill. Reg. 8323, effective June 22, 2001; amended at 26 Ill. Reg. 4935, effective March 15, 2002; amended at 38 Ill. Reg. 12934, effective June 9, 2014.

SUBPART A: NATURE OF THE TAX

 

Section 180.101  Character And Rate Of The Tax

 

a)         The Automobile Renting Occupation and Use Tax Act [35 ILCS 155] (the Act) imposes a tax upon persons engaged in this State in the business of renting automobiles in Illinois under lease terms of one year or less at the rate of 5% of the gross receipts from such business. (Section 3 of the Act)

 

b)         "Automobile" means any motor vehicle of the first division that is used for automobile renting, as defined in the Act, or a motor vehicle of the second division that is used for automobile renting, as defined in the Act, and which 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; is of the van configuration designed for the transportation of not less than 7 nor more than 16 passengers, as defined in Section 1-146 of the Illinois Vehicle Code [625 ILCS 5/1-146]; or, beginning January 1, 2014, has a Gross Vehicle Weight Rating, as defined in Section 1-124.5 of the Illinois Vehicle Code, of 8,000 pounds or less. (Section 2 of the Act) This includes motorcycles and motor driven cycles.

 

1)         Under Section 1-146 of the Illinois Vehicle Code, a motor vehicle is defined as every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power and motorized wheelchairs.  [625 ILCS 5/1-146]

 

2)         Under Section 1-146 of the Illinois Vehicle Code, motor vehicles are classified as either first or second division motor vehicles.  The manner in which a vehicle is classified generally reflects the purpose for which it is primarily used.  As a result of this classification, a motor vehicle will be registered as either a first or second division vehicle, and will receive a plate reflecting such registration.  The following examples are illustrative:

 

A)        Under Section 1-146 of the Illinois Vehicle Code, first division motor vehicles are defined as motor vehicles which are designed for carrying not more than 10 persons.  [625 ILCS 5/1-146] Under Section 2 of the Act, all motor vehicles registered with the Secretary of State as first division motor vehicles qualify as automobiles subject to tax under the Act.  Consequently, passenger cars and motorcycles are "automobiles" subject to tax under the Act.

 

B)        Second division motor vehicles generally include motor vehicles serving purposes other than or in addition to serving as passenger cars. Second division vehicles include motor vehicles designed for pulling or carrying freight, cargo or implements of husbandry; motor vehicles designed for carrying more than 10 persons; motor vehicles designed or used for living quarters; and motor vehicles of the first division remodeled for use and used as motor vehicles of the second division.  [625 ILCS 5/1-146]  A pick-up truck is a second division vehicle because it is designed for pulling or carrying freight.  Section 2 of the Act provides that the only types of second division vehicles subject to tax include:

 

i)          self-contained motor vehicles 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;

 

ii)         motor vehicles which are of the van configuration designed for the transportation of not less than 7 nor more than 16 passengers; and

 

iii)        beginning January 1, 2014, a motor vehicle that has a Gross Vehicle Weight Rating, as defined in Section 1-124.5 of the Illinois Vehicle Code, of 8,000 pounds or less.

 

C)        Pick-up Trucks

 

i)          Until December 31, 2013, pick-up trucks are not subject to tax under the Act because they are not one of the types of second division motor vehicles specified as automobiles under the terms of the Act.

 

ii)         Beginning January 1, 2014, pick-up trucks are subject to tax under the Act only if they are one of the types of second division motor vehicles specified as automobiles under subsection (b)(2)(B)(iii).

 

D)        SUVs

 

i)          Multipurpose passenger vehicles, commonly referred to as "sport utility vehicles (SUVs)", may be registered as either first or second division motor vehicles.  If an SUV is registered as a first division motor vehicle, it is an automobile subject to tax under the Act.  Until December 31, 2013, if an SUV is registered as a second division motor vehicle, it is not an automobile subject to tax under the Act because it is not one of the types of second division motor vehicles specified as automobiles under the terms of the Act.

 

ii)         Beginning January 1, 2014, if an SUV is registered as a second division motor vehicle, it is an automobile subject to tax only if it is one of the types of second division motor vehicles specified as automobiles under subsection (b)(2)(B)(iii).

           

3)         Lessors engaged in the business of leasing motor vehicles that are not subject to tax under the Act generally incur a Use Tax liability on the cost price of motor vehicles purchased for leasing purposes.  For more information on the liability of lessors, see the provisions of 86 Ill. Adm. Code 130.220 and 130.2010.

 

c)         How To Determine Effective Rate

            Automobile Renting Occupation Tax liability shall be computed by applying to the gross receipts from taxable rental transactions, the tax rate in effect during the rentee's possession of the rented automobile. Where a rate change takes effect during a rentee's possession, all rental receipts received from that rentee after the effective date of the rate change are subject to the new rate.  If a rentee takes possession after a rate change in a rental transaction in which the rentor received rental receipts before the date of the rate change and the tax was paid on such receipts when received by the rentor at the rate in effect when the rentor received those receipts, no additional tax will be due or credit allowed because the rentee took possession after the effective date of the rate change.

 

d)         Effective Date of New Taxes

            When something that has been exempted becomes taxable as to rental transactions that are made on and after some particular date, the date of rental for this purpose shall be deemed to be the date of possession or right to possession of the automobile.  This is true even if such possession is taken under a contract that was entered into before the effective date of the new tax.

 

e)         Relation of Automobile Renting Occupation Tax To The Automobile Renting Use Tax

 

1)         The Automobile Renting Occupation Tax is an occupation tax, the legal incidence of which is on the rentor rather than on the rentee.

 

2)         However, the rentor becomes a tax collector under the Automobile Renting Use Tax and is required to collect that tax from rentees.  In making that collection, rentors may rely on the tax collection schedules prescribed in the Department's Use Tax Regulations for the collection of the Use Tax by retailers from users.  Consequently, the tax collection schedules set out in 86 Ill. Adm. Code 150.Table A are incorporated by reference herein.

 

(Source:  Amended at 38 Ill. Reg. 12934, effective June 9, 2014)

 

Section 180.105  Responsibility Of Trustees, Receivers, Executors Or Administrators

 

Where trustees, receivers, executors or administrators (whether appointed by a Federal or a State court), by virtue of their appointment, continue to operate, manage or control a business and engage in the business of renting automobiles under lease terms of one year or less, they are liable for the Automobile Renting Occupation Tax.

 

Section 180.110  Occasional Rental Transactions

 

Since the Act does not impose a tax upon persons who are not engaged in the business of renting automobiles, persons who enter into isolated or occasional rental transactions do not incur Automobile Renting Occupation Tax liability.

 

Section 180.115  Habitual Rental Transactions

 

Any person who habitually engages in renting automobiles under lease terms of one year or less, or who, in any manner or at any time, advertises, solicits, offers for rent or holds himself out to the public to be a rentor of automobiles under lease terms of one year or less is engaged in the business that is taxed by the Act, provided that such person is engaged in such business in this State.

SUBPART B: GROSS RECEIPTS, AUTHORIZED DEDUCTIONS AND NON-TAXABLE TRANSACTIONS

 

Section 180.120  The Meaning of Gross Receipts

 

a)         "Gross receipts" means all consideration received by a rentor as the rental price for the rental of automobiles under lease terms of one year or less.  Where a rentor receives the rental price in installment payments, the rentor shall include the amounts of such payments only as and when the payments are received by the rentor.

 

b)         All consideration received as the rental price must be included in gross receipts whether received in money or otherwise, including cash, credits, property and services. (Ill. Rev. Stat. 1981, ch. 120, par. 1702.)

 

c)         There is no deduction from gross receipts on account of the cost of the property rented, the cost of materials used, labor or service cost or any other expense whatever.

 

Section 180.125  Authorized Deductions from Gross Receipts

 

a)         "Gross receipts" on which the Automobile Renting Occupation Tax must be computed do not include receipts from the following separately stated charges added to rentees' billings:

 

1)         charges added on account of the rentor's duty to collect the Automobile Renting Use Tax from rentees or passed on because of the rentor's liability under the Automobile Renting Occupation Tax or passed on because of the rentor's liability under Municipal, County, Regional Transportation Authority or Metro East Mass Transit District Automobile Renting Occupation Taxes;

 

2)         receipts from rentees in consideration of waivers of claims for loss or damage to automobiles rented;

 

3)         receipts from separately stated charges for insurance;

 

4)         receipts from separately stated charges for recovery of refueling costs;

 

5)         receipts from any other separately stated charges which are not for the use of tangible personal property.

 

b)         Effective July 20, 1999, "gross receipts" does not include receipts received by an automobile dealer from a manufacturer or service contract provider for the use of an automobile by a person while that person's automobile is being repaired by that automobile dealer and the repair is made pursuant to a manufacturer's warranty or a service contract where a manufacturer or service contract provider reimburses that automobile dealer pursuant to a manufacturer's warranty or a service contract and the reimbursement is merely made to recover the costs of operating the automobile as a loaner vehicle. [35 ILCS 155/2]

 

1)         For example, an automobile dealer makes repairs for an automobile owner under the terms of a manufacturer's warranty.   The manufacturer's warranty provides that the manufacturer will provide the owner with another automobile to drive while the owner's automobile is being repaired.  Pursuant to the terms of an agreement between the manufacturer and the dealer, the dealer provides the owner with a replacement automobile either from its sales inventory or from its rental inventory.  In exchange, the manufacturer compensates the dealer for that replacement automobile.  However, under the terms of the agreement between the manufacturer and the dealer, that compensation is limited to an amount intended only to reimburse the dealer for the dealer's costs of operating the replacement automobile as a loaner vehicle.  Compensation paid to a dealer by a manufacturer or service contract provider under these circumstances that merely reimburses the dealer for his cost of operating the replacement automobile as a loaner vehicle is not subject to the tax.  However, if the dealer charges a customer amounts that exceed the compensation paid to him by the manufacturer or service contract provider as reimbursement for the cost of operating the replacement vehicle as a loaner vehicle, the excess receipts are subject to the tax.

 

A)        Costs of operating the replacement automobile as a loaner vehicle may include the cost of paperwork to issue the loaner vehicle or to receive reimbursement from the manufacturer; time needed by the dealership employee to fill out the paperwork; preparing the loaner; giving keys to the customer; instructing the customer on use and when to return the loaner; depreciation of the loaner vehicle; cost of insurance on the loaner vehicle; needed time and materials used to clean the loaner vehicle when returned; and fueling and servicing the loaner vehicle.

 

B)        In order to exclude receipts from a manufacturer or service contract provider that merely reimburse him for his costs of operating the replacement automobile as a loaner vehicle, a dealer must maintain books and records documenting such costs.

 

2)         Sometimes, the dealer does not provide the owner with a replacement automobile from its own inventory.  Rather, the automobile dealer rents an automobile from a separate automobile rentor and then provides that automobile to the owner whose automobile is being repaired pursuant to the manufacturer's warranty.  In this situation, the dealer's rental from the automobile rentor is a non-taxable rental so long as all the requirements of Section 180.135 of this Part are satisfied.  The dealer's subsequent provision of an automobile to the owner is non-taxable so long as the requirements of this subsection (b) are satisfied.

 

3)         If an owner rents an automobile from an automobile rentor that is not the dealer making the repairs to his automobile, the exclusion set out in this subsection (b) is not available.  In addition:

 

A)        The exclusion does not apply even though the dealer reimburses the owner for the rental.

 

B)        The exclusion does not apply even though the automobile rentor is a separate entity related to the automobile dealer.  For example, if one person operates an automobile dealership as one corporation and an automobile rental business as a separate corporation, the procedure set out in subsection (b)(2) must be followed in order for the exclusion to apply.

 

(Source:  Amended at 25 Ill. Reg. 8323, effective June 22, 2001)

 

Section 180.130  Nontaxable Transactions

 

The tax does not apply to rental receipts from the following transactions:

 

a)         The renting of automobiles to any governmental body, nor to any corporation, society, association, foundation or institution organized and operated exclusively for charitable, religious or educational purposes, nor to any not-for-profit corporation, society, association, foundation, institution or organization which has no compensated officers or employees and which is organized and operated primarily for the recreation of persons 55 years or older (Section 3 of the Act);

 

b)         isolated or occasional automobile renting transactions;

 

c)         the renting of automobiles under lease terms of more than one year;

 

d)         the renting of motor vehicles which do not fall within the definition of automobile as set forth in Subsection 180.101(b);

 

e)         transactions protected by the Commerce Clause of the United States Constitution (U.S. Const. art. 1, sec. 8, cl. 3);

 

f)         transactions in which the rentor furnishes the service of operating the automobile, so that the rentor or the rentor's agent remains in possession of the automobile;

 

g)         transactions in which an automobile dealer makes a charge for the use of an automobile as a demonstrator in connection with that dealer's business of selling automobiles so long as the charge is made only to recover the costs of operating the automobile as a demonstrator; nor

 

h)         the renting of automobiles under lease terms of one year or less to persons who will re-rent those automobiles to others under lease terms of one year or less.

 

(Source:  Amended at 16 Ill. Reg. 4859, effective March 12, 1992)

 

Section 180.135  Rentals for Re-rental

 

a)         Rental receipts from rental transactions under lease terms of one year or less in which the rentee will act as a sub-rentor by re-renting the automobile to a sub-rentee under lease terms of one year or less are exempt from the Automobile Renting Occupation Tax.

 

b)         In order to document that an auto rental transaction is an exempt rental for re-rental, the rentor must have among his records a Certificate of Automobile Re-rental from the rentee (sub-rentor) which contains the following information:

 

1)         a short statement by the rentee that the automobile is being rented for the purpose of re-renting it to others (sub-rentees) under lease terms of one year or less;

 

2)         the rentor's name and address;

 

3)         the rentee's name and address;

 

4)         the rentee's signature and date of signing;

 

5)         the Vehicle Identification Number(s) of the automobile(s) rented for re-rental;

 

6)         the rentee's Automobile Renting Occupation Tax or Retailers' Occupation Tax registration number issued by the Illinois Department of Revenue.

 

A)        However, in the case of an out-of-State rentee (sub-rentor) who is not required to be so registered in Illinois, a certification that he will always re-rent and deliver the automobile(s) to his sub-rentee(s) outside Illinois pursuant to a rental agreement entered into outside Illinois may be provided in lieu of an Illinois Automobile Renting Occupation Tax registration number.

 

B)        Except in the case of an out-of-State rentee (sub-rentor) not required to be registered who will re-rent and deliver outside Illinois, no rental shall be made tax-free on the ground of being a rental for re-rental unless the rentee (sub-rentor) has an active registration number from the Department and furnishes that number to the rentor as part of the Certificate of Automobile Re-rental.

 

c)         If all of the automobiles rented under lease terms of one year or less to a particular rentee will be re-rented by that rentee (sub-rentor) to others (sub-rentees) under lease terms of one year or less, the rentor may take a blanket Certificate of Automobile Re-rental from that rentee (sub-rentor).  Where a blanket Certificate of Automobile Re-rental is accepted, the rentor must maintain a record of all automobiles by Vehicle Identification Number rented tax-free on the basis of that blanket Certificate of Automobile Re-rental.

 

(Source:  Amended at 25 Ill. Reg. 8323, effective June 22, 2001)

SUBPART C: RETURNS

 

Section 180.140  Monthly Tax Returns – When Due – Contents

 

a)         On or before the twentieth day of each calendar month, every person engaged in the business of renting automobiles in this State during the preceding calendar month shall file a return with the Department for such preceding month, stating the name of the rentor; his residence address and the address of the principal place of business (if that is a different address) from which he engages in the business of renting automobiles in this State.  Under the same circumstances set out in 86 Ill. Adm. Code 130.510, the Department may authorize the filing of returns on an annual basis.  However, all taxpayers are required to file monthly returns unless specifically authorized to file on an annual basis.

 

b)         The return shall:

 

1)         disclose total receipts for the month from the renting of automobiles; and

 

2)         itemize deductions authorized by law:

 

A)        receipts from rentals to governmental bodies (federal, State, local or foreign) or to any organization which is exclusively charitable, religious or educational, or to any not-for-profit organization which has no compensated officers or employees and which is organized and operated primarily for the recreation of persons 55 years or older;

 

B)        receipts from rentals of automobiles under lease terms of more than one year;

 

C)        receipts from rental transactions which are within the protection of the Commerce Clause of the Constitution of the United States;

 

D)        receipts from rentals of automobiles under lease terms of one year or less to rentees who will re-rent those automobiles to others under lease terms of one year or less;

 

E)        receipts from rentees in consideration of waivers of claims for loss or damage to automobiles rented;

 

F)         receipts from separately stated charges for insurance;

 

G)        receipts from separately stated charges for recovery of refueling costs; and

 

H)        any other deductions authorized by law; however, no deduction may be taken on account of the cost of the property rented, the cost of materials used, labor or service or any other expense whatsoever.

 

3)         disclose total deductions authorized by law;

 

4)         disclose total receipts from taxable transactions, including amounts collected from rentees in the form of Automobile Renting Use Tax or passed on because of the Automobile Renting Occupation Tax or passed on because of local Automobile Renting Occupation Taxes (i.e., Municipal, County, Regional Transportation Authority or Metro East Mass Transit District Automobile Renting Occupation Taxes);

 

5)         deduct the amount collected from rentees in the form of Automobile Renting Use Tax or passed on because of the Automobile Renting Occupation Tax or passed on because of local Automobile Renting Occupation Taxes;

 

6)         disclose the rental receipts subject to tax;

 

7)         disclose the amount of State tax due;

 

8)         disclose the balance of tax due; and

 

9)         disclose the amount of penalty (if any) that is due and the total of the tax and penalty due.

 

c)         As to the Automobile Renting Occupation Tax, the taxpayer may deduct 1.75% thereof as an allowance to reimburse the taxpayer for expenses incurred in keeping records, preparing and filing returns, remitting the tax and supplying data to the Department on request.  The minimum discount, over the entire period of any given calendar year, for any single taxpayer (if the taxpayer incurs that much tax liability) shall be $5.00 for such calendar year.  This allowance is available when the tax remitted is with a return that is filed when due under the Act, but is not available in any case in which the tax is paid late (with or without a return, and whether formally assessed by the Department or not).

 

(Source:  Amended at 16 Ill. Reg. 4859, effective March 12, 1992)

SUBPART D: INCORPORATION BY REFERENCE

 

Section 180.145  Incorporation of Certain Retailers' Occupation Tax Regulations

 

The substance and provisions of the Illinois Retailers' Occupation Tax Regulations cited in this Part are incorporated herein by reference and are made a part hereof.

 

a)         For purposes of this incorporation, references in the incorporated Retailers' Occupation Tax Regulations to:

 

1)         persons engaged in the business of selling tangible personal property at retail mean persons engaged in the business of renting automobiles for periods of one year or less for valuable consideration;

 

2)         sellers and retailers mean automobile rentors;

 

3)         users or purchasers mean rentees;

 

4)         sales or sales at retail mean automobile rentals under lease terms of one year or less; and

 

5)         the Retailers' Occupation Tax Act means the Automobile Renting Occupation Tax Act.

 

b)         On that basis, the following Sections and Subparts of 86 Ill. Adm. Code are incorporated herein:

 

130.505(a)

 

130.510

 

130.515

 

130.520

 

130.525

 

130.530 except that references to Retailers' Occupation Tax Return Form ST-1 shall mean Automobile Renting Occupation Tax Return Form ART-1 and except that references to Form ST-2 shall mean Form ART-2.

 

130.535(a)

 

130.545

 

Subpart F except Subsection 130.605(a)(4), except Subsection 130.605(e)(2) and except that references to "offers to sell" and "offers or counteroffers to purchase" shall all mean "offers to rent".

 

Subpart G except for Subsection 130.701(e) and except for Section 130.740.

 

Subpart H except for the reference to services in Subsection 130.810(a) and except for the reference to resale number in Subsection 130.810(c).  In addition, the reference to exemptions from Retailers' Occupation Tax in Subsection 130.810(a) means exemptions from Automobile Renting Occupation Tax and references to "sale(s) for resale" and "resell" in Section 130.810 mean "automobile rental(s) for re-rental under lease terms of one year or less" and "re-rent".

 

Subpart I except for those provisions in Section 130.905(a) and (b) which refer to interest being due at less than 2% per month.

 

Subpart J

 

Subpart K

 

Subpart L

 

Subpart M

 

Subpart O

 

Subpart P except for Section 130.1605

 

Subpart Q

 

Subpart R

 

130.2005(d)(2) and (e) through (r) except that reference to suppliers of nonprofit organizations shall mean persons who rent automobiles to nonprofit organizations under lease terms of one year or less.

 

(Source:  Amended at 16 Ill. Reg. 4859, effective March 12, 1989)