093_HB3187

 
                                     LRB093 06358 SJM 06477 b

 1        AN ACT concerning taxes.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The Cigarette Tax Act is amended by changing
 5    Sections 1, 2, 3, 4, 4a, 4b, 5, 6, 7, 9, 9a, 9c, 9d, 10b, 11,
 6    13, 14, 15, 18, 18a, 18b, 18c, 20, 21, 22, 23, 24, and 25 and
 7    adding Sections 0.01, 13a, 15a,  15b,  18d,  31,  and  32  as
 8    follows:

 9        (35 ILCS 130/0.01 new)
10        Sec.  0.01.  Short  title.  This  Act may be cited as the
11    Cigarette Tax Act.

12        (35 ILCS 130/1) (from Ch. 120, par. 453.1)
13        Sec. 1. For the purposes of this Act:
14        "Cigarette", when used in this Act, shall be construed to
15    mean: Any roll for smoking made wholly or in part of  tobacco
16    irrespective of size or shape and whether or not such tobacco
17    is  flavored, adulterated or mixed with any other ingredient,
18    and the wrapper or cover of which is made  of  paper  or  any
19    other substance or material except tobacco.
20        "Person" means any natural individual, firm, partnership,
21    association,  joint stock company, joint adventure, public or
22    private  corporation,  however  formed,   limited   liability
23    company,  or  a  receiver,  executor, administrator, trustee,
24    guardian or other representative appointed by  order  of  any
25    court.
26        "Prior  Continuous Compliance Distributor Taxpayer" means
27    any distributor person who is licensed  under  this  Act  and
28    who,  having  been  a  licensee  for a continuous period of 5
29    years, is determined by  the  Department  not  to  have  been
30    either   delinquent  or  deficient  in  the  payment  of  tax
 
                            -2-      LRB093 06358 SJM 06477 b
 1    liability during that period or  otherwise  in  violation  of
 2    this  Act.   Also,  any  distributor  taxpayer  who  has,  as
 3    verified  by  the  Department, continuously complied with the
 4    condition of his bond or other security under  provisions  of
 5    this  Act  for  a  period  of  5  consecutive  years shall be
 6    considered to be a "Prior continuous  compliance  distributor
 7    taxpayer".   In  calculating  the  consecutive period of time
 8    described herein for qualification  as  a  "prior  continuous
 9    compliance  distributor  taxpayer",  a  consecutive period of
10    time  of  qualifying  compliance  immediately  prior  to  the
11    effective date of  this  amendatory  Act  of  1987  shall  be
12    credited to any licensee who became licensed on or before the
13    effective date of this amendatory Act of 1987.
14        "Department" means the Department of Revenue.
15        "Sale"  means  any  transfer,  exchange  or barter in any
16    manner or by any means whatsoever for  a  consideration,  and
17    includes and means all sales made by any person.
18        "Original  Package"  means  the individual packet, box or
19    other  container whatsoever used to  contain  and  to  convey
20    cigarettes to the consumer.
21        "Consumer"  means  any person who acquires cigarettes for
22    consumption or use in this State and not for resale.
23        "Distributor" means any person, whether located within or
24    outside of this State, other than a  licensed  retailer,  who
25    sells  or  distributes  cigarettes within or into this State.
26    "Distributor" does not include  any  cigarette  manufacturer,
27    export  warehouse proprietor, or importer with a valid permit
28    under 26 U.S.C. 5712 if  that  person  sells  or  distributes
29    cigarettes in this State only to licensed distributors, or to
30    an export warehouse proprietor or another manufacturer with a
31    valid permit under 26 U.S.C. 5712.
32        "Importer"  means  any person who imports into the United
33    States, either directly or indirectly, a  finished  cigarette
34    for sale or distribution.
 
                            -3-      LRB093 06358 SJM 06477 b
 1        "Licensed",  when  used with reference to a manufacturer,
 2    importer, or retailer, means only those persons  who  hold  a
 3    valid and current license issued under Section 4 for the type
 4    of business being engaged in and, when used with reference to
 5    a  distributor, means only those persons who hold a valid and
 6    current  license  issued  under  Section  4.  When  the  term
 7    "licensed" is  used  before  a  list  of  entities,  such  as
 8    "licensed manufacturer, importer, wholesale dealer, or retail
 9    dealer", that term shall be deemed to apply to each entity in
10    the list.
11        "Manufacturer"  means any person who makes, manufactures,
12    or fabricates cigarettes.
13        "Stamp" or "stamps" means  the  indicia  required  to  be
14    placed  on  a cigarette package that evidences payment of the
15    tax on cigarettes imposed under Section 2.
16        "Distributor" means any and each of the following:
17        (1)  Any  person  engaged  in  the  business  of  selling
18    cigarettes in this State who brings or causes to  be  brought
19    into this State from without this State any original packages
20    of  cigarettes,  on  which  original  packages  there  is  no
21    authorized  evidence  underneath a sealed transparent wrapper
22    showing that the tax liability imposed by this Act  has  been
23    paid   or   assumed   by  the  out-of-State  seller  of  such
24    cigarettes, for sale or other disposition in  the  course  of
25    such business.
26        (2)  Any  person  who  makes,  manufactures or fabricates
27    cigarettes in this State for sale in  this  State,  except  a
28    person  who makes, manufactures or fabricates cigarettes as a
29    part  of  a  correctional  industries  program  for  sale  to
30    residents incarcerated  in  penal  institutions  or  resident
31    patients of a State-operated mental health facility.
32        (3)  Any  person  who  makes,  manufactures or fabricates
33    cigarettes outside this State, which cigarettes are placed in
34    original packages contained in sealed  transparent  wrappers,
 
                            -4-      LRB093 06358 SJM 06477 b
 1    for  delivery  or shipment into this State, and who elects to
 2    qualify and is accepted by the Department  as  a  distributor
 3    under Section 4b of this Act.
 4        "Place  of  business"  shall  mean  and include any place
 5    where  cigarettes  are   sold   or   where   cigarettes   are
 6    manufactured,  stored  or  kept  for  the  purpose of sale or
 7    consumption, including any vessel, vehicle,  airplane,  train
 8    or vending machine.
 9        "Business"  means  any  trade,  occupation,  activity  or
10    enterprise  engaged  in for the purpose of selling cigarettes
11    in this State.
12        "Retailer" means any person, whether  located  within  or
13    outside  the State, who engages in the making of transfers of
14    the ownership of, or title to, cigarettes to a purchaser  for
15    use  or  consumption  and  not  for resale in any form, for a
16    valuable consideration, except  a  person  who  transfers  to
17    residents  incarcerated  in  penal  institutions  or resident
18    patients of a State-operated mental health facility ownership
19    of cigarettes made, manufactured, or fabricated as part of  a
20    correctional industries program.
21        "Retailer"  shall  be construed to include any person who
22    engages in the making of transfers of the  ownership  of,  or
23    title  to,  cigarettes to a purchaser, for use or consumption
24    by any other person to whom such purchaser may  transfer  the
25    cigarettes  without a valuable consideration, except a person
26    who transfers to residents incarcerated in penal institutions
27    or  resident  patients  of  a  State-operated  mental  health
28    facility  ownership  of  cigarettes  made,  manufactured   or
29    fabricated as part of a correctional industries program.
30    (Source: P.A. 88-480.)

31        (35 ILCS 130/2) (from Ch. 120, par. 453.2)
32        Sec.  2.   Tax  imposed;  rate;  collection, payment, and
33    distribution; discount.
 
                            -5-      LRB093 06358 SJM 06477 b
 1        (a)  A tax is imposed upon the sale  or  consumption  any
 2    person  engaged  in  business  as a retailer of cigarettes in
 3    this State at the rate of 5 1/2 mills per cigarette sold,  or
 4    otherwise  disposed of in the course of such business in this
 5    State. In addition to any other tax imposed by  this  Act,  a
 6    tax  is  imposed  upon  the  sale  or  consumption any person
 7    engaged in business as a retailer of cigarettes in this State
 8    at a rate  of  1/2  mill  per  cigarette  sold  or  otherwise
 9    disposed  of  in the course of such business in this State on
10    and after January  1,  1947,  and  shall  be  paid  into  the
11    Metropolitan  Fair  and  Exposition  Authority Reconstruction
12    Fund. On and after December 1, 1985, in addition to any other
13    tax imposed by this Act, a tax is imposed upon  the  sale  or
14    consumption  any  person engaged in business as a retailer of
15    cigarettes in this State at a rate of 4 mills  per  cigarette
16    sold  or otherwise disposed of in the course of such business
17    in  this  State.  Of  the  additional  tax  imposed  by  this
18    amendatory Act of 1985, $9,000,000 of the moneys received  by
19    the  Department of Revenue pursuant to this Act shall be paid
20    each month into the Common School  Fund.  On  and  after  the
21    effective date of this amendatory Act of 1989, in addition to
22    any  other tax imposed by this Act, a tax is imposed upon the
23    sale or consumption any  person  engaged  in  business  as  a
24    retailer  of  cigarettes in this State at the rate of 5 mills
25    per cigarette sold or otherwise disposed of in the course  of
26    such  business in this State. On and after the effective date
27    of this amendatory Act of 1993, in addition to any other  tax
28    imposed  by  this  Act,  a  tax  is  imposed upon the sale or
29    consumption any person engaged in business as a  retailer  of
30    cigarettes in this State at the rate of 7 mills per cigarette
31    sold  or otherwise disposed of in the course of such business
32    in this State. On and after December 15, 1997, in addition to
33    any other tax imposed by this Act, a tax is imposed upon  the
34    sale  or  consumption  any  person  engaged  in business as a
 
                            -6-      LRB093 06358 SJM 06477 b
 1    retailer of cigarettes in this State at the rate of  7  mills
 2    per  cigarette sold or otherwise disposed of in the course of
 3    such business of this State. All of the  moneys  received  by
 4    the  Department  of  Revenue  pursuant  to  this  Act and the
 5    Cigarette Use Tax Act from the additional  taxes  imposed  by
 6    this  amendatory  Act  of 1997, shall be paid each month into
 7    the Common School  Fund.  On  and  after  July  1,  2002,  in
 8    addition  to  any  other  tax  imposed  by this Act, a tax is
 9    imposed upon the sale or consumption any  person  engaged  in
10    business  as  a  retailer  of cigarettes in this State at the
11    rate of 20.0 mills per cigarette sold or  otherwise  disposed
12    of  in the course of such business in this State. The payment
13    of such taxes shall be evidenced by a stamp affixed  to  each
14    original  package  of cigarettes, or an authorized substitute
15    for such stamp imprinted on each  original  package  of  such
16    cigarettes  underneath the sealed transparent outside wrapper
17    of such original package, as hereinafter provided.   However,
18    such taxes are not imposed upon any activity in such business
19    in  interstate  commerce or otherwise, which activity may not
20    under the Constitution and statutes of the United  States  be
21    made the subject of taxation by this State.
22        Beginning on the effective date of this amendatory Act of
23    the  92nd General Assembly, all of the moneys received by the
24    Department of Revenue pursuant to this Act and the  Cigarette
25    Use  Tax Act, other than the moneys that are dedicated to the
26    Metropolitan Fair  and  Exposition  Authority  Reconstruction
27    Fund  and  the  Common School Fund, shall be distributed each
28    month as follows: first, there shall be paid into the General
29    Revenue Fund an amount which, when added to the  amount  paid
30    into   the   Common   School  Fund  for  that  month,  equals
31    $33,300,000; then, from the moneys remaining, if any  amounts
32    required to be paid into the General Revenue Fund in previous
33    months  remain  unpaid,  those amounts shall be paid into the
34    General Revenue Fund; then, beginning on April 1, 2003,  from
 
                            -7-      LRB093 06358 SJM 06477 b
 1    the moneys remaining, $5,000,000 per month shall be paid into
 2    the School Infrastructure Fund; then, if any amounts required
 3    to  be  paid  into the School Infrastructure Fund in previous
 4    months remain unpaid, those amounts shall be  paid  into  the
 5    School  Infrastructure  Fund;  then  the moneys remaining, if
 6    any, shall be paid into the Long-Term Care Provider Fund.  To
 7    the extent that more than $25,000,000 has been paid into  the
 8    General Revenue Fund and Common School Fund per month for the
 9    period  of  July  1,  1993 through the effective date of this
10    amendatory  Act  of  1994  from  combined  receipts  of   the
11    Cigarette   Tax   Act   and   the   Cigarette  Use  Tax  Act,
12    notwithstanding the distribution provided  in  this  Section,
13    the  Department  of  Revenue is hereby directed to adjust the
14    distribution provided in this Section to  increase  the  next
15    monthly  payments  to the Long Term Care Provider Fund by the
16    amount paid to the General Revenue  Fund  and  Common  School
17    Fund  in  excess of $25,000,000 per month and to decrease the
18    next monthly payments to the General Revenue Fund and  Common
19    School Fund by that same excess amount.
20        When any tax imposed herein terminates or has terminated,
21    distributors  who  have  bought  stamps while such tax was in
22    effect and who therefore paid such tax, but who can show,  to
23    the  Department's satisfaction, that they sold the cigarettes
24    to  which  they  affixed  such  stamps  after  such  tax  had
25    terminated and did not recover the tax or its equivalent from
26    purchasers, shall be allowed by the Department to take credit
27    for such absorbed tax against subsequent tax stamp  purchases
28    from the Department by such distributor.
29        The  impact of the tax levied by this Act is imposed upon
30    the retailer and shall be prepaid  or  pre-collected  by  the
31    distributor for the purpose of convenience and facility only,
32    and  the amount of the tax shall be added to the price of the
33    cigarettes sold by such distributor. Collection  of  the  tax
34    shall  be  evidenced  by  a  stamp  or stamps affixed to each
 
                            -8-      LRB093 06358 SJM 06477 b
 1    original package of cigarettes, as hereinafter provided.
 2        Each distributor shall collect the tax from the  retailer
 3    at  or before the time of the sale, shall affix the stamps to
 4    each  package  of  cigarettes   sold   or   distributed   for
 5    consumption  within  this  State as hereinafter required, and
 6    shall  remit  the  tax  collected  from  retailers   to   the
 7    Department,  as  hereinafter  provided.  Any  distributor who
 8    fails to properly collect and pay the tax imposed by this Act
 9    shall  be  liable  for  the  tax.  Any   distributor   having
10    cigarettes   to   which  stamps  have  been  affixed  in  his
11    possession for sale on the effective date of this  amendatory
12    Act  of  1989 shall not be required to pay the additional tax
13    imposed by this  amendatory  Act  of  1989  on  such  stamped
14    cigarettes. Any distributor having cigarettes to which stamps
15    have  been affixed in his or her possession for sale at 12:01
16    a.m. on the effective date of this amendatory Act of 1993, is
17    required to pay the additional tax imposed by this amendatory
18    Act of 1993 on such stamped cigarettes.  This  payment,  less
19    the  discount  provided  in subsection (b), shall be due when
20    the distributor first  makes  a  purchase  of  cigarette  tax
21    stamps  after  the  effective  date of this amendatory Act of
22    1993, or on the first due date of a  return  under  this  Act
23    after  the  effective  date  of  this amendatory Act of 1993,
24    whichever occurs first.  Any distributor having cigarettes to
25    which stamps have been affixed in his possession for sale  on
26    December 15, 1997 shall not be required to pay the additional
27    tax  imposed  by  this amendatory Act of 1997 on such stamped
28    cigarettes.
29        Any distributor having cigarettes to  which  stamps  have
30    been  affixed  in  his  or her possession for sale on July 1,
31    2002 shall not be required to pay the additional tax  imposed
32    by  this amendatory Act of the 92nd General Assembly on those
33    stamped cigarettes.
34        The amount of the Cigarette Tax imposed by this Act shall
 
                            -9-      LRB093 06358 SJM 06477 b
 1    be separately stated, apart from the price of the  goods,  by
 2    both distributors and retailers, in all advertisements, bills
 3    and sales invoices.
 4        (b)  The  distributor  shall  be  required to collect the
 5    taxes provided under paragraph (a) hereof, and, to cover  the
 6    costs  of such collection, shall be allowed a discount during
 7    any year commencing July 1st and ending  the  following  June
 8    30th  in  accordance  with  the schedule set out hereinbelow,
 9    which discount shall be allowed at the time  of  purchase  of
10    the  stamps  when purchase is required by this Act, or at the
11    time when the tax is remitted to the Department  without  the
12    purchase  of stamps if from the Department authorizes the use
13    of tax meter impressions under Section 3 when that method  of
14    paying  the tax is required or authorized by this Act.  Prior
15    to December 1, 1985, a discount equal to 1 2/3% of the amount
16    of the tax up  to  and  including  the  first  $700,000  paid
17    hereunder  by  such  distributor to the Department during any
18    such year; 1 1/3% of the next $700,000 of  tax  or  any  part
19    thereof, paid hereunder by such distributor to the Department
20    during  any such year; 1% of the next $700,000 of tax, or any
21    part thereof, paid  hereunder  by  such  distributor  to  the
22    Department  during any such year, and 2/3 of 1% of the amount
23    of any additional tax paid hereunder by such  distributor  to
24    the Department during any such year shall apply. On and after
25    December  1, 1985, a discount equal to 1.75% of the amount of
26    the tax payable under this Act up to and including the  first
27    $3,000,000   paid   hereunder  by  such  distributor  to  the
28    Department during any such year and 1.5% of the amount of any
29    additional tax paid hereunder  by  such  distributor  to  the
30    Department during any such year shall apply.
31        Two  or  more  distributors  that  use  a common means of
32    affixing revenue tax stamps or that are owned  or  controlled
33    by   the   same  interests  shall  be  treated  as  a  single
34    distributor for the purpose of computing the discount.
 
                            -10-     LRB093 06358 SJM 06477 b
 1        (c)  The taxes herein imposed  are  in  addition  to  all
 2    other  occupation  or privilege taxes imposed by the State of
 3    Illinois, or by any political subdivision thereof, or by  any
 4    municipal corporation.
 5    (Source: P.A. 92-536, eff. 6-6-02.)

 6        (35 ILCS 130/3) (from Ch. 120, par. 453.3)
 7        Sec.   3.  Affixing  tax  stamp;  remitting  tax  to  the
 8    Department.  Payment of the taxes imposed  by  Section  2  of
 9    this  Act shall (except as hereinafter provided) be evidenced
10    by revenue tax stamps affixed by a  licensed  distributor  to
11    each  original  package  of  cigarettes.  No  stamp  shall be
12    applied to any cigarette package and no tax under  Section  2
13    shall  be  imposed on any cigarettes that are exempt from tax
14    under 26 U.S.C. 5701 and that are distributed  in  accordance
15    with  federal regulations. Distributors may apply stamps only
16    to cigarette packages that they have received directly from a
17    licensed manufacturer or importer of cigarettes.
18        Each licensed distributor of  cigarettes  located  within
19    this  State  shall  apply  stamps to all applicable cigarette
20    packages within 72 hours after  receipt  of  those  products.
21    Each  distributor  of  cigarettes  located outside this State
22    shall apply  stamps  to  all  applicable  cigarette  packages
23    before sending the packages into this State.
24        Distributors  shall  be  permitted  to set aside, without
25    application of stamps, only that part  of  the  distributor's
26    stock  that is identified for sale or distribution outside of
27    the borders of this State. If  a  distributor,  as  permitted
28    under  this  Section, maintains stocks of unstamped cigarette
29    packages, those unstamped packages shall be stored separately
30    from  stamped  product  packages.  No   unstamped   cigarette
31    packages  shall  be  transferred  by a distributor to another
32    facility of the distributor within this State or  to  another
33    person within this State. Any person who is doing business as
 
                            -11-     LRB093 06358 SJM 06477 b
 1    both  a  distributor  and  a retailer shall maintain separate
 2    areas for stamped and unstamped product. Except  as  provided
 3    in  Sections  3  and  9c,  no  person,  other than a licensed
 4    manufacturer or importer,  or  a  licensed  distributor  that
 5    receives   unstamped   cigarette  packages  directly  from  a
 6    licensed cigarette manufacturer or  importer  and  holds  the
 7    cigarettes  in  accordance  with  this  Act,  shall  hold  an
 8    unstamped cigarette package.
 9        Each  roll  of  stamps,  or group of sheets, shall have a
10    unique serial number, which shall be legible at the point  of
11    sale.  The Department shall keep records of which distributor
12    purchases each roll or group of sheets identified  by  serial
13    number.  If  the  Department permits distributors to purchase
14    partial rolls or sheets, in no case may  stamps  bearing  the
15    same  serial number be sold to more than one distributor. The
16    remainder of the roll or  sheet,  if  any,  shall  either  be
17    retained  for  later  purchases  by  the  same distributor or
18    destroyed.
19        Only  licensed  distributors  may  purchase   or   obtain
20    cigarette  stamps. Distributors shall not sell or provide the
21    stamps to any other distributor or person.  Each  distributor
22    of  cigarettes,  before delivering or causing to be delivered
23    any original  package  of  cigarettes  in  this  State  to  a
24    purchaser,  shall  firmly  affix  a proper stamp or stamps to
25    each such package, or (in case of manufacturers of cigarettes
26    in original packages which  are  contained  inside  a  sealed
27    transparent  wrapper)  shall imprint the required language on
28    the original  package  of  cigarettes  beneath  such  outside
29    wrapper, as hereinafter provided.
30        No  stamp or imprint may be affixed to, or made upon, any
31    package of cigarettes unless that package complies  with  all
32    requirements   of   the   federal   Cigarette   Labeling  and
33    Advertising Act,  15  U.S.C.  1331  and  following,  for  the
34    placement  of labels, warnings, or any other information upon
 
                            -12-     LRB093 06358 SJM 06477 b
 1    a package of  cigarettes  that  is  sold  within  the  United
 2    States.   Under  the  authority  of Section 6, the Department
 3    shall  revoke  the  license  of  any  distributor   that   is
 4    determined  to have violated this paragraph. A person may not
 5    affix a stamp on a package of cigarettes,  cigarette  papers,
 6    wrappers, or tubes if that individual package has been marked
 7    for  export  outside the United States with a label or notice
 8    in compliance with Section 290.185 of Title 27 of the Code of
 9    Federal Regulations.  It is not a defense to a proceeding for
10    violation of this paragraph that the label or notice has been
11    removed, mutilated, obliterated, or altered in any manner.
12        The  Department,  or  any  person   authorized   by   the
13    Department,  shall  sell  such stamps only to persons holding
14    valid licenses as distributors under this Act. The Department
15    may refuse to sell stamps to any distributor person who  does
16    not  comply with the provisions of this Act. Beginning on the
17    effective date of this amendatory Act  of  the  92nd  General
18    Assembly  and  through  June  30, 2002, persons holding valid
19    licenses as distributors may purchase cigarette tax stamps up
20    to an amount equal  to  115%  of  the  distributor's  average
21    monthly  cigarette  tax  stamp purchases over the 12 calendar
22    months prior to the effective date of this amendatory Act  of
23    the 92nd General Assembly.
24        Prior  to  December 1, 1985, the Department shall allow a
25    distributor 21 days in which to make  final  payment  of  the
26    amount   to   be  paid  for  such  stamps,  by  allowing  the
27    distributor to make payment for the stamps  at  the  time  of
28    purchasing  them  with a draft which shall be in such form as
29    the Department prescribes, and which shall be payable  within
30    21  days thereafter: Provided that such distributor has filed
31    with  the  Department,  and  has  received  the  Department's
32    approval of, a  bond,  which  is  in  addition  to  the  bond
33    required  under  Section  4  of  this  Act,  payable  to  the
34    Department  in  an  amount equal to 80% of such distributor's
 
                            -13-     LRB093 06358 SJM 06477 b
 1    average monthly tax liability to the  Department  under  this
 2    Act during the preceding calendar year or $500,000, whichever
 3    is  less. The Bond shall be joint and several and shall be in
 4    the form of a  surety  company  bond  in  such  form  as  the
 5    Department  prescribes,  or  it  may be in the form of a bank
 6    certificate of deposit or bank letter  of  credit.  The  bond
 7    shall be conditioned upon the distributor's payment of amount
 8    of  any  21-day  draft which the Department accepts from that
 9    distributor for the delivery of stamps  to  that  distributor
10    under  this  Act.  The  distributor's failure to pay any such
11    draft,  when  due,   shall   also   make   such   distributor
12    automatically liable to the Department for a penalty equal to
13    25% of the amount of such draft.
14        On and after December 1, 1985, the Department shall allow
15    a  distributor  30 days in which to make final payment of the
16    amount  to  be  paid  for  such  stamps,  by   allowing   the
17    distributor  to  make  payment  for the stamps at the time of
18    purchasing them with a draft which shall be in such  form  as
19    the  Department prescribes, and which shall be payable within
20    30 days thereafter, and beginning  on  January  1,  2003  and
21    thereafter, the draft shall be payable by means of electronic
22    funds  transfer:   Provided  that  such distributor has filed
23    with  the  Department,  and  has  received  the  Department's
24    approval of, a  bond,  which  is  in  addition  to  the  bond
25    required  under  Section  4  of  this  Act,  payable  to  the
26    Department  in  an amount equal to 150% of such distributor's
27    average monthly tax liability to the  Department  under  this
28    Act during the preceding calendar year or $750,000, whichever
29    is less, except that as to bonds filed on or after January 1,
30    1987,  such  additional  bond  shall be in an amount equal to
31    100% of such  distributor's  average  monthly  tax  liability
32    under   this  Act  during  the  preceding  calendar  year  or
33    $750,000, whichever is less.  The bond  shall  be  joint  and
34    several  and shall be in the form of a surety company bond in
 
                            -14-     LRB093 06358 SJM 06477 b
 1    such form as the Department prescribes, or it may be  in  the
 2    form  of  a  bank  certificate  of  deposit or bank letter of
 3    credit. The bond shall be conditioned upon the  distributor's
 4    payment   of  the  amount  of  any  30-day  draft  which  the
 5    Department accepts from that distributor for the delivery  of
 6    stamps to that distributor under this Act.  The distributor's
 7    failure to pay any such draft, when due, shall also make such
 8    distributor  automatically  liable  to  the  Department for a
 9    penalty equal to 25% of the amount of such draft.
10        Every prior continuous  compliance  distributor  taxpayer
11    shall  be  exempt  from  all  requirements under this Section
12    concerning the furnishing of such bond, as  defined  in  this
13    Section,  as a condition precedent to his being authorized to
14    engage  in  the  business  licensed  under  this  Act.   This
15    exemption shall continue for each such  taxpayer  until  such
16    time  as  he  may  be  determined  by  the  Department  to be
17    delinquent in the filing of any returns, or is determined  by
18    the Department (either through the Department's issuance of a
19    final  assessment which has become final under the Act, or by
20    the taxpayer's filing of a return which admits tax to be  due
21    that is not paid) to be delinquent or deficient in the paying
22    of  any tax under this Act, at which time that taxpayer shall
23    become subject to the bond requirements of this Section  and,
24    as  a condition of being allowed to continue to engage in the
25    business licensed  under  this  Act,  shall  be  required  to
26    furnish  bond  to  the Department in such form as provided in
27    this Section.  Such taxpayer shall furnish such  bond  for  a
28    period  of 2 years, after which, if the taxpayer has not been
29    delinquent in the filing of any  returns,  or  delinquent  or
30    deficient  in  the  paying  of  any  tax  under this Act, the
31    Department may reinstate such person as a  prior  continuance
32    compliance  taxpayer.   Any  taxpayer  who  fails  to  pay an
33    admitted or established liability under this Act may also  be
34    required  to  post bond or other acceptable security with the
 
                            -15-     LRB093 06358 SJM 06477 b
 1    Department guaranteeing  the  payment  of  such  admitted  or
 2    established liability.
 3        Any  person  aggrieved  by any decision of the Department
 4    under this Section may,  within  the  time  allowed  by  law,
 5    protest and request a hearing, whereupon the Department shall
 6    give  notice  and shall hold a hearing in conformity with the
 7    provisions  of  this   Act   and   then   issue   its   final
 8    administrative decision in the matter to such person.  In the
 9    absence  of  such  a protest filed within the time allowed by
10    law, the Department's decision shall become final without any
11    further determination being made or notice given.
12        The Department  shall  discharge  any  surety  and  shall
13    release  and return any bond or security deposited, assigned,
14    pledged,  or  otherwise  provided  to  it  by  a  distributor
15    taxpayer under this Section within 30 days after:
16        (1)  Such distributor taxpayer becomes a prior continuous
17    compliance distributor taxpayer; or
18        (2)  Such distributor  taxpayer  has  ceased  to  collect
19    receipts  on  which  he  is  required  to  remit  tax  to the
20    Department, has filed a final tax return, and has paid to the
21    Department an amount sufficient to  discharge  his  remaining
22    tax liability as determined by the Department under this Act.
23    The  Department  shall  make  a  final  determination  of the
24    distributor's  taxpayer's  outstanding   tax   liability   as
25    expeditiously as possible after his final tax return has been
26    filed.    If   the   Department   cannot   make   such  final
27    determination within 45 days after receiving  the  final  tax
28    return, within such period it shall so notify the distributor
29    taxpayer, stating its reasons therefor.
30        The   Department  may  authorize  distributors  to  affix
31    revenue tax  stamps  by  imprinting  tax  meter  stamps  upon
32    original  packages  of  cigarettes,  provided  that the meter
33    impressions shall contain a number or mark,  legible  at  the
34    point  of sale, that is unique to the particular distributor.
 
                            -16-     LRB093 06358 SJM 06477 b
 1    The Department shall adopt rules and regulations relating  to
 2    the  imprinting  of  such  tax meter stamps as will result in
 3    payment of the proper taxes as herein imposed. No distributor
 4    may  affix  revenue  tax  stamps  to  original  packages   of
 5    cigarettes by imprinting tax meter stamps thereon unless such
 6    distributor has first obtained permission from the Department
 7    to  employ  this  method  of affixation. The Department shall
 8    regulate the use of tax meters and may, to assure the  proper
 9    collection  of  the  taxes  imposed  by  this  Act, revoke or
10    suspend the privilege, theretofore granted by the  Department
11    to any distributor, to imprint tax meter stamps upon original
12    packages of cigarettes.
13        Illinois   cigarette   manufacturers   who   place  their
14    cigarettes in original packages which are contained inside  a
15    sealed   transparent   wrapper,   and   similar  out-of-State
16    cigarette manufacturers who elect to qualify and are accepted
17    by the Department as distributors under Section  4b  of  this
18    Act, shall pay the taxes imposed by this Act by remitting the
19    amount thereof to the Department by the 5th day of each month
20    covering   cigarettes   shipped  or  otherwise  delivered  in
21    Illinois to purchasers during the preceding  calendar  month.
22    Such  manufacturers  of cigarettes in original packages which
23    are contained inside a  sealed  transparent  wrapper,  before
24    delivering  such  cigarettes or causing such cigarettes to be
25    delivered in this State to purchasers, shall  evidence  their
26    obligation  to  remit  the  taxes  due  with  respect to such
27    cigarettes by imprinting language to  be  prescribed  by  the
28    Department  on  each  original  package  of  such  cigarettes
29    underneath  the  sealed  transparent  outside wrapper of such
30    original package, in such place thereon and in such manner as
31    the Department may designate. Such imprinted  language  shall
32    acknowledge  the  manufacturer's  payment of or liability for
33    the tax imposed by this Act with respect to the  distribution
34    of such cigarettes.
 
                            -17-     LRB093 06358 SJM 06477 b
 1        A  distributor  shall  not affix, or cause to be affixed,
 2    any stamp or imprint to a package of cigarettes, as  provided
 3    for  in this Section, if the tobacco product manufacturer, as
 4    defined in Section 10 of the Tobacco  Product  Manufacturers'
 5    Escrow  Act,  that  made or sold the cigarettes has failed to
 6    become  a   participating   manufacturer,   as   defined   in
 7    subdivision  (a)(1)  of  Section  15  of  the Tobacco Product
 8    Manufacturers'  Escrow  Act,  or  has  failed  to  create   a
 9    qualified  escrow fund for any cigarettes manufactured by the
10    tobacco product  manufacturer  and  sold  in  this  State  or
11    otherwise   failed  to  bring  itself  into  compliance  with
12    subdivision (a)(2) of  Section  15  of  the  Tobacco  Product
13    Manufacturers' Escrow Act.
14    (Source:  P.A.  91-246,  eff.  7-22-99;  92-322, eff. 1-1-02;
15    92-536, eff. 6-6-02; 92-737, eff. 7-25-02; revised 9-10-02.)

16        (35 ILCS 130/4) (from Ch. 120, par. 453.4)
17        Sec. 4.  License required for  manufacturers,  importers,
18    distributors,  and retailers Distributor's license. No person
19    may engage in business as a manufacturer, importer, retailer,
20    or distributor of cigarettes in this State within the meaning
21    of the first 2 definitions of distributor  in  Section  1  of
22    this  Act  without  first  having obtained a license therefor
23    from the Department. Application for license shall be made to
24    the Department in form as furnished  and  prescribed  by  the
25    Department.  Each  applicant for a license under this Section
26    shall furnish to  the  Department  on  the  form  signed  and
27    verified by the applicant the following information:
28             (a)  The name and address of the applicant;
29             (b)  The  address  of each the location at which the
30        applicant proposes to engage  in  business  within  as  a
31        distributor of cigarettes in this State;
32             (c)  The  address of the location of the applicant's
33        principal place of business; provided, that  the  address
 
                            -18-     LRB093 06358 SJM 06477 b
 1        shall be updated by the licensee as necessary;
 2             (d)  If  the  applicant  is  a firm, partnership, or
 3        association, the application shall  state  the  name  and
 4        address  of  each  of  its members. If the applicant is a
 5        corporation, the application shall  state  the  name  and
 6        address  of each of its officers and the name and address
 7        of any person who owns, directly or indirectly, more than
 8        5% of the ownership interests in the corporation; and
 9             (e) (c)  Such other additional  information  as  the
10        Department   may   lawfully  require  by  its  rules  and
11        regulations.
12        The annual license fee payable to the Department for each
13    distributor's, manufacturer's, and importer's  license  shall
14    be $250. The annual license fee payable to the Department for
15    each  retailer's  license shall be $100.  The purpose of such
16    annual license fees  fee  is  to  defray  the  cost,  to  the
17    Department,  of  administering this Act serializing cigarette
18    tax stamps. Each applicant for license shall pay such fee  to
19    the  Department at the time of submitting his application for
20    license to the Department.
21        Every  applicant   who   is   required   to   procure   a
22    distributor's license shall file with his application a joint
23    and  several  bond.  Such  bond  shall  be  executed  to  the
24    Department  of  Revenue,  with  good and sufficient surety or
25    sureties residing or licensed to do business within the State
26    of Illinois, in the amount of $2,500,  conditioned  upon  the
27    true  and faithful compliance by the licensee with all of the
28    provisions of this Act. Such bond, or a reissue thereof, or a
29    substitute therefor, shall  be  kept  in  effect  during  the
30    entire period covered by the license.
31        A  separate  application  for  license  shall  be made, a
32    separate annual license fee paid, and a separate  bond  filed
33    with  respect  to distributors, for each place of business in
34    this State at which a person who is  required  to  procure  a
 
                            -19-     LRB093 06358 SJM 06477 b
 1    distributor's  license  under this Section proposes to engage
 2    in  business  as  a  manufacturer,  importer,  retailer,   or
 3    distributor in Illinois under this Act. If the applicant does
 4    not  have  a  place of business in this State, an application
 5    shall  be  made  for  the  applicant's  principal  place   of
 6    business,  wherever  located.  A  separate  license  shall be
 7    issued for each application.
 8        The following are ineligible to receive  a  distributor's
 9    license under this Act:
10                  (1)  an  applicant  a person who is not of good
11             character and reputation in the community  in  which
12             he resides;
13                  (2)  an   applicant   a  person  who  has  been
14             convicted of a felony under  any  Federal  or  State
15             law,  if  the  Department, after investigation and a
16             hearing, if requested by the  applicant,  determines
17             that   such   person   has   not  been  sufficiently
18             rehabilitated to warrant the public trust;
19                  (3)  an applicant who  owes  $500  or  more  in
20             cigarette taxes;
21                  (4)  an  applicant  who has had a license under
22             this Act revoked by the Department within the past 2
23             years;
24                  (5) an applicant who has been  convicted  of  a
25             crime  relating  to  cigarettes,  including  but not
26             limited   to,   selling   stolen   or    counterfeit
27             cigarettes,    receiving   stolen   or   counterfeit
28             cigarettes,  or  involvement  in  the  smuggling  or
29             counterfeiting or cigarettes;
30                  (6)   an   applicant   who   is   a   cigarette
31             manufacturer or  importer  that  is  neither  (i)  a
32             participating  manufacturer as defined in subsection
33             II(jj) of the Master Settlement Agreement as defined
34             in Section 10 of the Tobacco Product  Manufacturers'
 
                            -20-     LRB093 06358 SJM 06477 b
 1             Escrow  Act nor (ii) in full compliance with Section
 2             32   of   this   Act   and   the   Tobacco   Product
 3             Manufacturers' Escrow Act;
 4                  (7) an applicant who has imported, or caused to
 5             be imported, into the United States any cigarette in
 6             violation of 19 U.S.C. 1681a;
 7                  (8) an applicant who has imported, or caused to
 8             be   imported,   or   manufactured   for   sale   or
 9             distribution in the United States any cigarette that
10             does not fully comply  with  the  Federal  Cigarette
11             Labeling  and  Advertising  Act  (15 U.S.C. 1331, et
12             seq.); or
13                  (9)  an  applicant  that  is   a   corporation,
14             partnership,   or  other  business  entity,  if  any
15             officer,  manager,  or  director  thereof,  or   any
16             persons stockholder or stockholders owning, directly
17             or indirectly, in the aggregate, more than 5% of the
18             ownership    interests    stock   of   such   entity
19             corporation, would not  be  eligible  to  receive  a
20             license under this Act for any reason.
21        The  Department,  upon receipt of an application, license
22    fee and bond in proper form if applicable, from a person  who
23    is  eligible  to  receive  a distributor's license under this
24    Act, shall issue to such  applicant  a  license  in  form  as
25    prescribed  by the Department, which license shall permit the
26    applicant to which it is issued to engage in  business  as  a
27    manufacturer,  importer,  retailer,  or  distributor  at  the
28    Illinois  place  of business shown in his application, and in
29    any place of business located outside  of  Illinois.  If  the
30    licensee  does  not  have  an Illinois place of business, the
31    license shall permit the applicant to which it is  issued  to
32    engage  in business as a manufacturer, importer, retailer, or
33    distributor, wherever located. All  licenses  issued  by  the
34    Department  under  this  Act shall be valid for not to exceed
 
                            -21-     LRB093 06358 SJM 06477 b
 1    one year after issuance unless sooner  revoked,  canceled  or
 2    suspended  as  provided  in this Act. No license issued under
 3    this Act is transferable or assignable. Such license shall be
 4    conspicuously displayed in the place of business conducted by
 5    the licensee in Illinois under such license. If the  licensee
 6    does  not  have  a place of business in Illinois, the license
 7    shall be conspicuously displayed at the applicant's principal
 8    place of business, wherever located.   The  Department  shall
 9    create  and  maintain a website setting forth the identity of
10    all licensed persons under this Section, itemized by type  of
11    license   possessed,  and  shall  update  the  site  no  less
12    frequently than once per month.
13        Any person aggrieved by any decision  of  the  Department
14    under  this  Section  may, within 20 days after notice of the
15    decision, protest and request a hearing.   Upon  receiving  a
16    request  for  a  hearing, the Department shall give notice to
17    the person requesting the hearing of the time and place fixed
18    for the hearing and shall hold a hearing in  conformity  with
19    the   provisions  of  this  Act  and  then  issue  its  final
20    administrative decision in the matter to that person. In  the
21    absence  of  a  protest  and  request for a hearing within 20
22    days, the Department's decision shall  become  final  without
23    any further determination being made or notice given.
24    (Source: P.A. 91-901, eff. 1-1-01; 92-322, eff. 1-1-02.)

25        (35 ILCS 130/4a) (from Ch. 120, par. 453.4a)
26        Sec. 4a.  If a distributor licensee shall be convicted of
27    the violation of any of the provisions of this Act, or if his
28    license shall be revoked and no review is had of the order or
29    revocation,  or  if on review thereof the decision is adverse
30    to the distributor licensee, or  if  a  distributor  licensee
31    fails  to pay an assessment as to which no judicial review is
32    sought and which has become final, or pursuant to which, upon
33    review thereof, the circuit court has entered a judgment that
 
                            -22-     LRB093 06358 SJM 06477 b
 1    is in favor of the Department and that has become final,  the
 2    bond filed pursuant to this Act shall thereupon be forfeited,
 3    and the Department may institute a suit upon such bond in its
 4    own  name  for the entire amount of such bond and costs. Such
 5    suit upon the bond shall be in addition to any  other  remedy
 6    provided for herein.
 7    (Source: P.A. 79-1366.)

 8        (35 ILCS 130/4b) (from Ch. 120, par. 453.4b)
 9        Sec.  4b. Transactions only with other licensed entities.
10    A manufacturer or importer may sell or distribute  cigarettes
11    to  a person located or doing business within this State only
12    if that person is a  licensed  importer  or  distributor.  An
13    importer  may  obtain  cigarettes  from a person only if that
14    person is a licensed manufacturer. A distributor may sell  or
15    distribute  cigarettes  to a person located or doing business
16    within  this  State  only  if  that  person  is  a   licensed
17    distributor  or retailer. A distributor may obtain cigarettes
18    only from a licensed manufacturer, importer, or  distributor.
19    A  retailer  may  obtain  cigarettes  only  from  a  licensed
20    distributor.  The  Department  may,  in  its discretion, upon
21    application, issue permits authorizing the payment of the tax
22    herein imposed by out-of-State  cigarette  manufacturers  who
23    are not required to be licensed as distributors of cigarettes
24    in  this  State,  but  who elect to qualify under this Act as
25    distributors of cigarettes in this State,  and  who,  to  the
26    satisfaction  of the Department, furnish adequate security to
27    insure payment of the tax,  provided  that  any  such  permit
28    shall   extend   only  to  cigarettes  which  such  permittee
29    manufacturer places in original packages that  are  contained
30    inside  a  sealed transparent wrapper.  Such permits shall be
31    issued without charge in such  form  as  the  Department  may
32    prescribe and shall not be transferable or assignable.
33        The  following  are ineligible to receive a distributor's
 
                            -23-     LRB093 06358 SJM 06477 b
 1    permit under this Act:
 2        (1)  a person who is not of good character and reputation
 3    in the community in which he resides;
 4        (2)  a person who has been convicted of  a  felony  under
 5    any   Federal   or   State  law,  if  the  Department,  after
 6    investigation and a hearing, if requested by  the  applicant,
 7    determines   that  such  person  has  not  been  sufficiently
 8    rehabilitated to warrant the public trust;
 9        (3)  a corporation, if any officer, manager  or  director
10    thereof,  or  any  stockholder  or stockholders owning in the
11    aggregate more than 5% of  the  stock  of  such  corporation,
12    would  not be eligible to receive a permit under this Act for
13    any reason.
14        With respect to cigarettes which come within the scope of
15    such a permit and which any such permittee delivers or causes
16    to be delivered in Illinois  to  purchasers,  such  permittee
17    shall remit the tax imposed by this Act at the times provided
18    for  in  Section 3 of this Act. Each such remittance shall be
19    accompanied by a return filed with the Department on  a  form
20    to  be  prescribed  and furnished by the Department and shall
21    disclose such information  as  the  Department  may  lawfully
22    require.   Each such return shall be accompanied by a copy of
23    each invoice rendered by the permittee to  any  purchaser  to
24    whom  the  permittee delivered cigarettes of the type covered
25    by the permit (or caused cigarettes of the  type  covered  by
26    the  permit  to  be  delivered) in Illinois during the period
27    covered by such return.
28        Such permit may be suspended, canceled or  revoked  when,
29    at any time, the Department considers that the security given
30    is  inadequate,  or  that  such  tax  can more effectively be
31    collected  from  distributors  located  in  this  State,   or
32    whenever  the permittee violates any provision of this Act or
33    any lawful  rule  or  regulation  issued  by  the  Department
34    pursuant  to this Act or is determined to be ineligible for a
 
                            -24-     LRB093 06358 SJM 06477 b
 1    distributor's permit under  this  Act  as  provided  in  this
 2    Section,  whenever  the permittee shall notify the Department
 3    in writing of his desire to have the  permit  canceled.   The
 4    Department  shall have the power, in its discretion, to issue
 5    a  new  permit  after  such   suspension,   cancellation   or
 6    revocation,  except  when  the  person  who would receive the
 7    permit is ineligible to receive a distributor's permit  under
 8    this Act.
 9        All permits issued by the Department under this Act shall
10    be  valid  for  not  to exceed one year after issuance unless
11    sooner  revoked,  canceled  or  suspended  as  in  this   Act
12    provided.
13    (Source: P.A. 79-387.)

14        (35 ILCS 130/5) (from Ch. 120, par. 453.5)
15        Sec. 5.  Printing tax stamps.  The Department shall adopt
16    the  design  or  designs of the tax stamps or alternative tax
17    indicia and shall procure the  printing  of  such  stamps  or
18    alternative  tax indicia in such amounts and denominations as
19    it deems necessary to  provide  for  the  affixation  of  the
20    proper  amount  of  tax  stamps or alternative tax indicia to
21    each original package of cigarettes.  Each roll of stamps  or
22    alternative  tax indicia shall conform to the requirements of
23    Section 3.
24    (Source: P.A. 92-322, eff. 1-1-02.)

25        (35 ILCS 130/6) (from Ch. 120, par. 453.6)
26        Sec.  6.  Revocation,  cancellation,  or  suspension   of
27    license.  The  Department  may,  after  notice and hearing as
28    provided for by this  Act,  revoke,  cancel  or  suspend  the
29    license   of   any   manufacturer,   importer,  retailer,  or
30    distributor for the violation of any provision of  this  Act,
31    or  for noncompliance with any provision herein contained, or
32    for any noncompliance with  any  lawful  rule  or  regulation
 
                            -25-     LRB093 06358 SJM 06477 b
 1    promulgated by the Department under Section 8 of this Act, or
 2    because  the  licensee  is  determined to be ineligible for a
 3    distributor's license for any one  or  more  of  the  reasons
 4    provided  for  in  Section  4  of this Act.  However, no such
 5    license shall be  revoked,  cancelled  or  suspended,  except
 6    after a hearing by the Department with notice to the licensee
 7    distributor,   as  aforesaid,  and  affording  such  licensee
 8    distributor a reasonable opportunity to  appear  and  defend,
 9    and any licensee distributor aggrieved by any decision of the
10    Department with respect thereto may have the determination of
11    the Department judicially reviewed, as herein provided.
12        The Department may revoke, cancel, or suspend the license
13    of  any  distributor  for  a violation of the Tobacco Product
14    Manufacturers' Escrow Enforcement Act as provided in  Section
15    20 of that Act.
16        Any licensee distributor aggrieved by any decision of the
17    Department  under  this  Section  may,  within  20 days after
18    notice of the decision, protest and request a hearing.   Upon
19    receiving  a request for a hearing, the Department shall give
20    notice in writing to the licensee distributor requesting  the
21    hearing  that  contains  a statement of the charges preferred
22    against the licensee distributor and that states the time and
23    place fixed for the hearing.  The Department shall  hold  the
24    hearing  in  conformity  with  the provisions of this Act and
25    then issue its final administrative decision in the matter to
26    the licensee distributor.  In the absence of  a  protest  and
27    request  for  a  hearing  within  20  days,  the Department's
28    decision shall become final without any further determination
29    being made or notice given.
30        No license so revoked, as aforesaid, shall be reissued to
31    any such licensee distributor within a  period  of  6  months
32    after the date of the final determination of such revocation.
33    No  such  license  shall  be  reissued  at all so long as the
34    person who would receive the license is ineligible to receive
 
                            -26-     LRB093 06358 SJM 06477 b
 1    a distributor's license under this Act for any one or more of
 2    the reasons provided for in Section 4 of this Act.
 3        The Department upon complaint filed in the circuit  court
 4    may  by injunction restrain any person who fails, or refuses,
 5    to comply with any of the provisions of this Act from  acting
 6    as a distributor of cigarettes in this State.
 7    (Source: P.A. 91-901, eff. 1-1-01; 92-737, eff. 7-25-02.)

 8        (35 ILCS 130/7) (from Ch. 120, par. 453.7)
 9        Sec. 7.  The Department or any officer or employee of the
10    Department  designated,  in writing, by the Director thereof,
11    shall at its or his or her own instance, or  on  the  written
12    request of any licensee distributor or other interested party
13    to  the  proceeding, issue subpoenas requiring the attendance
14    of and the giving of testimony by  witnesses,  and  subpoenas
15    duces  tecum  requiring  the  production  of  books,  papers,
16    records or memoranda. All subpoenas and subpoenas duces tecum
17    issued  under  the  terms  of  this  Act may be served by any
18    person of full age. The fees of witnesses for attendance  and
19    travel  shall be the same as the fees of witnesses before the
20    circuit court of this State; such fees to be  paid  when  the
21    witness  is excused from further attendance. When the witness
22    is subpoenaed at  the  instance  of  the  Department  or  any
23    officer  or  employee thereof, such fees shall be paid in the
24    same manner as other expenses of the Department, and when the
25    witness is subpoenaed at the instance of any other  party  to
26    any  such  proceeding, the cost of service of the subpoena or
27    subpoena duces tecum and the fee  of  the  witness  shall  be
28    borne by the party at whose instance the witness is summoned.
29    In such case the Department, in its discretion, may require a
30    deposit to cover the cost of such service and witness fees. A
31    subpoena or subpoena duces tecum so issued shall be served in
32    the  same manner as a subpoena or subpoena duces tecum issued
33    out of a court.
 
                            -27-     LRB093 06358 SJM 06477 b
 1        Any circuit court of this State, upon the application  of
 2    the  Department  or  any officer or employee thereof, or upon
 3    the application of any other party to the proceeding, may, in
 4    its discretion,  compel  the  attendance  of  witnesses,  the
 5    production  of  books,  papers,  records or memoranda and the
 6    giving of testimony before the Department or any  officer  or
 7    employee  thereof  conducting  an  investigation or holding a
 8    hearing  authorized  by  this  Act,  by  an  attachment   for
 9    contempt,  or  otherwise, in the same manner as production of
10    evidence may be compelled before the court.
11        The Department or any officer or employee thereof, or any
12    other  party  in  an  investigation  or  hearing  before  the
13    Department, may cause the depositions of witnesses within the
14    State to be taken in the manner prescribed by  law  for  like
15    depositions, or depositions for discovery in civil actions in
16    courts  of  this State, and to that end compel the attendance
17    of witnesses and the production of books, papers, records  or
18    memoranda, in the same manner hereinbefore provided.
19    (Source: P.A. 83-334.)

20        (35 ILCS 130/9) (from Ch. 120, par. 453.9)
21        Sec. 9.  Reports.
22        (a)  In  General. Distributors and retailers shall submit
23    to the Department monthly reports setting forth the following
24    information, itemized or submitted  separately  for  each  of
25    their places of business:
26             (1) the quantities of cigarettes, by brand style, on
27        hand  both  at  the  beginning  and  end of the reporting
28        period;
29             (2) the quantities of cigarettes, by brand style and
30        transaction, that  were  received  during  the  reporting
31        period  and the name and address of each person from whom
32        those products were received; and
33             (3) the quantities of cigarettes, by brand style and
 
                            -28-     LRB093 06358 SJM 06477 b
 1        transaction, distributed or shipped during the  reporting
 2        period  (other  than sales directly to consumers) and the
 3        name and address of each person to  whom  those  products
 4        were distributed or shipped.
 5        (b)   Manufacturers   and  importers.  Manufacturers  and
 6    importers shipping cigarettes into or within this State shall
 7    file a monthly report with  the  Department  regarding  those
 8    cigarettes containing the information set forth in subsection
 9    (a) of this Section.
10        (c) Tax stamps. Distributor reports submitted pursuant to
11    subsection  (a)  shall  be  further  itemized to disclose the
12    quantity of reported cigarettes bearing tax  stamps  of  this
13    State,  tax-exempt  stamps  of  this State, stamps of another
14    state, and unstamped cigarettes. The distributor reports also
15    shall include, if applicable, the quantity  of  Illinois  tax
16    and tax-exempt stamps that were not affixed to cigarettes and
17    that  were  on hand at the beginning and end of the reporting
18    period, the quantity of each type of Illinois stamp  received
19    during the reporting period, and the quantity of each type of
20    Illinois   stamp   applied   during   the  reporting  period.
21    Distributors who sell cigarettes into  both  this  State  and
22    other states shall itemize this report to separately indicate
23    sales into the State of Illinois.
24        (d)  Rules. The Department may adopt rules requiring such
25    additional information in  the  monthly  reports  as  it  may
26    determine   is  necessary  or  appropriate  for  purposes  of
27    enforcing the provisions of this Act.
28        (e)  Access  to  reports  by  general   public.   Reports
29    submitted  by licensees shall be subject to public disclosure
30    as provided under applicable law. In no case, however,  shall
31    information  about  quantities  of  cigarettes  by  brand  be
32    released  to  anyone  other  than  those  permitted access to
33    records and reports under Section  11.  Returns;  remittance.
34    Every  distributor who is required to procure a license under
 
                            -29-     LRB093 06358 SJM 06477 b
 1    this Act, but who is not  a  manufacturer  of  cigarettes  in
 2    original packages which are contained in a sealed transparent
 3    wrapper,  shall,  on  or before the 15th day of each calendar
 4    month,  file  a  return  with  the  Department,  showing  the
 5    quantity of  cigarettes  manufactured  during  the  preceding
 6    calendar  month, the quantity of cigarettes brought into this
 7    State or caused to be brought into this  State  from  outside
 8    this  State  during  the  preceding  calendar  month  without
 9    authorized   evidence   on  the  original  packages  of  such
10    cigarettes underneath the sealed transparent wrapper  thereof
11    that  the  tax liability imposed by this Act has been assumed
12    by the out-of-State seller of such cigarettes,  the  quantity
13    of   cigarettes   purchased  tax-paid  during  the  preceding
14    calendar month either within or outside this State,  and  the
15    quantity  of  cigarettes sold or otherwise disposed of during
16    the preceding calendar month. Such return shall be filed upon
17    forms furnished and prescribed by the  Department  and  shall
18    contain   such   other  information  as  the  Department  may
19    reasonably require. The Department may  promulgate  rules  to
20    require  that  the  distributor's  return  be  accompanied by
21    appropriate  computer-generated  magnetic  media   supporting
22    schedule  data  in  the  format  required  by the Department,
23    unless,  as  provided  by  rule,  the  Department  grants  an
24    exception upon petition of a distributor.
25        Illinois manufacturers of cigarettes in original packages
26    which are contained inside a sealed transparent wrapper shall
27    file a return by the 5th  day  of  each  month  covering  the
28    preceding   calendar   month.   Each  such  return  shall  be
29    accompanied by the appropriate remittance for tax as provided
30    in the last paragraph of Section 3 of  this  Act.  Each  such
31    return   shall   show   the   quantity   of  such  cigarettes
32    manufactured during the period covered  by  the  return,  the
33    quantity  of  cigarettes sold or otherwise disposed of during
34    the period covered by the return and such  other  information
 
                            -30-     LRB093 06358 SJM 06477 b
 1    as the Department may lawfully require. Such returns shall be
 2    filed  on  forms  prescribed and furnished by the Department.
 3    Each such return shall be  accompanied  by  a  copy  of  each
 4    invoice  rendered  by  such  manufacturer to any purchaser to
 5    whom  such  manufacturer  delivered  cigarettes  (or   caused
 6    cigarettes  to be delivered) during the period covered by the
 7    return. The Department may promulgate rules to  require  that
 8    the  manufacturer's  return  be  accompanied  by  appropriate
 9    computer-generated magnetic media supporting schedule data in
10    the format required by the Department, unless, as provided by
11    rule,  the  Department grants an exception upon petition of a
12    manufacturer.
13    (Source: P.A. 92-322, eff. 1-1-02.)

14        (35 ILCS 130/9a) (from Ch. 120, par. 453.9a)
15        Sec. 9a.  Declaration  of  possession  on  cigarettes  on
16    which tax not paid.
17        (a)  In  the event that unstamped cigarettes are acquired
18    by a consumer for use, storage, or consumption in this State,
19    that consumer, within 30 days after acquiring the cigarettes,
20    shall file with the Department a  consumer  return  declaring
21    the  possession of the cigarettes and shall transmit with the
22    consumer return to the Department the  tax  imposed  by  this
23    Act.
24        (b)  The  consumer  return  referred to in subsection (a)
25    shall contain the name and address of the  person  possessing
26    the  cigarettes involved, the location of the cigarettes, and
27    the quantity, brand name, place, and date of the  acquisition
28    of the cigarettes.
29        (c)  The  filing  of a consumer return and the payment of
30    tax under this Section shall not relieve the consumer or  any
31    other person of liability for any civil or criminal penalties
32    as may be provided under this Act. Examination and correction
33    of returns.
 
                            -31-     LRB093 06358 SJM 06477 b
 1        (1)  As  soon  as  practicable after any return is filed,
 2    the Department shall examine such return  and  shall  correct
 3    such  return  according to its best judgment and information,
 4    which return so corrected by the Department  shall  be  prima
 5    facie  correct  and  shall  be  prima  facie  evidence of the
 6    correctness of the amount  of  tax  due,  as  shown  therein.
 7    Instead  of  requiring  the  distributor  to  file an amended
 8    return, the Department may simply notify the  distributor  of
 9    the  correction  or  corrections  it  has made. Proof of such
10    correction by the Department  may  be  made  at  any  hearing
11    before  the  Department  or  in  any  legal  proceeding  by a
12    reproduced copy of the Department's record  relating  thereto
13    in  the  name  of the Department under the certificate of the
14    Director of Revenue.  Such  reproduced  copy  shall,  without
15    further   proof,   be   admitted  into  evidence  before  the
16    Department or in any legal  proceeding  and  shall  be  prima
17    facie  proof  of the correctness of the amount of tax due, as
18    shown therein. If the Department finds that any amount of tax
19    is due from the distributor, the Department shall  issue  the
20    distributor  a  notice of tax liability for the amount of tax
21    claimed by the Department to be due, together with a  penalty
22    in  an amount determined in accordance with Sections 3-3, 3-5
23    and 3-6 of the Uniform  Penalty  and  Interest  Act.  If,  in
24    administering  the  provisions  of  this Act, comparison of a
25    return or returns of a distributor with  the  books,  records
26    and  inventories  of  such distributor discloses a deficiency
27    which cannot be allocated by the Department to  a  particular
28    month or months, the Department shall issue the distributor a
29    notice  of tax liability for the amount of tax claimed by the
30    Department to be due for a  given  period,  but  without  any
31    obligation upon the Department to allocate such deficiency to
32    any particular month or months, together with a penalty in an
33    amount  determined  in  accordance with Sections 3-3, 3-5 and
34    3-6 of the Uniform Penalty  and  Interest  Act,  under  which
 
                            -32-     LRB093 06358 SJM 06477 b
 1    circumstances  the aforesaid notice of tax liability shall be
 2    prima facie correct and shall be prima facie evidence of  the
 3    correctness  of  the amount of tax due, as shown therein; and
 4    proof of such correctness may be made in accordance with, and
 5    the admissibility of a reproduced copy of such notice of  tax
 6    liability  shall  be  governed by, all the provisions of this
 7    Act applicable  to  corrected  returns.  If  any  distributor
 8    filing  any  return  dies  or  becomes  a  person under legal
 9    disability at any  time  before  the  Department  issues  its
10    notice  of  tax liability, such notice shall be issued to the
11    administrator, executor or  other  legal  representative,  as
12    such, of such distributor.
13        (2)  If,   within  60  days  after  such  notice  of  tax
14    liability, the distributor or his or her legal representative
15    files a protest to such notice of tax liability and  requests
16    a  hearing  thereon, the Department shall give notice to such
17    distributor or legal representative of  the  time  and  place
18    fixed   for  such  hearing,  and  shall  hold  a  hearing  in
19    conformity with the provisions  of  this  Act,  and  pursuant
20    thereto shall issue a final assessment to such distributor or
21    legal  representative  for  the  amount  found to be due as a
22    result of such hearing. If a protest to  the  notice  of  tax
23    liability  and  a  request for a hearing thereon is not filed
24    within 60 days after  such  notice  of  tax  liability,  such
25    notice  of  tax  liability  shall  become  final  without the
26    necessity of a final assessment being  issued  and  shall  be
27    deemed to be a final assessment.
28        (3)  In  case  of  failure to pay the tax, or any portion
29    thereof, or any penalty provided for in this Act,  when  due,
30    the  Department  may bring suit to recover the amount of such
31    tax, or portion thereof, or penalty; or, if the taxpayer dies
32    or becomes incompetent, by filing claim therefor against  his
33    estate; provided that no such action with respect to any tax,
34    or portion thereof, or penalty, shall be instituted more than
 
                            -33-     LRB093 06358 SJM 06477 b
 1    2  years  after  the cause of action accrues, except with the
 2    consent of the person from whom such tax or penalty is due.
 3        After the expiration  of  the  period  within  which  the
 4    person  assessed may file an action for judicial review under
 5    the Administrative Review Law without such  an  action  being
 6    filed,  a  certified  copy of the final assessment or revised
 7    final assessment of the Department  may  be  filed  with  the
 8    Circuit  Court of the county in which the taxpayer has his or
 9    her principal place of business, or  of  Sangamon  County  in
10    those cases in which the taxpayer does not have his principal
11    place  of  business  in this State. The certified copy of the
12    final  assessment  or  revised  final  assessment  shall   be
13    accompanied  by  a certification which recites facts that are
14    sufficient to show that  the  Department  complied  with  the
15    jurisdictional  requirements  of  the  Law in arriving at its
16    final assessment or its revised final assessment and that the
17    taxpayer had his or her  opportunity  for  an  administrative
18    hearing  and  for judicial review, whether he availed himself
19    or herself of either or both of these opportunities  or  not.
20    If  the  court is satisfied that the Department complied with
21    the jurisdictional requirements of the Law in arriving at its
22    final assessment or its revised final assessment and that the
23    taxpayer had his or her  opportunity  for  an  administrative
24    hearing  and  for  judicial review, whether he or she availed
25    himself or herself of either or both of  these  opportunities
26    or  not,  the  court  shall  enter  judgment  in favor of the
27    Department and against the taxpayer for the amount  shown  to
28    be   due  by  the  final  assessment  or  the  revised  final
29    assessment, and such judgment shall be filed of record in the
30    court.  Such judgment shall bear the rate of interest set  in
31    the  Uniform  Penalty  and  Interest Act, but otherwise shall
32    have the same effect as other judgments.  The judgment may be
33    enforced,  and  all  laws  applicable  to   sales   for   the
34    enforcement  of  a judgment shall be applicable to sales made
 
                            -34-     LRB093 06358 SJM 06477 b
 1    under such judgments. The Department shall file the certified
 2    copy of its assessment, as herein provided, with the  Circuit
 3    Court  within  2  years  after  such assessment becomes final
 4    except when the taxpayer consents in writing to an  extension
 5    of such filing period.
 6        If,  when  the  cause of action for a proceeding in court
 7    accrues against a person, he or she is out of the State,  the
 8    action  may  be  commenced  within  the times herein limited,
 9    after his or her coming into or return to the State; and  if,
10    after the cause of action accrues, he or she departs from and
11    remains  out  of the State, the time of his or her absence is
12    no part of the time  limited  for  the  commencement  of  the
13    action;  but the foregoing provisions concerning absence from
14    the State shall not apply to any case in which, at  the  time
15    the cause of action accrues, the party against whom the cause
16    of  action  accrues is not a resident of this State. The time
17    within which a  court  action  is  to  be  commenced  by  the
18    Department  hereunder  shall  not run while the taxpayer is a
19    debtor in any proceeding under the Federal Bankruptcy Act nor
20    thereafter until 90 days after the Department is notified  by
21    such debtor of being discharged in bankruptcy.
22        No  claim  shall  be  filed  against  the  estate  of any
23    deceased person or a person under legal  disability  for  any
24    tax  or  penalty  or  part  of  either  except  in the manner
25    prescribed and within the time limited by the Probate Act  of
26    1975, as amended.
27        The  remedies provided for herein shall not be exclusive,
28    but all remedies available to creditors for the collection of
29    debts shall be available for the collection  of  any  tax  or
30    penalty due hereunder.
31        The  collection  of  tax or penalty by any means provided
32    for herein shall not be a bar to any prosecution  under  this
33    Act.
34        The  certificate of the Director of the Department to the
 
                            -35-     LRB093 06358 SJM 06477 b
 1    effect that a tax or amount required to be paid by  this  Act
 2    has  not been paid, that a return has not been filed, or that
 3    information has not been supplied pursuant to the  provisions
 4    of this Act, shall be prima facie evidence thereof.
 5        All of the provisions of Sections 5a, 5b, 5c, 5d, 5e, 5f,
 6    5g, 5i and 5j of the Retailers' Occupation Tax Act, which are
 7    not  inconsistent  with  this  Act,  and  Section  3-7 of the
 8    Uniform Penalty and Interest  Act  shall  apply,  as  far  as
 9    practicable,  to  the  subject matter of this Act to the same
10    extent as if such provisions were included herein. References
11    in such incorporated Sections of the  "Retailers'  Occupation
12    Tax  Act"  to  retailers, to sellers or to persons engaged in
13    the business of selling tangible personal property shall mean
14    distributors when used in this Act.
15    (Source: P.A. 92-322, eff. 1-1-02.)

16        (35 ILCS 130/9c) (from Ch. 120, par. 453.9c)
17        Sec. 9c.  "Transporter"  means  any  person  transporting
18    into  or  within  this  State original packages of cigarettes
19    which are not tax stamped as required by this Act, except:
20        (a)  A person  transporting  into  this  State  unstamped
21    original  packages  containing  a  total of not more than 500
22    2000 cigarettes in any single lot or shipment;
23        (b)  a licensed cigarette distributor in compliance  with
24    Section  3,  a  licensed manufacturer, or a licensed importer
25    under this Act;
26        (c)  a common carrier;
27        (d)  a  person  transporting  cigarettes  under   Federal
28    internal  bond  or custom control that are non-tax paid under
29    Chapter 52 of the Internal Revenue Code of 1954, as amended;
30        (e)  a person engaged in  transporting  cigarettes  to  a
31    cigarette  dealer  who  is properly licensed as a distributor
32    under  the  Illinois  Cigarette  Tax  Act  or  the   Illinois
33    Cigarette  Use Tax Act, or under the laws of any other state,
 
                            -36-     LRB093 06358 SJM 06477 b
 1    and  who  has  in  his  possession  during  the   course   of
 2    transporting  such  cigarettes  a bill of lading, waybill, or
 3    other similar commercial document which was issued by or  for
 4    a  manufacturer  of  cigarettes who holds a valid permit as a
 5    cigarette manufacturer under  Chapter  52,  Internal  Revenue
 6    Code  of  1954, as subsequently amended, and which shows that
 7    the cigarettes are being transported by or at  the  direction
 8    of such manufacturer to such licensed cigarette dealer.
 9        Any  transporter  desiring  to  possess  or  acquire  for
10    transportation  or  transport  upon  the  highways,  roads or
11    streets of this State more than 500 2000 cigarettes which are
12    not contained in original  packages  that  are  Illinois  tax
13    stamped shall obtain a permit from the Department authorizing
14    such  transporter to possess or acquire for transportation or
15    transport the cigarettes, and he shall have the permit in the
16    transporting vehicle during the period of  transportation  of
17    the  cigarettes.  The  application for the permit shall be in
18    such form and  shall  contain  such  information  as  may  be
19    prescribed  by  the  Department.  The  Department may issue a
20    permit for a single load or shipment or for a number of loads
21    or shipments to be transported under specified conditions.
22        Any transporter who ships  unstamped  cigarette  packages
23    within   or   into  this  State  other  than  to  a  licensed
24    manufacturer, importer, or distributor shall first file  with
25    the Department notice of the shipment.
26        Any  person  bringing into or conveying within this State
27    original packages of cigarettes that are not tax  stamped  as
28    required  by  this  Act  shall  carry, in the vehicle used to
29    convey the shipment, invoices or equivalent documentation  of
30    the shipment for all cigarettes in the shipment. The invoices
31    or  documentation shall show the true name and address of the
32    consignor or  seller,  the  true  name  and  address  of  the
33    consignee  or  purchaser,  and the quantity and brands of the
34    cigarettes so transported.
 
                            -37-     LRB093 06358 SJM 06477 b
 1        Any cigarettes transported  on  the  highways,  roads  or
 2    streets  of  this  State  under  conditions which violate any
 3    requirement of this Section, and the vehicle containing  such
 4    cigarettes,  are subject to seizure by the Department, and to
 5    confiscation and forfeiture in the same manner as is provided
 6    for in Section 18a of this  Act.  Any  such  confiscated  and
 7    forfeited  property  shall  be  sold or destroyed in the same
 8    manner and under the  same  conditions  as  provided  for  in
 9    Section  21 of this Act, with the proceeds from any such sale
10    being deposited in the State Treasury.
11        Any person who violates any requirement of  this  Section
12    is guilty of a Class 4 felony.
13        Any  transporter  who,  with intent to defeat or evade or
14    with intent to aid another to defeat or evade the tax imposed
15    by this Act, at any given time,  transports  40,000  or  more
16    cigarettes  upon the highways, roads or streets of this State
17    under  conditions  which  violate  any  requirement  of  this
18    Section shall be guilty of a Class 3 felony.
19    (Source: P.A. 83-1428.)

20        (35 ILCS 130/9d) (from Ch. 120, par. 453.9d)
21        Sec. 9d. If it appears, after claim therefor  filed  with
22    the  Department,  that  an  amount of tax or penalty has been
23    paid which was not due under this Act, whether as the  result
24    of  a  mistake  of  fact  or  an  error  of  law,  except  as
25    hereinafter  provided,  then  the  Department  shall  issue a
26    credit memorandum or  refund  to  the  person  who  made  the
27    erroneous  payment  or,  if  that person has died or become a
28    person  under  legal  disability,  to  his   or   her   legal
29    representative, as such.
30        If  it  is  determined that the Department should issue a
31    credit or refund under this Act,  the  Department  may  first
32    apply the amount thereof against any amount of tax or penalty
33    due  under  this  Act or under the Cigarette Use Tax Act from
 
                            -38-     LRB093 06358 SJM 06477 b
 1    the person entitled  to  such  credit  or  refund.  For  this
 2    purpose,  if  proceedings are pending to determine whether or
 3    not any tax or penalty is due under this  Act  or  under  the
 4    Cigarette  Use  Tax  Act from such person, the Department may
 5    withhold issuance of the credit or refund pending  the  final
 6    disposition  of such proceedings and may apply such credit or
 7    refund against any amount found to be due to  the  Department
 8    under this Act or under the Cigarette Use Tax Act as a result
 9    of  such  proceedings.  The balance, if any, of the credit or
10    refund shall be issued to the person entitled thereto.
11        If no tax or penalty is due and no proceeding is  pending
12    to  determine  whether  such  taxpayer  is  indebted  to  the
13    Department  for  tax  or  penalty,  the  credit memorandum or
14    refund shall be issued to the claimant; or (in the case of  a
15    credit  memorandum) the credit memorandum may be assigned and
16    set over by the lawful holder thereof, subject to  reasonable
17    rules  of  the Department, to any other person who is subject
18    to this Act or the Cigarette Use  Tax  Act,  and  the  amount
19    thereof shall be applied by the Department against any tax or
20    penalty  due  or  to  become  due under this Act or under the
21    Cigarette Use Tax Act from such assignee.
22        As to any claim filed hereunder with  the  Department  on
23    and  after  each  January  1  and July 1, no amount of tax or
24    penalty  erroneously  paid  (either  in  total   or   partial
25    liquidation  of  a tax or penalty under this Act) more than 3
26    years prior to such January 1 and July 1, respectively, shall
27    be credited or refunded, except that if both  the  Department
28    and the taxpayer have agreed to an extension of time to issue
29    a  notice  of  tax liability under this Act, the claim may be
30    filed at any time prior  to  the  expiration  of  the  period
31    agreed upon.
32        If  the Department approves a claim for stamps affixed to
33    a product returned to a manufacturer or  for  replacement  of
34    stamps, the credit memorandum shall not exceed the face value
 
                            -39-     LRB093 06358 SJM 06477 b
 1    of stamps originally affixed, and replacement stamps shall be
 2    issued  only  in  an  amount equal to the value of the stamps
 3    previously affixed.  Higher denomination stamps shall not  be
 4    issued  as replacements for lower value stamps.  Distributors
 5    must prove the face value  of  the  stamps  which  have  been
 6    destroyed or returned to manufacturers when filing claims.
 7        Any credit or refund that is allowed under this Act shall
 8    bear  interest at the rate and in the manner set forth in the
 9    Uniform Penalty and Interest Act.
10        In case the Department determines that  the  claimant  is
11    entitled  to  a  refund,  such refund shall be made only from
12    such appropriation as may be available for that  purpose.  If
13    it appears unlikely that the amount appropriated would permit
14    everyone  having a claim allowed during the period covered by
15    such appropriation to elect to receive  a  cash  refund,  the
16    Department,  by  rule  or  regulation,  shall provide for the
17    payment of refunds in hardship cases and  shall  define  what
18    types of cases qualify as hardship cases.
19        If  the  Department  approves  a  claim  for the physical
20    replacement of cigarette tax stamps, the Department  (subject
21    to the same limitations as those provided for hereinbefore in
22    this  Section)  may  issue an assignable credit memorandum or
23    refund  to  the  claimant  or   to   the   claimant's   legal
24    representative.
25        The   provisions  of  Sections  6a,  6b  and  6c  of  the
26    Retailers' Occupation Tax Act which are not inconsistent with
27    this Act, shall apply, as far as practicable, to the  subject
28    matter  of  this Act to the same extent as if such provisions
29    were included herein.
30    (Source: P.A. 90-491, eff. 1-1-98.)

31        (35 ILCS 130/10b) (from Ch. 120, par. 453.10b)
32        Sec. 10b.  All information  received  by  the  Department
33    from  reports  or  consumer  returns filed under this Act, or
 
                            -40-     LRB093 06358 SJM 06477 b
 1    from any investigation conducted under  this  Act,  shall  be
 2    confidential,  except  for  official purposes, and any person
 3    who divulges any such information in any  manner,  except  in
 4    accordance  with  a  proper  judicial  order  or as otherwise
 5    provided by law, shall be guilty of a Class A misdemeanor.
 6        Nothing in this Act prevents the Director of Revenue from
 7    publishing or making available to the public  the  names  and
 8    addresses of persons filing reports or consumer returns under
 9    this  Act,  or reasonable statistics concerning the operation
10    of the tax by grouping the contents of  reports  or  consumer
11    returns  so  that the information in any individual report or
12    consumer return is not disclosed.
13        Nothing in this Act prevents the Director of Revenue from
14    divulging to the United States Government or  the  government
15    of  any  other  state,  or any officer or agency thereof, for
16    exclusively official purposes, information  received  by  the
17    Department  in  administering  this  Act,  provided that such
18    other governmental agency agrees  to  divulge  requested  tax
19    information to the Department.
20        The  furnishing  upon  request of the Auditor General, or
21    his authorized  agents,  for  official  use,  of  reports  or
22    consumer  returns filed and information related thereto under
23    this Act is deemed to  be  an  official  purpose  within  the
24    meaning of this Section.
25        The  furnishing  of  financial information to a home rule
26    unit with a  population  in  excess  of  2,000,000  that  has
27    imposed  a  tax similar to that imposed by this Act under its
28    home rule powers, upon request of the Chief Executive of  the
29    home  rule unit, is an official purpose within the meaning of
30    this Section, provided the home rule unit agrees  in  writing
31    to  the requirements of this Section. Information so provided
32    is subject to all confidentiality provisions of this Section.
33    The  written  agreement  shall   provide   for   reciprocity,
34    limitations   on   access,  disclosure,  and  procedures  for
 
                            -41-     LRB093 06358 SJM 06477 b
 1    requesting information.
 2        The Director may make  available  to  any  State  agency,
 3    including  the Illinois Supreme Court, which licenses persons
 4    to engage  in  any  occupation,  information  that  a  person
 5    licensed by such agency has failed to file reports or pay the
 6    tax  returns  under  this  Act  or  pay  the tax, penalty and
 7    interest shown therein,  or  has  failed  to  pay  any  final
 8    assessment  of  tax,  penalty or interest due under this Act.
 9    An assessment is final when  all  proceedings  in  court  for
10    review of such assessment have terminated or the time for the
11    taking  thereof  has  expired  without such proceedings being
12    instituted.
13        The Director shall make available for  public  inspection
14    in  the Department's principal office and for publication, at
15    cost, administrative decisions issued on or after January  1,
16    1995. These decisions are to be made available in a manner so
17    that the following taxpayer information is not disclosed:
18             (1)  The   names,   addresses,   and  identification
19        numbers of the taxpayer, related entities, and employees.
20             (2)  At the sole discretion of the  Director,  trade
21        secrets  or  other confidential information identified as
22        such by the taxpayer, no later than 30 days after receipt
23        of an administrative  decision,  by  such  means  as  the
24        Department shall provide by rule.
25        The  Director  shall  determine the appropriate extent of
26    the deletions allowed in paragraph  (2).  In  the  event  the
27    taxpayer  does  not submit deletions, the Director shall make
28    only the deletions specified in paragraph (1).
29        The Director shall make available for  public  inspection
30    and  publication  an  administrative decision within 180 days
31    after the issuance of the administrative decision.  The  term
32    "administrative  decision" has the same meaning as defined in
33    Section 3-101 of Article III of the Code of Civil  Procedure.
34    Costs collected under this Section shall be paid into the Tax
 
                            -42-     LRB093 06358 SJM 06477 b
 1    Compliance and Administration Fund.
 2        Nothing  contained in this Act shall prevent the Director
 3    from divulging  information  to  any  person  pursuant  to  a
 4    request  or  authorization  made  by  the  taxpayer  or by an
 5    authorized representative of the taxpayer.
 6    (Source: P.A. 90-491, eff. 1-1-98.)

 7        (35 ILCS 130/11) (from Ch. 120, par. 453.11)
 8        Sec. 11.  Records to be kept by manufacturers, retailers,
 9    and distributors; inspection; revocation of license.
10        (a)  Every   manufacturer,   retailer,   importer,    and
11    distributor  of  cigarettes,  who  is  required  to procure a
12    license under this Act, shall keep within  Illinois,  at  his
13    licensed address, complete and accurate records of cigarettes
14    held,  purchased,  manufactured,  brought  in or caused to be
15    brought in from without the State,  and  sold,  or  otherwise
16    disposed  of  (other  than  in  a  retail  transaction with a
17    consumer), and shall preserve and keep within Illinois at his
18    licensed  address  all  invoices,  bills  of  lading,   sales
19    records,  copies  of bills of sale, inventory at the close of
20    each period for which a return is required of all  cigarettes
21    on hand and of all cigarette revenue stamps, both affixed and
22    unaffixed,  and other pertinent papers and documents relating
23    to  the  manufacture,  purchase,  sale  or   disposition   of
24    cigarettes. The invoices or documentation shall show the name
25    and  address  of  the  other  party and the quantity by brand
26    style of the cigarettes involved in the transaction.
27        (b)  Records  required  under  this  Section   shall   be
28    preserved  on  the premises described in the relevant license
29    in such manner as to ensure permanency and accessibility  for
30    inspection.  With  the  Department's permission, persons with
31    multiple places of business may retain  centralized  records,
32    but   shall  transmit  duplicates  of  the  invoices  of  the
33    equivalent documentation to each place of business within  24
 
                            -43-     LRB093 06358 SJM 06477 b
 1    hours  upon  the  request  of  the  Department  or  its  duly
 2    authorized agents and employees.
 3        (c)  All books and records and other papers and documents
 4    that are required by this Act to be kept shall be kept in the
 5    English  language,  and  shall, at all times during the usual
 6    business hours of the day, be subject to  inspection  by  the
 7    Department  or  its duly authorized agents and employees, and
 8    by the United States Secretary of the Treasury or his or  her
 9    duly  authorized  agents and employees. The Department at its
10    sole discretion may share the records and reports required by
11    this Section with other  law  enforcement  officials  of  the
12    federal  government or other states. The Department may adopt
13    rules that establish requirements, including record forms and
14    formats, for records required to be kept  and  maintained  by
15    licensees  taxpayers. For purposes of this Section, "records"
16    means all data maintained by the licensee taxpayer, including
17    data  on  paper,  microfilm,  microfiche  or  any   type   of
18    machine-sensible  data  compilation.  Those  books,  records,
19    papers  and  documents  shall be preserved for a period of at
20    least 5 3 years after the date of the documents, or the  date
21    of   the   entries  appearing  in  the  records,  unless  the
22    Department,  in  writing,  authorizes  their  destruction  or
23    disposal at an earlier date.
24        (d)  At all times during the usual business hours of  the
25    day  any  duly authorized agent or employee of the Department
26    may  enter  any  place  of  business  of  the   manufacturer,
27    retailer, importer, or distributor, without a search warrant,
28    and  inspect  the  records  and  premises  and  the  stock or
29    packages  of  cigarettes  and  the  vending  devices  therein
30    contained, to determine whether any of the provisions of this
31    Act are being violated. If such agent or employee  is  denied
32    free  access or is hindered or interfered with in making such
33    examination  as  herein  provided,   the   license   of   the
34    distributor  at  such premises shall be subject to revocation
 
                            -44-     LRB093 06358 SJM 06477 b
 1    by the Department.
 2        (e)  In  any  case  where  the  Department  or  its  duly
 3    authorized agent or employee, or any  peace  officer  of  the
 4    State,  has  knowledge  or reasonable grounds to believe that
 5    any vehicle is transporting cigarettes in violation  of  this
 6    Act,  the  Department,  its  agent  or employee, or the peace
 7    officer, is authorized to stop the vehicle and inspect it for
 8    contraband cigarettes.
 9    (Source: P.A. 88-480.)

10        (35 ILCS 130/13) (from Ch. 120, par. 453.13)
11        Sec. 13. Whenever any original package of  cigarettes  is
12    found  in  the  place of business or in the possession of any
13    person who is not  a  licensed  distributor  under  this  Act
14    without  proper  stamps  affixed  thereto,  or  an authorized
15    substitute therefor imprinted thereon, underneath the  sealed
16    transparent  wrapper of such original package, as required by
17    this Act, the prima facie presumption shall arise  that  such
18    original  package of cigarettes is kept therein or is held by
19    such person in violation of the provisions of this Act.
20    (Source: Laws 1953, p. 255.)

21        (35 ILCS 130/13a new)
22        Sec. 13a. Failure to pay tax; punishment. Any person who,
23    with intent to defraud the State,  refuses  to  pay  any  tax
24    imposed  by  this  Act  or attempts in any manner to evade or
25    defeat the tax or the payment thereof shall be  guilty  of  a
26    Class  3 felony and, in addition to any term of imprisonment,
27    may be fined up to $10,000 or 5 times the retail value of the
28    cigarettes involved, whichever is greater.

29        (35 ILCS 130/14) (from Ch. 120, par. 453.14)
30        Sec. 14.  Any person required by this Act to keep records
31    of any kind whatsoever, who shall fail to keep the records so
 
                            -45-     LRB093 06358 SJM 06477 b
 1    required or who shall falsify such records, shall  be  guilty
 2    of  a  Class  4  felony,  and  in  addition  to  any  term of
 3    imprisonment, may be fined up  to  $10,000  or  5  times  the
 4    retail   value  of  the  cigarettes  involved,  whichever  is
 5    greater.
 6    (Source: P.A. 83-1428.)

 7        (35 ILCS 130/15) (from Ch. 120, par. 453.15)
 8        Sec. 15.  Any person who shall fail  to  safely  preserve
 9    the records required by Section 11 of this Act for the period
10    of  three  years,  as  required therein, in such manner as to
11    insure permanency and accessibility  for  inspection  by  the
12    Department, shall be guilty of a Class A misdemeanor business
13    offense  and, in addition to any term of imprisonment, may be
14    fined up to $5,000.
15    (Source: P.A. 88-88.)

16        (35 ILCS 130/15a new)
17        Sec. 15a. Failure to  comply  with  Act  with  intent  to
18    defraud;  punishment. Any person who fails to comply with any
19    requirements of this Act, with  the  intent  to  defraud  the
20    State,  is guilty of a Class 3 felony and, in addition to any
21    term of imprisonment, may be fined up to $10,000 or  5  times
22    the  retail  value  of  the cigarettes involved, whichever is
23    greater.

24        (35 ILCS 130/15b new)
25        Sec. 15b. Failure to comply  with  Act;  punishment.  Any
26    person who knowingly fails to comply with any requirements of
27    this  Act  or  of rules adopted under the Act shall, for each
28    such offense, be fined not more than $5,000 or imprisoned not
29    more than 1 year or both.

30        (35 ILCS 130/18) (from Ch. 120, par. 453.18)
 
                            -46-     LRB093 06358 SJM 06477 b
 1        Sec. 18. Any duly authorized employee of  the  Department
 2    may  arrest  without  warrant  any  person  committing in his
 3    presence a violation of any of the provisions  of  this  Act,
 4    and  may  without  a  search  warrant  inspect all cigarettes
 5    located in any place  of  business  and  seize  any  original
 6    packages  not  tax  stamped  or  tax imprinted underneath the
 7    sealed transparent  wrapper  of  such  original  packages  in
 8    accordance  with  the  provisions of this Act and any vending
 9    device in which such packages may be found, and such original
10    packages or vending devices so seized  shall  be  subject  to
11    confiscation and forfeiture as hereinafter provided.
12    (Source: P.A. 82-1009.)

13        (35 ILCS 130/18a) (from Ch. 120, par. 453.18a)
14        Sec.   18a.   After  seizing  any  original  packages  of
15    cigarettes, or cigarette  vending  devices,  as  provided  in
16    Section  18  of this Act, the Department shall hold a hearing
17    and  shall  determine  whether  such  original  packages   of
18    cigarettes,  at  the time of their seizure by the Department,
19    were not tax stamped or tax imprinted underneath  the  sealed
20    transparent  wrapper  of such original packages in accordance
21    with this Act, or whether such cigarette vending devices,  at
22    the  time  of  their  seizure  by  the  Department, contained
23    original packages  of  cigarettes  not  tax  stamped  or  tax
24    imprinted  underneath  the sealed transparent wrapper of such
25    original packages as required by  this  Act.  The  Department
26    shall give not less than 7 days' notice of the time and place
27    of such hearing to the owner of such property if he is known,
28    and  also  to  the person in whose possession the property so
29    taken was found, if such person is known and if  such  person
30    in  possession  is  not  the  owner of said property. In case
31    neither the owner  nor  the  person  in  possession  of  such
32    property  is known, the Department shall cause publication of
33    the time and place of such hearing to be made at  least  once
 
                            -47-     LRB093 06358 SJM 06477 b
 1    in  each  week  for  3  weeks  successively in a newspaper of
 2    general circulation in the county where such hearing is to be
 3    held.
 4        If, as the result of such hearing, the  Department  shall
 5    determine  that  the  original  packages of cigarettes seized
 6    were at the time of seizure not tax stamped or tax  imprinted
 7    underneath  the  sealed  transparent wrapper of such original
 8    packages as required by  this  Act,  or  that  any  cigarette
 9    vending  device at the time of its seizure contained original
10    packages of cigarettes  not  tax  stamped  or  tax  imprinted
11    underneath  the  sealed  transparent wrapper of such original
12    packages as required by this Act, the Department shall  enter
13    an  order  declaring  such original packages of cigarettes or
14    such cigarette vending devices confiscated and  forfeited  to
15    the  State,  and to be held by the Department for disposal by
16    it as provided in Section 21  of  this  Act.  The  Department
17    shall give notice of such order to the owner of such property
18    if  he  is  known, and also to the person in whose possession
19    the property so taken was found, if such person is known  and
20    if  such  person  in  possession  is  not  the  owner of said
21    property. In  case  neither  the  owner  nor  the  person  in
22    possession  of  such  property is known, the Department shall
23    cause publication of such order to be made at least  once  in
24    each  week for 3 weeks successively in a newspaper of general
25    circulation in the county where such hearing was held.
26    (Source: P.A. 76-684.)

27        (35 ILCS 130/18b) (from Ch. 120, par. 453.18b)
28        Sec. 18b.  Forfeiture  of  fixtures  and  equipment.  All
29    fixtures and all other materials and personal property on the
30    premises  of  any distributor or retailer who, with intent to
31    defraud the State, fails to keep or make any record,  return,
32    report, or inventory required by this Act, keeps or makes any
33    false  or  fraudulent  record,  return,  report, or inventory
 
                            -48-     LRB093 06358 SJM 06477 b
 1    required by this Act, refuses to pay any tax imposed by  this
 2    Act,  or  attempts  in  any  manner  to  evade  or defeat the
 3    requirements of this Act shall be forfeited to the State  and
 4    be  held  by the Department for disposal by it as provided in
 5    Section 21 of  this  Act.  With  the  exception  of  licensed
 6    distributors,   anyone  possessing  cigarettes  contained  in
 7    original packages which are not tax stamped  as  required  by
 8    this  Act,  or  which  are  improperly  tax stamped, shall be
 9    liable to pay, to the Department for  deposit  in  the  State
10    Treasury,   a  penalty  of  $15  for  each  such  package  of
11    cigarettes in excess of 100 packages.  Such  penalty  may  be
12    recovered by the Department in a civil action.
13    (Source: P.A. 83-1428.)

14        (35 ILCS 130/18c)
15        Sec.  18c.  Failure  to  comply  with Act; civil penalty.
16    Whoever omits, neglects, or refuses to comply with  any  duty
17    imposed upon him or her by this Act, or to do, or cause to be
18    done,  any  of  the  things  required  by  this  Act, or does
19    anything prohibited by this Act shall,  in  addition  to  any
20    other penalty provided in this Act, be liable to a penalty of
21    $1,000,  or  5  times  the  retail  value  of  the cigarettes
22    involved, whichever is greater, to be recovered,  with  costs
23    of  suit,  in  a civil action. Possession of not less than 10
24    and not more than 100 original packages not  tax  stamped  or
25    improperly  tax  stamped;  penalty.   With  the  exception of
26    licensed distributors, anyone possessing not less than 10 and
27    not  more  than  100  packages  of  cigarettes  contained  in
28    original packages that are not tax  stamped  as  required  by
29    this  Act,  or  that are improperly tax stamped, is liable to
30    pay to the Department, for deposit into  the  Tax  Compliance
31    and  Administration  Fund,  a  penalty  of  $10 for each such
32    package  of  cigarettes,  unless  reasonable  cause  can   be
33    established  by  the person upon whom the penalty is imposed.
 
                            -49-     LRB093 06358 SJM 06477 b
 1    Reasonable cause shall be determined  in  each  situation  in
 2    accordance with rules adopted by the Department.
 3    (Source: P.A. 92-322, eff. 1-1-02.)

 4        (35 ILCS 130/18d new)
 5        Sec.  18d.  Failure  to  pay  tax; civil penalty. Whoever
 6    fails to pay  any  tax  imposed  by  this  Act  at  the  time
 7    prescribed  by  law  or rules shall, in addition to any other
 8    penalty provided in this Act, be liable to  a  penalty  of  5
 9    times the tax due but unpaid.

10        (35 ILCS 130/20) (from Ch. 120, par. 453.20)
11        Sec.  20.  Whenever any peace officer of the State or any
12    duly authorized officer or employee of the  Department  shall
13    have  reason  to  believe  that any violation of this Act has
14    occurred and that the person so violating the Act has in his,
15    her or its possession any original package of cigarettes, not
16    tax  stamped  or  tax   imprinted   underneath   the   sealed
17    transparent  wrapper  of such original package as required by
18    this Act, or any  vending  device  containing  such  original
19    packages  to  which stamps have not been affixed, or on which
20    an authorized substitute for stamps has  not  been  imprinted
21    underneath  the  sealed  transparent wrapper of such original
22    packages, as required by this Act, he may file or cause to be
23    filed his complaint in writing, verified by  affidavit,  with
24    any  court  within  whose  jurisdiction  the  premises  to be
25    searched are situated, stating  the  facts  upon  which  such
26    belief  is  founded,  the  premises  to  be searched, and the
27    property to be seized,  and  procure  a  search  warrant  and
28    execute  the same. Upon the execution of such search warrant,
29    the peace officer, or officer or employee of the  Department,
30    executing  such  search warrant shall make due return thereof
31    to the court issuing the same, together with an inventory  of
32    the  property  taken  thereunder.  The  court shall thereupon
 
                            -50-     LRB093 06358 SJM 06477 b
 1    issue process against the owner of such  property  if  he  is
 2    known;  otherwise,  such  process shall be issued against the
 3    person in whose possession the property so taken is found, if
 4    such person is known. In case  of  inability  to  serve  such
 5    process  upon  the  owner  or the person in possession of the
 6    property  at  the  time  of  its  seizure,  as   hereinbefore
 7    provided, notice of the proceedings before the court shall be
 8    given  as  required  by  the  statutes of the State governing
 9    cases of Attachment. Upon the  return  of  the  process  duly
10    served  or  upon the posting or publishing of notice made, as
11    hereinabove provided, the court or jury, if a jury  shall  be
12    demanded,  shall  proceed  to  determine  whether or not such
13    property so seized was held or possessed in violation of this
14    Act, or whether, if a vending device has been so  seized,  it
15    contained  at  the  time of its seizure original packages not
16    tax  stamped  or  tax   imprinted   underneath   the   sealed
17    transparent  wrapper of such original packages as required by
18    this Act. In case of a finding  that  the  original  packages
19    seized  were  not tax stamped or tax imprinted underneath the
20    sealed transparent  wrapper  of  such  original  packages  in
21    accordance  with  the  provisions  of  this  Act, or that any
22    vending device so seized contained at the time of its seizure
23    original packages not tax stamped or tax imprinted underneath
24    the sealed transparent wrapper of such original  packages  in
25    accordance with the provisions of this Act, judgment shall be
26    entered confiscating and forfeiting the property to the State
27    and  ordering its delivery to the Department, and in addition
28    thereto, the court shall have power to  tax  and  assess  the
29    costs of the proceedings.
30        When  any  original  packages  or  any  cigarette vending
31    device shall have been declared forfeited to the State by any
32    court, as hereinbefore provided, and  when  such  confiscated
33    and  forfeited  property  shall  have  been  delivered to the
34    Department, as provided in  this  Act,  the  said  Department
 
                            -51-     LRB093 06358 SJM 06477 b
 1    shall  sell  such  property for the best price obtainable and
 2    shall forthwith pay over the proceeds of  such  sale  to  the
 3    State Treasurer; provided, however, that if the value of such
 4    property  to  be  sold at any one time shall be $500 or more,
 5    such property shall be sold only  to  the  highest  and  best
 6    bidder  on  such terms and conditions and on open competitive
 7    bidding after public advertisement, in such  manner  and  for
 8    such terms as the Department, by rule, may prescribe.
 9        Upon   making   such  a  sale  of  original  packages  of
10    cigarettes which  were  not  tax  stamped  or  tax  imprinted
11    underneath  the  sealed  transparent wrapper of such original
12    packages as required by this Act, the Department shall  affix
13    a  distinctive stamp to each of the original packages so sold
14    indicating that the same are sold pursuant to the  provisions
15    of this Section.
16    (Source: Laws 1965, p. 3707.)

17        (35 ILCS 130/21) (from Ch. 120, par. 453.21)
18        Sec.  21.  Destruction  of  forfeited cigarettes; sale of
19    forfeited vending devices or fixtures.
20        (a)  All cigarettes forfeited to the State under this Act
21    shall be destroyed.
22        (a-5)  When any fixtures or  equipment  or  any  original
23    packages  of cigarettes or any cigarette vending device shall
24    have been declared forfeited to the State by the  Department,
25    as  provided  in  Section  18a  of  this  Act,  and  when all
26    proceedings for  the  judicial  review  of  the  Department's
27    decision  have  terminated,  the    Department  shall, to the
28    extent that its decision is sustained on  review,  sell  such
29    property  for  the  best price obtainable and shall forthwith
30    pay over the proceeds of such sale to the State Treasurer. If
31    the value of such property to be sold at any one time is $500
32    or more, however, such property shall be  sold  only  to  the
33    highest  and  best bidder on such terms and conditions and on
 
                            -52-     LRB093 06358 SJM 06477 b
 1    open competitive bidding after public advertisement, in  such
 2    manner  and  for  such  terms as the Department, by rule, may
 3    prescribe.
 4        (b)  If no complaint for review, as provided in Section 8
 5    of this Act, has been filed within the time required  by  the
 6    Administrative  Review  Law,  and  if  no stay order has been
 7    entered thereunder, the Department shall proceed  to  destroy
 8    the  forfeited  cigarettes  and  to  sell the other forfeited
 9    property for the best price obtainable  and  shall  forthwith
10    pay  over  the  proceeds of such sale to the State Treasurer.
11    If the value of such property to be sold at any one  time  is
12    $500  or  more,  however, such property shall be sold only to
13    the highest and best bidder on such terms and conditions  and
14    on  open  competitive  bidding after public advertisement, in
15    such manner and for such terms as the  Department,  by  rule,
16    may prescribe.
17        (c)  Upon making a sale of unstamped original packages of
18    cigarettes  as provided in this Section, the Department shall
19    affix a distinctive stamp to each of the original packages so
20    sold indicating that the same are sold under this Section.
21        (d)  Notwithstanding the foregoing, any cigarettes seized
22    under this Act or under the Cigarette Use Tax Act may, at the
23    discretion of the Director of Revenue, be distributed to  any
24    eleemosynary institution within the State of Illinois.
25    (Source: P.A. 82-783.)

26        (35 ILCS 130/22) (from Ch. 120, par. 453.22)
27        Sec.   22.  Counterfeit   cigarettes;  counterfeiting  or
28    forging stamps; punishment.
29        (a) Notwithstanding any other provision of law, the  sale
30    or  possession  for  sale  of  counterfeit  cigarettes  by  a
31    manufacturer, importer, distributor, or retailer shall result
32    in  the  seizure  of the product and related machinery by the
33    Department  or  any  law  enforcement  agency  and  shall  be
 
                            -53-     LRB093 06358 SJM 06477 b
 1    punishable as follows:
 2             (1) A first violation involving a total quantity  of
 3        less  than 2 cartons of cigarettes shall be punishable by
 4        a fine of $1,000 or 5  times  the  retail  value  of  the
 5        cigarettes    involved,    whichever   is   greater,   or
 6        imprisonment not to exceed 5 years, or both the fine  and
 7        imprisonment.
 8             (2)   A   subsequent  violation  involving  a  total
 9        quantity of less than 2 cartons of  cigarettes  shall  be
10        punishable  by  a  fine  of  $5,000 or 5 times the retail
11        value of the cigarettes involved, whichever  is  greater,
12        or  imprisonment  not to exceed 5 years, or both the fine
13        and the  imprisonment,  and  shall  also  result  in  the
14        revocation   by   the  Department  of  the  manufacturer,
15        importer, distributor, or retailer license.
16             (3) A first violation involving a total quantity  of
17        2  cartons of cigarettes or more shall be punishable by a
18        fine of $2,000  or  5  times  the  retail  value  of  the
19        cigarettes    involved,    whichever   is   greater,   or
20        imprisonment not to exceed 5 years, or both the fine  and
21        imprisonment.
22             (4) A subsequent violation involving a quantity of 2
23        cartons  of  cigarettes  or more shall be punishable by a
24        fine of $50,000 or  5  times  the  retail  value  of  the
25        cigarettes    involved,    whichever   is   greater,   or
26        imprisonment not to exceed 5 years, or both the fine  and
27        imprisonment,  and shall also result in the revocation by
28        the   Department   of   the    manufacturer,    importer,
29        distributor, or retailer license.
30        For  purposes  of  this  Section,  counterfeit cigarettes
31    includes cigarettes that have false manufacturing labels. Any
32    counterfeit cigarette  seized  by  the  Department  shall  be
33    destroyed.
34        (b)  Any  person  who  (1)  (a)  falsely  or fraudulently
 
                            -54-     LRB093 06358 SJM 06477 b
 1    makes, forges, alters or counterfeits any stamp provided  for
 2    herein,   (2)  (b)  causes  or  procures  to  be  falsely  or
 3    fraudulently made, forged, altered or counterfeited any  such
 4    stamp,  ((3)  (c)  knowingly  and wilfully utters, publishes,
 5    passes or tenders as genuine any such false, altered,  forged
 6    or  counterfeited  stamp,  (4)  (d)  falsely  or fraudulently
 7    makes, forges, alters or counterfeits any tax imprint  on  an
 8    original  package  of  cigarettes inside a sealed transparent
 9    wrapper, (5) (e) causes or procures falsely  or  fraudulently
10    to  be  made,  forged,  altered or counterfeited any such tax
11    imprint or (6) (f) knowingly and wilfully utters,  publishes,
12    passes  or tenders as genuine any such false, altered, forged
13    or counterfeited tax imprint, for the purpose of evading  the
14    tax imposed by this Act shall be guilty of a Class 2 felony.
15    (Source: P.A. 83-1428.)

16        (35 ILCS 130/23) (from Ch. 120, par. 453.23)
17        Sec.  23.  Every  distributor  or  other person who shall
18    knowingly and wilfully sell or offer for  sale  any  original
19    package,  as  defined in this Act, having affixed thereto any
20    fraudulent, spurious,  imitation  or  counterfeit  stamp,  or
21    stamp  which  has been previously affixed, or affixes a stamp
22    which has previously been affixed to an original package,  or
23    who  shall  knowingly and wilfully sell or offer for sale any
24    original package, as defined in this  Act,  having  imprinted
25    thereon underneath the sealed transparent wrapper thereof any
26    fraudulent,  spurious,  imitation or counterfeit tax imprint,
27    shall be deemed guilty of a Class 2 felony.
28    (Source: P.A. 83-1428.)

29        (35 ILCS 130/24) (from Ch. 120, par. 453.24)
30        Sec. 24.  Punishment for sale or possession of  unstamped
31    packages.
32        (a)  Any  person  other  than  a licensed distributor who
 
                            -55-     LRB093 06358 SJM 06477 b
 1    sells, offers for sale, or has in his possession with  intent
 2    to  sell  or offer for sale, more than 100 original packages,
 3    not tax  stamped  or  tax  imprinted  underneath  the  sealed
 4    transparent  wrapper  of  such original package in accordance
 5    with this Act, shall be guilty of a Class 3 4 felony and,  in
 6    addition to any term of imprisonment, may be fined $10,000 or
 7    5   times  the  retail  value  of  the  cigarettes  involved,
 8    whichever is greater.
 9        (a-5)  Any person other than a licensed  distributor  who
10    sells,  offers for sale, or has in his possession with intent
11    to sell or offer for sale, 100 or  fewer  original  packages,
12    not  tax  stamped  or  tax  imprinted  underneath  the sealed
13    transparent wrapper of the  original  package  in  accordance
14    with  this  Act,  is  guilty of a Class A misdemeanor for the
15    first offense and a Class 3  4  felony  for  each  subsequent
16    offense  and, in addition to any term of imprisonment, may be
17    fined $10,000 or 5 times the retail value of  the  cigarettes
18    involved, whichever is greater.
19        (b)  Any  distributor  who  sells  an original package of
20    cigarettes, not tax stamped or tax imprinted  underneath  the
21    sealed  transparent  wrapper  of  such  original  package  in
22    accordance  with this Act, except when the sale is made under
23    such circumstances that the tax imposed by this Act  may  not
24    legally  be levied because of the Constitution or laws of the
25    United States, shall be guilty of a Class 3 felony   and,  in
26    addition to any term of imprisonment, may be fined $10,000 or
27    5   times  the  retail  value  of  the  cigarettes  involved,
28    whichever is greater.
29    (Source: P.A. 92-322, eff. 1-1-02.)

30        (35 ILCS 130/25) (from Ch. 120, par. 453.25)
31        Sec.  25.   Failure  to  make   report;   false   report;
32    punishment.  Any person, or any officer, agent or employee of
33    any  person, required by this Act to make, file, render, sign
 
                            -56-     LRB093 06358 SJM 06477 b
 1    or verify any report  or  return,  who  makes  any  false  or
 2    fraudulent report or files any false or fraudulent return, or
 3    who  shall  fail to make such report or file such return when
 4    due, shall be guilty of a Class 4 felony and, in addition  to
 5    any  term  of  imprisonment,  may be fined up to $10,000 or 5
 6    times the retail value of the cigarettes involved,  whichever
 7    is greater.
 8    (Source: P.A. 83-1428.)

 9        (35 ILCS 130/31 new)
10        Sec. 31. Delivery sales of cigarettes.
11        (a)  Definitions; requirements for delivery sales.
12             (1)  For  purposes of this Section, the terms listed
13        below have the following meanings:
14                  (A)  "Delivery  sale"   means   any   sale   of
15             cigarettes to a consumer in Illinois where either:
16                       (i)  the  purchaser  submits the order for
17                  the sale by means  of  a  telephonic  or  other
18                  method of voice transmission, the mails, or any
19                  other  delivery  service,  or  the  Internet or
20                  other online service; or
21                       (ii)  the cigarettes are delivered by  use
22                  of the mails or other delivery service.
23                  A   sale   of  cigarettes  that  satisfies  the
24             criteria in this subdivision (a)(1)(A)  shall  be  a
25             delivery  sale  regardless  of whether the seller is
26             located  within  or  outside  of  this  State.   For
27             purposes of this subdivision (a)(1)(A), any sale  of
28             cigarettes  to  an individual in this State shall be
29             treated  as  a  sale  to  a  consumer   unless   the
30             individual  is licensed as a distributor or retailer
31             of cigarettes by the Department.
32                  (B)  "Delivery  service"   means   any   person
33             (including  the U.S. Postal Service) that is engaged
 
                            -57-     LRB093 06358 SJM 06477 b
 1             in the commercial delivery of letters, packages,  or
 2             other containers.
 3                  (C)  "Minor"  means  any individual to whom the
 4             sale of cigarettes is  prohibited  by  the  Sale  of
 5             Tobacco to Minors Act.
 6                  (D)  "Shipping  container" means a container in
 7             which cigarettes are shipped in  connection  with  a
 8             delivery sale.
 9                  (E)  "Shipping   documents"   means   bills  of
10             lading, airbills, U.S. Postal Service forms, or  any
11             other  documents used to evidence the undertaking by
12             a delivery service to deliver letters, packages,  or
13             other containers.
14             (2)  No   person  shall  make  a  delivery  sale  of
15        cigarettes to any minor.
16             (3)  Each person taking a delivery sale order  shall
17        comply with:
18                  (A) the age verification requirements set forth
19             in subsection (b) of this Section;
20                  (B)  the  disclosure  requirements set forth in
21             subsection (c) of this Section;
22                  (C)  the  shipping   requirements   set   forth
23             subsection (d) of this Section;
24                  (D) the registration and reporting requirements
25             set forth in subsection (e) of this Section;
26                  (E)  the  tax collection requirements set forth
27             in subsection (f) of this Section; and
28                  (F) all other  laws  of  this  State  generally
29             applicable   to   sales  of  cigarettes  that  occur
30             entirely  within  this  State,  including,  but  not
31             limited to, those laws imposing:
32                       (i) excise taxes;
33                       (ii)) sales taxes;
34                       (iii)    licensing    and     tax-stamping
 
                            -58-     LRB093 06358 SJM 06477 b
 1                  requirements; and
 2                       (iv) escrow or other payment obligations.
 3        (b) Age verification requirements.
 4             (1)  No  person  shall  mail  or  ship cigarettes in
 5        connection with a  delivery  sale  order  unless,  before
 6        mailing  or shipping the cigarettes, the person accepting
 7        the delivery sale order first:
 8                  (A) obtains from  the  prospective  customer  a
 9             certification that includes:
10                       (i)   reliable   confirmation   that   the
11                  purchaser is not a minor; and
12                       (ii) a statement signed by the prospective
13                  purchaser  in  writing  and  under  penalty  of
14                  perjury that:
15                            (aa)  certifies    the    prospective
16                       purchaser's address and date of birth; and
17                            (bb)  confirms  that  the prospective
18                       purchaser understands that signing another
19                       person's  name  to  the  certification  is
20                       illegal, and that the sale  of  cigarettes
21                       to   minors   is  illegal,  and  that  the
22                       purchase  of  cigarettes  by   minors   is
23                       illegal  under  the  Sale  of  Tobacco  to
24                       Minors Act;
25                  (B)  makes  a  good-faith  effort to verify the
26             information contained in the certification  provided
27             by the prospective purchaser pursuant to subdivision
28             (b)(1)(A) against a federal database established for
29             that  purpose  if  one  exists,  or  a  commercially
30             available database;
31                  (C)  sends  to  the  prospective purchaser, via
32             e-mail or other  means,  a  notice  that  meets  the
33             requirements  of  subsection (c) of this Section and
34             requests confirmation that the delivery  sale  order
 
                            -59-     LRB093 06358 SJM 06477 b
 1             was placed by the prospective purchaser;
 2                  (D)  receives  from  the  prospective purchaser
 3             confirmation, pursuant to the request  described  in
 4             subdivision  (b)(1)(C),  that  the individual placed
 5             the delivery sale order; and
 6                  (E) receives payment for the delivery sale from
 7             the prospective purchaser by a credit or debit  card
 8             that has been issued in the purchaser's name.
 9             (2)  Persons taking delivery sale orders may request
10        that  prospective   purchasers   provide   their   e-mail
11        addresses.
12        (c)  Disclosure  requirements.  The notice required under
13    subdivision (b)(1)(C) of this Section shall include:
14             (1) a prominent and clearly legible  statement  that
15        cigarette sales to minors are illegal;
16             (2)  a  prominent and clearly legible statement that
17        consists of one of the  warnings  set  forth  in  Section
18        4(a)(1) of the federal Cigarette Labeling and Advertising
19        Act (15 U.S.C. 1333(a)(1)) rotated on a quarterly basis;
20             (3)  a  prominent and clearly legible statement that
21        sales of cigarettes are restricted to  those  individuals
22        who  provide  verifiable  proof of age in accordance with
23        subsection (b) of this Section; and
24             (4) a prominent and clearly legible  statement  that
25        cigarette  sales  are  taxable  under  Section  2  and an
26        explanation of how the tax has been or is to be paid with
27        respect to the delivery sale.
28        (d) Shipping requirements.
29             (1) Each person who mails  or  ships  cigarettes  in
30        connection with a delivery sale order:
31                  (A)  shall  include  as  part  of  the shipping
32             documents  a   clear   and   conspicuous   statement
33             providing  as  follows:  "CIGARETTES:  ILLINOIS  LAW
34             PROHIBITS  SHIPPING  TO  INDIVIDUALS  UNDER  18  AND
 
                            -60-     LRB093 06358 SJM 06477 b
 1             REQUIRES THE PAYMENT OF ALL APPLICABLE TAXES";
 2                  (B)  shall  use a method of mailing or shipping
 3             that obligates the delivery service to require:
 4                       (i) the  purchaser  placing  the  delivery
 5                  sale  order,  or  an  adult  designated  by the
 6                  purchaser to sign to  accept  delivery  of  the
 7                  shipping container; and
 8                       (ii)  proof,  in  the  form  of  a  valid,
 9                  government-issued   identification   bearing  a
10                  photograph  of  the  individual  who  signs  to
11                  accept  delivery  of  the  shipping  container,
12                  demonstrating that (a) the individual is either
13                  the addressee or the adult  designated  by  the
14                  addressee  and  (b)  the  individual  is  not a
15                  minor, but such proof shall be required only if
16                  that individual appears to be under 27 years of
17                  age; and
18                  (C)  shall  provide  to  the  delivery  service
19             retained to deliver the delivery  sale  evidence  of
20             full compliance with subsection (e) of this Section.
21             (2)  A  delivery  service (including the U.S. Postal
22        Service) shall be in violation of this Act if it ships or
23        delivers cigarettes in connection with  a  delivery  sale
24        without  first  receiving the evidence of compliance with
25        subsection (e) of  this  Section  that  is  described  in
26        subdivision  (d)(1)(C)  or if it fails to comply with the
27        requirements  described  in  subdivision   (d)(1)(B)   or
28        subsection (e) of this Section:
29                  (A)  when  obligated to do so under a method of
30             shipping;
31                  (B) when delivering any container  pursuant  to
32             shipping    documents   containing   the   statement
33             described in subdivision (d)(1)(A); or
34                  (C) when  delivering  any  container  that  the
 
                            -61-     LRB093 06358 SJM 06477 b
 1             delivery   service  otherwise  has  reason  to  know
 2             contains cigarettes.
 3             (3) If the  person  taking  a  delivery  sale  order
 4        delivers  the  cigarettes  without  using  a  third-party
 5        delivery  service,  that  person  shall  comply  with all
 6        requirements of this Act applicable to a delivery service
 7        and shall be in violation of this  Act  if  it  fails  to
 8        comply with any applicable requirement.
 9        (e) Registration and reporting requirements.
10             (1)   Registration   requirement.  Prior  to  making
11        delivery sales or shipping cigarettes in connection  with
12        any  delivery  sales,  every  person  shall file with the
13        Department a statement setting forth the  person's  name,
14        trade  name,  and  the  address of the person's principal
15        place of business and any other place of business.
16             (2) Reporting requirement. Not later than  the  10th
17        day  of  each calendar month, each person that has made a
18        delivery sale  or  shipped  or  delivered  cigarettes  in
19        connection  with  any  delivery  sale during the previous
20        calendar  month  shall  file  with   the   Department   a
21        memorandum  or  a  copy  of the invoice that provides for
22        each and every delivery sale:
23                  (A) the name and address of the  individual  to
24             whom the delivery sale was made;
25                  (B)  the brand or brands of the cigarettes that
26             were sold in the delivery sale; and
27                  (C) the quantity of cigarettes that  were  sold
28             in the delivery sale.
29        (f)  Collection of taxes. No person shall make a delivery
30    sale of any cigarettes, the packages of which do not bear any
31    tax stamp required by this Act.
32        (g) Penalties.
33             (1) In general.
34                  (A)  First  offenses.   Except   as   otherwise
 
                            -62-     LRB093 06358 SJM 06477 b
 1             provided  in  this  Section, the first time a person
 2             violates any provision of this Section,  the  person
 3             shall be fined $1,000 or 5 times the retail value of
 4             the cigarettes involved, whichever is greater.
 5                  (B)  Subsequent  offenses.  In  the  case  of a
 6             second or subsequent violation of this Section,  the
 7             person  shall  be fined $5,000 or 5 times the retail
 8             value  of  the  cigarettes  involved,  whichever  is
 9             greater.
10             (2) Knowing offenses  by  persons.  Any  person  who
11        knowingly  violates  any provision of this Section or who
12        knowingly  and  falsely  submits  a  certification  under
13        subdivision (b)(1)(A) in another person's name shall, for
14        each offense, be fined $10,000  or  5  times  the  retail
15        value  of  the cigarettes involved, whichever is greater,
16        imprisoned not more than 5 years, or both  the  fine  and
17        imprisonment.
18             (3) Failure to pay tax. Whoever fails to pay any tax
19        required in connection with a delivery sale shall pay, in
20        addition  to  any other penalty, a penalty of 5 times the
21        amount of the tax due but unpaid.
22             (4) Forfeiture.
23                  (A) Any cigarettes sold or attempted to be sold
24             in a delivery sale that do not meet the requirements
25             of this Section shall be forfeited to this State and
26             destroyed.
27                  (B) All  fixtures,  equipment,  and  all  other
28             materials  and  personal property on the premises of
29             any person who, with  the  intent  to  defraud  this
30             State,  fails  to satisfy any of the requirements of
31             this Section shall be forfeited to this State.
32        (h)  Enforcement.  The  Attorney  General,  his  or   her
33    designee, or any person who holds a permit under section 5712
34    of  title 26 of the United States Code may bring an action in
 
                            -63-     LRB093 06358 SJM 06477 b
 1    the appropriate court in this State to  prevent  or  restrain
 2    violations  of  this  Section  by  any  person (or any person
 3    controlling that person).

 4        (35 ILCS 130/32 new)
 5        Sec. 32.  Compliance with Tobacco Products Manufacturers'
 6    Escrow Act.
 7        (a) Definitions. For the purposes of this Section:
 8        "Brand family" means all styles of cigarettes sold  under
 9    the  same  trademark  and  differentiated from one another by
10    means of additional modifiers or descriptors, including,  but
11    not  limited to, "menthol", "lights", "kings", and "100s" and
12    includes any brand name (alone or  in  conjunction  with  any
13    other word), trademark, logo, symbol, motto, selling message,
14    recognizable  pattern  of  colors,  or  any  other indicia of
15    product   identification   identical   or   similar   to   or
16    identifiable with a previously known brand of cigarettes.
17        "Non-participating  manufacturer"   means   any   tobacco
18    product    manufacturer   that   is   not   a   participating
19    manufacturer.
20        "Participating manufacturer" has the meaning  given  that
21    term in Section II(jj) of the Master Settlement Agreement and
22    all amendments thereto.
23        "Qualified escrow fund" has the same meaning as that term
24    is   defined   in   Section   10   of  the  Tobacco  Products
25    Manufacturers' Escrow Act.
26        "Tobacco product manufacturer" has the  same  meaning  as
27    that  term  is  defined in Section 10 of the Tobacco Products
28    Manufacturers' Escrow Act.
29        "Units Sold" has the same meaning as that term is defined
30    in Section 10 of the Tobacco Products  Manufacturers'  Escrow
31    Act.
32        (b) Certifications, directory; tax stamps.
33             (1)    Certification.    Every    tobacco    product
 
                            -64-     LRB093 06358 SJM 06477 b
 1        manufacturer  whose  cigarettes  are  sold in this State,
 2        whether directly or through a distributor,  retailer,  or
 3        similar intermediary or intermediaries, shall execute and
 4        deliver  on  a  form prescribed by the Attorney General a
 5        certification to the Department and Attorney  General  no
 6        later  than  the  30th  day of April each year certifying
 7        under penalty of perjury that, as  of  the  date  of  the
 8        certification,  the  tobacco product manufacturer either:
 9        is a participating manufacturer; or is in full compliance
10        with subdivision (a)(2) of  Section  15  of  the  Tobacco
11        Products   Manufacturers'   Escrow   Act,  including  all
12        quarterly   installment   payments   required   by   that
13        subdivision.
14                  (A) A participating manufacturer shall  include
15             in  its  certification a list of its brand families.
16             The participating manufacturer shall update the list
17             30 days prior to any addition to or modification  of
18             its  brand  families  by  executing and delivering a
19             supplemental certification to the Attorney General.
20                  (B)  A  non-participating  manufacturer   shall
21             include  in its certification a complete list of all
22             of its brand families (i) separately  listing  brand
23             families  of cigarettes and the number of units sold
24             for each brand family that were sold  in  the  State
25             during  the preceding calendar year, (ii) all of its
26             brand families that have been sold in the  State  at
27             any  time  during  the  current calendar year, (iii)
28             indicating by an asterisk any brand family  sold  in
29             the State during the preceding calendar year that is
30             no  longer being sold in the State as of the date of
31             certification, and  (iv)  identifying  by  name  and
32             address   any  other  manufacturer  of  those  brand
33             families  in  the  preceding  calendar   year.   The
34             non-participating manufacturer shall update the list
 
                            -65-     LRB093 06358 SJM 06477 b
 1             30 days prior to any addition or modification of its
 2             brand   families   by  executing  and  delivering  a
 3             supplemental certification to the Attorney General.
 4                  (C)  In  the  case   of   a   non-participating
 5             manufacturer,   the   certification   shall  further
 6             certify:
 7                       (i)  That      the       non-participating
 8                  manufacturer  is  registered  to do business in
 9                  the State or has appointed a resident agent for
10                  service of process and provided notice  thereof
11                  as required by subsection (c).
12                       (ii)  That      the      non-participating
13                  manufacturer  has  established and continues to
14                  maintain  a  qualified  escrow  fund  and   has
15                  executed  a qualified escrow agreement that has
16                  been reviewed  and  approved  by  the  Attorney
17                  General  and  that governs the qualified escrow
18                  fund.
19                       (iii)  That     the      non-participating
20                  manufacturer   is   in   full  compliance  with
21                  subdivision (a)(2) of Section 15 of the Tobacco
22                  Products Manufacturers'  Escrow  Act  and  with
23                  this  Section  and  any  rules adopted pursuant
24                  thereto;
25                       (iv)  (aa)   the   name,   address,    and
26                  telephone  number  of the financial institution
27                  where the  non-participating  manufacturer  has
28                  established the qualified escrow fund; (bb) the
29                  account number of the qualified escrow fund and
30                  sub-account  number  for  this  State; (cc) the
31                  amount   the   non-participating   manufacturer
32                  placed in the fund for cigarettes sold in  this
33                  State  during  the preceding calendar year, the
34                  date or dates and amount of each  deposit,  and
 
                            -66-     LRB093 06358 SJM 06477 b
 1                  such  evidence or verification as may be deemed
 2                  necessary by the Attorney  General  to  confirm
 3                  the  foregoing;  and  (dd)  the  amounts of and
 4                  dates of any withdrawal or  transfer  of  funds
 5                  the  non-participating manufacturer made at any
 6                  time from the fund or from any other  qualified
 7                  escrow  fund  into  which  it  ever made escrow
 8                  payments  pursuant  to  subdivision  (a)(2)  of
 9                  Section   15   of    the    Tobacco    Products
10                  Manufacturers' Escrow Act and all rules adopted
11                  thereto.
12                  (D)  A  tobacco  product  manufacturer  may not
13             include a brand family in its  certification  unless
14             (i) in the case of a participating manufacturer, the
15             participating  manufacturer  affirms  that the brand
16             family is to be deemed  to  be  its  cigarettes  for
17             purposes  of  calculating  its  payments  under  the
18             Master Settlement Agreement for the relevant year in
19             the  volume  and  shares  determined pursuant to the
20             Master Settlement Agreement and (ii) in the case  of
21             a      non-participating      manufacturer,      the
22             non-participating   manufacturer  affirms  that  the
23             brand family is to be deemed to  be  its  cigarettes
24             for  purposes  of Section 15 of the Tobacco Products
25             Manufacturers' Escrow Act. Nothing in  this  Section
26             shall   be   construed   as  limiting  or  otherwise
27             affecting the State's right to maintain that a brand
28             family constitutes cigarettes of a different tobacco
29             product manufacturer  for  purposes  of  calculating
30             payments  under  the  Master Settlement Agreement or
31             for purposes of Section 15 of the  Tobacco  Products
32             Manufacturers' Escrow Act.
33                  (E)  The  tobacco  product  manufacturers shall
34             maintain all invoices and documentation of sales and
 
                            -67-     LRB093 06358 SJM 06477 b
 1             other such information relied upon for certification
 2             for a period of 5 years, unless  otherwise  required
 3             by  law  to  maintain  them  for a greater period of
 4             time.
 5             (2)  Directory of cigarettes approved  for  stamping
 6        and  sale.  Not  later than January 1, 2005, the Attorney
 7        General shall  develop  and  make  available  for  public
 8        inspection   a  directory  listing  all  tobacco  product
 9        manufacturers that have  provided  current  and  accurate
10        certifications   conforming   to   the   requirements  of
11        subdivision (b)(1) and all brand families that are listed
12        in the certifications (the "Directory"), except as  noted
13        below.
14                  (A)  The  Attorney General shall not include or
15             retain in the Directory the name or  brand  families
16             of  any non-participating manufacturer that fails to
17             provide  the   required   certification   or   whose
18             certification the Attorney General determines is not
19             in   compliance   with  subdivisions  (b)(1)(B)  and
20             (b)(1)(C),   unless   the   Attorney   General   has
21             determined that the violation has been cured to  the
22             satisfaction of the Attorney General.
23                  (B)  Neither a tobacco product manufacturer nor
24             brand  family  shall  be included or retained in the
25             Directory if the Attorney General concludes that (i)
26             in the case of a non-participating manufacturer  all
27             escrow payments required under subdivision (a)(2) of
28             Section  15  of  the Tobacco Products Manufacturers'
29             Escrow Act for any  period  for  any  brand  family,
30             whether  or  not  listed  by  the  non-participating
31             manufacturer,  have  not  been  fully  paid  into  a
32             qualified escrow fund governed by a qualified escrow
33             agreement  that  has  been  approved by the Attorney
34             General, or (ii) all  outstanding  final  judgments,
 
                            -68-     LRB093 06358 SJM 06477 b
 1             including   interest   thereon,  for  violations  of
 2             Section 15 of the  Tobacco  Products  Manufacturers'
 3             Escrow  Act  have  not  been fully satisfied for the
 4             brand family and the manufacturer.
 5                  (C)  The  Attorney  General  shall  update  the
 6             Directory as necessary in order to correct  mistakes
 7             and  to add or remove a tobacco product manufacturer
 8             or  brand  families  to  keep   the   Directory   in
 9             conformity with the requirements of this Act.
10                  (D)  Every distributor shall provide and update
11             as  necessary  an  electronic  mail  address  to the
12             Attorney General for the purpose  of  receiving  any
13             notifications as may be required by this Act.
14             (3)  Notice   and   review   of   determination.   A
15        determination  of  the Attorney General to not list or to
16        remove from the  Directory  a  brand  family  or  tobacco
17        product  manufacturer  shall  be subject to review in the
18        manner prescribed by the Administrative  Review  Law  and
19        all  amendments  and  modifications thereof and the rules
20        adopted pursuant thereto.
21             (4)  A distributor shall not affix or  cause  to  be
22        affixed  any  stamp or imprint to a package of cigarettes
23        of a brand family or the tobacco product manufacturer, as
24        defined  in   Section   10   of   the   Tobacco   Product
25        Manufacturers'  Escrow  Act,  that is not included in the
26        Directory published by the Attorney General.
27             (5)  No  person  shall  be  issued  a  distributor's
28        license or granted a renewal of a  distributor's  license
29        unless  the person has certified in writing under penalty
30        of perjury that the person will fully  comply  with  this
31        Section.
32        (c)  Agent for service of process.
33             (1)  Any  non-resident  or foreign non-participating
34        manufacturer that has not registered to  do  business  in
 
                            -69-     LRB093 06358 SJM 06477 b
 1        the  State  as  a  foreign corporation or business entity
 2        shall, as a  condition  precedent  to  having  its  brand
 3        families listed or retained in the Directory, appoint and
 4        continually  engage  without interruption the services of
 5        an agent in this State to act as agent for the service of
 6        process on whom all process, and any action or proceeding
 7        against it concerning or arising out of  the  enforcement
 8        of  the Act and the Tobacco Product Manufacturers' Escrow
 9        Act may be served in any manner authorized  by  law.  The
10        service  shall  constitute  legal  and  valid  service of
11        process  on  the  non-participating   manufacturer.   The
12        non-participating  manufacturer  shall  provide the name,
13        address, phone number, and proof of the  appointment  and
14        availability  of  the agent to and to the satisfaction of
15        the Department and Attorney General.
16             (2) The non-participating manufacturer shall provide
17        notice to the Department and Attorney General 30 calendar
18        days prior to termination of the authority  of  an  agent
19        and  shall  further  provide proof to the satisfaction of
20        the Attorney General of the appointment of a new agent no
21        less than 5 calendar days prior to the termination of  an
22        existing   agent  appointment.  In  the  event  an  agent
23        terminates an agency appointment,  the  non-participating
24        manufacturer  shall  notify  the  Department and Attorney
25        General of the termination within  5  calendar  days  and
26        shall  include  proof to the satisfaction of the Attorney
27        General of the appointment of a new agent.
28             (3)   Any   non-participating   manufacturer   whose
29        products are sold in this State without the  manufacturer
30        appointing  or  designating  an agent as required in this
31        subsection (c) shall be  deemed  to  have  appointed  the
32        Secretary  of  State  as  its  agent and may be proceeded
33        against in courts of this State  by  service  of  process
34        upon  the Secretary of State; however, the appointment of
 
                            -70-     LRB093 06358 SJM 06477 b
 1        the Secretary of State as an agent shall not satisfy  the
 2        condition  precedent  to having its brand families listed
 3        or retained in the Directory.
 4        (d) Reporting of information; escrow installments.
 5             (1) Not later than 20 days after  the  end  of  each
 6        calendar  quarter,  and more frequently if so directed by
 7        the  Department,  each  distributor  shall  submit   such
 8        information  as  the  Department  requires  to facilitate
 9        compliance with this Section, including, but not  limited
10        to,  a  list  by  brand  family  of  the  total number of
11        cigarettes  or,  in  the  case  of   roll-your-own,   the
12        equivalent  stick count for which the distributor affixed
13        stamps during the previous calendar quarter or  otherwise
14        paid  the  tax  due  for  the cigarettes. The distributor
15        shall maintain and make available to the  Department  all
16        invoices    and    documentation    of   sales   of   all
17        non-participating manufacturer cigarettes and  any  other
18        information  relied  upon  in reporting to the Department
19        for a period of 5 years.
20             (2) The Department is authorized to disclose to  the
21        Attorney  General any information received under this Act
22        and requested by the Attorney  General  for  purposes  of
23        determining  compliance with and enforcing the provisions
24        of this Act. The Department and  Attorney  General  shall
25        share with each other the information received under this
26        Act  and  may  share this information with other federal,
27        state, or local agencies only for purposes of enforcement
28        of this Act, the Tobacco  Product  Manufacturers'  Escrow
29        Act, or corresponding laws of other states.
30             (3)  In  addition  to the information required to be
31        submitted pursuant to subdivision  (d)(1),  the  Attorney
32        General  may  require  a  distributor  or tobacco product
33        manufacturer  to  submit   any   additional   information
34        including,  but  not limited to, samples of the packaging
 
                            -71-     LRB093 06358 SJM 06477 b
 1        or labeling of each brand  family,  as  is  necessary  to
 2        enable  the  Attorney  General  to  determine  whether  a
 3        tobacco  product  manufacturer  is in compliance with the
 4        Tobacco Manufacturers' Escrow Act.
 5             (4) To promote compliance  with  the  provisions  of
 6        this  Act, the Attorney General may adopt rules requiring
 7        a   tobacco   product   manufacturer   subject   to   the
 8        requirements  of  the  Tobacco  Products   Manufacturers'
 9        Escrow  Act  to  make  the  escrow  deposits  required in
10        quarterly installments during the year in which the sales
11        covered by the deposits are made.  The  Attorney  General
12        may  require  production  of  information  sufficient  to
13        enable  the Attorney General to determine the adequacy of
14        the amount of the installment deposit.
15        (e) Penalties and other remedies.
16             (1) In addition to or instead of any other civil  or
17        criminal  remedy  provided  by  law, upon a determination
18        that a distributor has violated subdivision (b)(4) or any
19        rule adopted pursuant thereto, the Department may  revoke
20        or  suspend  the license of any distributor in the manner
21        provided by Section 6. Each stamp affixed and each  offer
22        to  sell  cigarettes  in  violation of subdivision (b)(4)
23        shall  constitute  a   separate   violation.   For   each
24        violation, the Department may also impose a civil penalty
25        in  an  amount  not  to exceed the greater of 500% of the
26        retail value of the cigarettes  sold  or  $5,000  upon  a
27        determination  of  violation of subdivision (b)(4) or any
28        rules adopted pursuant thereto.
29             (2) Contraband and seizure. Any cigarettes that have
30        been sold, offered for sale, possessed for sale  in  this
31        State,  or imported for personal consumption in violation
32        of subdivision (b)(4) shall be  deemed  contraband  under
33        this  Act  and  are  subject to seizure and forfeiture as
34        provided in this Act, and all such cigarettes seized  and
 
                            -72-     LRB093 06358 SJM 06477 b
 1        forfeited  shall  be  destroyed.  The cigarettes shall be
 2        deemed contraband whether the violation of  this  Section
 3        is knowing or otherwise.
 4             (3)  Injunction.  The Attorney General, on behalf of
 5        the Department, may seek  an  injunction  to  restrain  a
 6        threatened  or  actual  violation of subdivisions (b)(4),
 7        (d)(1), or (d)(3) by a  distributor  and  to  compel  the
 8        distributor  to  comply  with  those subdivisions. In any
 9        action brought pursuant to this subdivision  (e)(3),  the
10        State   shall   be  entitled  to  recover  the  costs  of
11        investigation,  costs  of  the  action,  and   reasonable
12        attorney fees.
13             (4)  Unlawful  sale  and  distribution.  It shall be
14        unlawful  for  a  person  to  (i)  sell   or   distribute
15        cigarettes   or   (ii)   acquire,   hold,  own,  possess,
16        transport, import, or cause to  be  imported,  cigarettes
17        that  the  person  knows  or should know are intended for
18        distribution  or  sale  in  the  State  in  violation  of
19        subsection (b). A violation of  this  subdivision  (e)(4)
20        shall be a Class C misdemeanor.
21             (5)  Unfair  trade  practices. A person who violates
22        subdivision (b)(4) engages in  an  unlawful  practice  as
23        provided  in  the  Consumer  Fraud and Deceptive Business
24        Practices Act.
25        (f)  Miscellaneous provisions.
26             (1) Dates. For the year 2003, if the effective  date
27        of  this  amendatory  Act of the 93rd General Assembly is
28        later than March 16, 2003, the first report  of  stamping
29        agents  required  by  subdivision  (d)(1) shall be due 30
30        days after the effective date of this amendatory  Act  of
31        the  93rd  General  Assembly;  the  certifications  by  a
32        tobacco  product  manufacturer  described  in subdivision
33        (b)(1) shall be due 45 days after the effective  date  of
34        this amendatory Act of the 93rd General Assembly; and the
 
                            -73-     LRB093 06358 SJM 06477 b
 1        Directory   described  in  subdivision  (b)(2)  shall  be
 2        published or made available not  later  than  January  1,
 3        2005.
 4             (2)  Adoption  of  rules.  The  Attorney General may
 5        adopt rules necessary to effect the purposes of this Act.
 6             (3) Recovery of costs and fees by Attorney  General.
 7        In  any  action brought by the State to enforce this Act,
 8        the State shall be  entitled  to  recover  the  costs  of
 9        investigation,  expert witness fees, costs of the action,
10        and reasonable attorney fees.
11             (4) Disgorgement of profits for violations  of  Act.
12        If  a  court  determines  that a person has violated this
13        Act, the court  shall  order  any  profits,  gain,  gross
14        receipts,  or  other  benefits  from  the violation to be
15        disgorged and paid to the  State  Treasurer  for  deposit
16        into   the   Tobacco  Settlement  Recovery  Fund.  Unless
17        otherwise expressly provided, the remedies  or  penalties
18        provided  by this Act are cumulative to each other and to
19        the remedies or penalties available under all other  laws
20        of this State.
21             (5)  Construction  and  severability.  If a court of
22        competent jurisdiction finds that the provisions of  this
23        Act and of the Tobacco Products Manufacturers' Escrow Act
24        conflict and cannot be harmonized, then the provisions of
25        the  Tobacco  Products  Manufacturers'  Escrow  Act shall
26        control.  If  any   Section,   subsection,   subdivision,
27        paragraph, sentence, clause, or phrase of this Act causes
28        the  Tobacco  Products  Manufacturers'  Escrow  Act to no
29        longer constitute a qualifying or model statute, as those
30        terms are defined in  the  Master  Settlement  Agreement,
31        then  that portion of this Act shall not be valid. If any
32        Section, subsection,  subdivision,  paragraph,  sentence,
33        clause,  or  phrase of this Act is for any reason held to
34        be invalid, unlawful, or unconstitutional, that  decision
 
                            -74-     LRB093 06358 SJM 06477 b
 1        shall  not  affect the validity of the remaining portions
 2        of this Act or any part thereof. If any provision of this
 3        Section or the  application  of  any  provision  of  this
 4        Section  to  any  person  or  circumstance  is held to be
 5        invalid,  the  remainder  of   this   Section   and   the
 6        application  of  the  provisions  of  this Section to any
 7        other  person  or  circumstance  shall  not  be  affected
 8        thereby and shall continue to be enforced to the  fullest
 9        extent possible.

10        (35 ILCS 130/9b rep.)
11        (35 ILCS 130/28 rep.)
12        (35 ILCS 130/30 rep.)
13        Section 10. The Cigarette Tax Act is amended by repealing
14    Sections 9b, 28, and 30.

15        (35 ILCS 135/Act rep.)
16        Section 15. The Cigarette Use Tax Act is repealed.

17        Section  99.  Effective  date.   This Act takes effect 90
18    days after becoming law.
 
                            -75-     LRB093 06358 SJM 06477 b
 1                                INDEX
 2               Statutes amended in order of appearance
 3    35 ILCS 130/0.01 new
 4    35 ILCS 130/1             from Ch. 120, par. 453.1
 5    35 ILCS 130/2             from Ch. 120, par. 453.2
 6    35 ILCS 130/3             from Ch. 120, par. 453.3
 7    35 ILCS 130/4             from Ch. 120, par. 453.4
 8    35 ILCS 130/4a            from Ch. 120, par. 453.4a
 9    35 ILCS 130/4b            from Ch. 120, par. 453.4b
10    35 ILCS 130/5             from Ch. 120, par. 453.5
11    35 ILCS 130/6             from Ch. 120, par. 453.6
12    35 ILCS 130/7             from Ch. 120, par. 453.7
13    35 ILCS 130/9             from Ch. 120, par. 453.9
14    35 ILCS 130/9a            from Ch. 120, par. 453.9a
15    35 ILCS 130/9c            from Ch. 120, par. 453.9c
16    35 ILCS 130/9d            from Ch. 120, par. 453.9d
17    35 ILCS 130/10b           from Ch. 120, par. 453.10b
18    35 ILCS 130/11            from Ch. 120, par. 453.11
19    35 ILCS 130/13            from Ch. 120, par. 453.13
20    35 ILCS 130/13a new
21    35 ILCS 130/14            from Ch. 120, par. 453.14
22    35 ILCS 130/15            from Ch. 120, par. 453.15
23    35 ILCS 130/15a new
24    35 ILCS 130/15b new
25    35 ILCS 130/18            from Ch. 120, par. 453.18
26    35 ILCS 130/18a           from Ch. 120, par. 453.18a
27    35 ILCS 130/18b           from Ch. 120, par. 453.18b
28    35 ILCS 130/18c
29    35 ILCS 130/18d new
30    35 ILCS 130/20            from Ch. 120, par. 453.20
31    35 ILCS 130/21            from Ch. 120, par. 453.21
32    35 ILCS 130/22            from Ch. 120, par. 453.22
33    35 ILCS 130/23            from Ch. 120, par. 453.23
34    35 ILCS 130/24            from Ch. 120, par. 453.24
 
                            -76-     LRB093 06358 SJM 06477 b
 1    35 ILCS 130/25            from Ch. 120, par. 453.25
 2    35 ILCS 130/31 new
 3    35 ILCS 130/32 new
 4    35 ILCS 130/9b rep.
 5    35 ILCS 130/28 rep.
 6    35 ILCS 130/30 rep.
 7    35 ILCS 135/Act rep.