093_SB1725enr

 
SB1725 Enrolled                      LRB093 02872 SJM 02888 b

 1        AN ACT concerning taxation.

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

 4        Section  5.   The Illinois Estate and Generation-Skipping
 5    Transfer Tax Act is amended by changing Sections 2, 3, 5,  6,
 6    7, 8, and 10 as follows:

 7        (35 ILCS 405/2) (from Ch. 120, par. 405A-2)
 8        Sec. 2.  Definitions.
 9        "Federal  estate  tax"  means  the  tax due to the United
10    States with respect to a taxable transfer under Chapter 11 of
11    the Internal Revenue Code.
12        "Federal generation-skipping transfer tax" means the  tax
13    due  to  the United States with respect to a taxable transfer
14    under Chapter 13 of the Internal Revenue Code.
15        "Federal return" means the federal estate tax return with
16    respect to the federal  estate  tax  and  means  the  federal
17    generation-skipping  transfer  tax return with respect to the
18    federal generation-skipping transfer tax.
19        "Federal transfer tax" means the federal  estate  tax  or
20    the federal generation-skipping transfer tax.
21        "Illinois  estate  tax"  means  the tax due to this State
22    with respect to a taxable  transfer  that  gives  rise  to  a
23    federal estate tax.
24        "Illinois generation-skipping transfer tax" means the tax
25    due  to  this  State  with respect to a taxable transfer that
26    gives rise to a federal generation-skipping transfer tax.
27        "Illinois transfer tax" means the Illinois estate tax  or
28    the Illinois generation-skipping transfer tax.
29        "Internal Revenue Code" means, unless otherwise provided,
30    the  Internal  Revenue  Code of 1986, as amended from time to
31    time.
 
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 1        "Non-resident trust" means a trust that is not a resident
 2    of this State for purposes of the Illinois Income Tax Act, as
 3    amended from time to time.
 4        "Person"  means  and  includes  any  individual,   trust,
 5    estate, partnership, association, company or corporation.
 6        "Qualified  heir"  means  a  qualified heir as defined in
 7    Section 2032A(e)(1) of the Internal Revenue Code.
 8        "Resident trust" means a trust that is a resident of this
 9    State for purposes of the Illinois Income Tax Act, as amended
10    from time to time.
11        "State" means any state, territory or possession  of  the
12    United States and the District of Columbia.
13        "State tax credit" means:
14        (a)  For  persons  dying  on or after January 1, 2003 and
15    through December 31, 2005, an amount equal to the full credit
16    calculable under Section 2011 or Section 2604 of the Internal
17    Revenue Code as the  credit  would  have  been  computed  and
18    allowed  under  the  Internal  Revenue  Code  as in effect on
19    December 31, 2001, without the reduction in the  State  Death
20    Tax   Credit   as  provided  in  Section  2011(b)(2)  or  the
21    termination of the State Death  Tax  Credit  as  provided  in
22    Section  2011(f)  as  enacted  by the Economic Growth and Tax
23    Relief  Reconciliation  Act  of  2001,  but  recognizing  the
24    increased applicable exclusion amount  through  December  31,
25    2005.
26        (b)  For  persons dying after December 31, 2005 and on or
27    before December 31, 2009, an amount equal to the full  credit
28    calculable under Section 2011 or 2604 of the Internal Revenue
29    Code as the credit would have been computed and allowed under
30    the  Internal Revenue Code as in effect on December 31, 2001,
31    without the reduction  in  the  State  Death  Tax  Credit  as
32    provided  in  Section  2011(b)(2)  or  the termination of the
33    State Death Tax Credit as  provided  in  Section  2011(f)  as
34    enacted  by the Economic Growth and Tax Relief Reconciliation
 
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 1    Act of 2001, but recognizing the  exclusion  amount  of  only
 2    $2,000,000.
 3        (c)  For  persons  dying  after  December  31,  2009, the
 4    credit for state tax allowable under Section 2011 or  Section
 5    2604 of the Internal Revenue Code.
 6        "Taxable  transfer"  means  an event that gives rise to a
 7    state tax credit, including any credit allowable as a  result
 8    of the imposition of an additional tax under Section 2032A(c)
 9    of the Internal Revenue Code.
10        "Transferee"  means  a  transferee  within the meaning of
11    Section  2603(a)(1)  and  Section  6901(h)  of  the  Internal
12    Revenue Code.
13        "Transferred property" means:
14             (1)  With respect to a taxable transfer occurring at
15        the death of an individual that results in the imposition
16        of federal estate tax, the  deceased  individual's  gross
17        estate as defined in Section 2031 of the Internal Revenue
18        Code.
19             (2)  With respect to a taxable transfer occurring as
20        a  result  of a taxable termination as defined in Section
21        2612(a) of the Internal Revenue Code,  the taxable amount
22        determined under Section 2622(a) of the Internal  Revenue
23        Code.
24             (3)  With respect to a taxable transfer occurring as
25        a  result of a taxable distribution as defined in Section
26        2612(b) of the Internal Revenue Code, the taxable  amount
27        determined  under Section 2621(a) of the Internal Revenue
28        Code.
29             (4)  With respect  to  an  event  which  causes  the
30        imposition  of  an  additional  estate  tax under Section
31        2032A(c) of the Internal Revenue Code, the qualified real
32        property that was disposed of or which ceased to be  used
33        for  the  qualified  use,  within  the meaning of Section
34        2032A(c)(1) of the Internal Revenue Code.
 
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 1        "Trust" includes a trust as defined in Section 2652(b)(1)
 2    of the Internal Revenue Code.
 3    (Source: P.A. 86-737.)

 4        (35 ILCS 405/3) (from Ch. 120, par. 405A-3)
 5        Sec. 3.  Illinois estate tax.
 6        (a)  Imposition  of  Tax.   An  Illinois  estate  tax  is
 7    imposed  on  every  taxable  transfer  involving  transferred
 8    property having a tax situs within the State of Illinois.
 9        (b)  Amount of tax.  The amount of  the  Illinois  estate
10    tax  shall  be  the  maximum  state tax credit, as defined in
11    Section 2 of this Act, allowable with respect to the  taxable
12    transfer reduced by the lesser of:
13             (1)  the  amount of the state tax credit paid to any
14        other state or states; and
15             (2)  the  amount  determined  by   multiplying   the
16        maximum  state  tax  credit allowable with respect to the
17        taxable transfer  by the percentage which the gross value
18        of the transferred property not having  a  tax  situs  in
19        Illinois   bears   to   the  gross  value  of  the  total
20        transferred property.
21    (Source: P.A. 86-737.)

22        (35 ILCS 405/5) (from Ch. 120, par. 405A-5)
23        Sec. 5.  Determination of tax situs and valuation.
24        (a)  Illinois estate tax.
25             (1)  For purposes of the Illinois estate tax, in the
26        case of a decedent who was a resident of  this  State  at
27        the  time of death, all of the transferred property has a
28        tax situs in this State, including any such property held
29        in trust,  except  real  or  tangible  personal  property
30        physically situated in another state.
31             (2)  For purposes of the Illinois estate tax, in the
32        case  of  a decedent who was not a resident of this State
 
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 1        at the time of death, the transferred property  having  a
 2        tax situs in this State, including any such property held
 3        in  trust,  is only the real estate and tangible personal
 4        property physically situated in this State.
 5        (b)  Illinois generation-skipping transfer tax.
 6             (1)  For     purposes      of      the      Illinois
 7        generation-skipping   transfer   tax,   all   transferred
 8        property  from  or in a resident trust has a tax situs in
 9        this State, including any such property  held  in  trust,
10        except  real  or  tangible  personal  property physically
11        situated in another state on the date  that  the  taxable
12        transfer occurs.
13             (2)  For      purposes      of      the     Illinois
14        generation-skipping transfer tax, none of the transferred
15        property from or in a non-resident trust has a tax  situs
16        in  this  State,  except  that portion of the transferred
17        property that  is  real  or  tangible  personal  property
18        physically  situated  in  this  State, including any such
19        property held in trust, on  the  date  that  the  taxable
20        transfer occurs.
21        (c)  Valuation.   Except as otherwise expressly provided,
22    for purposes of this Act,  the  gross  value  of  transferred
23    property  shall  be  its  value  as  finally  determined  for
24    purposes of the related federal transfer tax, undiminished by
25    any   mortgages,   liens  or  other  encumbrances  upon  such
26    transferred property for which the  decedent  was  personally
27    liable.
28    (Source: P.A. 86-737.)

29        (35 ILCS 405/6) (from Ch. 120, par. 405A-6)
30        Sec. 6.  Returns and payments.
31        (a)  Due  Dates.  The Illinois transfer tax shall be paid
32    and the Illinois transfer tax return shall be  filed  on  the
33    due  date  or  dates, respectively, including extensions, for
 
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 1    paying the  related  federal  transfer  tax  and  filing  the
 2    related federal return.
 3        (b)  Installment  payments  and  deferral.   In the event
 4    that any portion of the federal transfer tax is  deferred  or
 5    to  be  paid  in  installments  under  the  provisions of the
 6    Internal Revenue Code, the portion of the  Illinois  transfer
 7    tax  which  is subject to deferral or payable in installments
 8    shall be determined by multiplying the Illinois transfer  tax
 9    by  a  fraction, the numerator of which is the gross value of
10    the assets included in the transferred property having a  tax
11    situs  in  this  State and which give rise to the deferred or
12    installment payment under  the Internal Revenue Code, and the
13    denominator of  which  is  the  gross  value  of  all  assets
14    included  in  the  transferred property having a tax situs in
15    this State.  Deferred payments and installment payments, with
16    interest, shall be paid at the same  time  and  in  the  same
17    manner  as  payments of the federal transfer tax are required
18    to be made under the  applicable  Sections  of  the  Internal
19    Revenue  Code,  provided  that the rate of interest on unpaid
20    amounts of Illinois transfer tax shall  be  determined  under
21    this  Act.   Acceleration of payment under this Section shall
22    occur under the same circumstances and in the same manner  as
23    provided in the Internal Revenue Code.
24        (c)  Who  shall  file and pay.  The Illinois transfer tax
25    return (including any supplemental or amended  return)  shall
26    be  filed,  and  the  Illinois  transfer  tax  (including any
27    additional tax that may become due) shall be paid by the same
28    person or persons, respectively, who are required to pay  the
29    related  federal  transfer  tax  and file the related federal
30    return, or who would have been  required  to  pay  a  federal
31    transfer  tax and file a federal return if a federal transfer
32    tax were due.
33        (d)  Where  to  file  return.   The   executed   Illinois
34    transfer tax return shall be filed with the Attorney General.
 
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 1    In addition, a copy of the Illinois transfer tax return shall
 2    be  filed  with  the  county  treasurer  to whom the Illinois
 3    transfer tax is paid, determined under subsection (e) of this
 4    Section.
 5        (e)  Where to pay tax.  The Illinois transfer  tax  shall
 6    be  paid  to the treasurer of the county determined under the
 7    following rules:
 8             (1)  Illinois Estate Tax.  The Illinois  estate  tax
 9        shall be paid to the treasurer of the county in which the
10        decedent  was  a  resident  on the date of the decedent's
11        death or, if the decedent was  not  a  resident  of  this
12        State  on  the  date  of  death,  the county in which the
13        greater part, by gross value, of the transferred property
14        with a tax situs in this State is located.
15             (2)  Illinois Generation-Skipping Transfer Tax.  The
16        Illinois  generation-skipping  transfer   tax   involving
17        transferred property from or in a resident trust shall be
18        paid  to the county treasurer for the county in which the
19        grantor resided at the time the trust became  irrevocable
20        (in  the  case  of an inter vivos trust) or the county in
21        which the decedent resided at death (in  the  case  of  a
22        trust  created by the will of a decedent). In the case of
23        an Illinois generation-skipping  transfer  tax  involving
24        transferred property from or in a non-resident trust, the
25        Illinois  generation-skipping  transfer tax shall be paid
26        to the county treasurer  for  the  county  in  which  the
27        greater part, by gross value, of the transferred property
28        with a tax situs in this State is located.
29        (f)  Forms;  confidentiality.   The Illinois transfer tax
30    return shall be in  all  respects  in  the  manner  and  form
31    prescribed  by  the  regulations of the Attorney General.  At
32    the same time the Illinois transfer tax return is filed,  the
33    person  required  to  file  shall also file with the Attorney
34    General a copy of the related federal return. For individuals
 
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 1    dying after December 31, 2005,  in  cases  where  no  federal
 2    return  is  required to be filed, the person required to file
 3    an Illinois return shall also file with the Attorney  General
 4    schedules  of assets in the manner and form prescribed by the
 5    Attorney General. The Illinois transfer tax  return  and  the
 6    copy of the federal return filed with the Attorney General or
 7    any  county treasurer shall be confidential, and the Attorney
 8    General, each county treasurer and all of their assistants or
 9    employees are prohibited from divulging in any manner any  of
10    the  contents  of  those returns, except only in a proceeding
11    instituted under the provisions of this Act.
12        (g)  County Treasurer shall accept  payment.   No  county
13    treasurer  shall  refuse  to accept payment of any amount due
14    under this Act on the grounds that the county  treasurer  has
15    not  yet received a copy of the appropriate Illinois transfer
16    tax return.
17    (Source: P.A. 86-737.)

18        (35 ILCS 405/7) (from Ch. 120, par. 405A-7)
19        Sec. 7.  Supplemental returns; refunds.
20        (a)  Supplemental returns.  If the State  tax  credit  is
21    increased  after  the  filing  of  the  Illinois transfer tax
22    return, the person or persons required to file  the  Illinois
23    transfer  tax  return and pay the Illinois transfer tax shall
24    file  a  supplemental  Illinois  transfer  tax  return.   The
25    supplemental return shall be filed  and  the  additional  tax
26    shall  be  paid  in  the same place and manner as provided in
27    Section 6 of this Act.  The due  date  for  the  supplemental
28    return  and for the payment of the additional tax reported in
29    the supplemental return shall be no later than 3 months after
30    the earliest of:
31             (1)  the date an amended, related federal return  is
32        filed;
33             (2)  the  date  an  increase in the federal transfer
 
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 1        tax is paid or accepted in writing; or
 2             (3)  the date the Internal Revenue Service issues  a
 3        request  for evidence of payment of the State tax credit;
 4        or
 5             (4)  the date  that  any  increase  to  the  taxable
 6        estate is discovered;
 7    provided  that  if  the  related  federal transfer tax may be
 8    deferred or paid in installments, then part  or  all  of  the
 9    additional  Illinois  transfer tax may be deferred or paid in
10    installments under rules consistent with  subsection  (b)  of
11    Section 6 of this Act.
12        (b)  Refunds.   If  the state tax credit is reduced after
13    the filing of the Illinois transfer tax  return,  the  person
14    who  paid  the Illinois transfer tax (or the person upon whom
15    the burden of payment fell) shall file  an  amended  Illinois
16    transfer  tax return and shall be entitled to a refund of tax
17    or interest paid on the Illinois transfer tax.   No  interest
18    shall be paid on any amount refunded.
19    (Source: P.A. 86-737.)

20        (35 ILCS 405/8) (from Ch. 120, par. 405A-8)
21        Sec.  8.   Penalties for failure to file tax return or to
22    pay tax.
23        (a)  Failure to file return.  In case of failure to  file
24    any  return required under this Act with the Attorney General
25    by the due date, unless it is shown that the failure to  file
26    is  due  to  a  reasonable cause, there shall be added to the
27    amount required to be shown as tax on the return  5%  of  the
28    amount  of  that  tax (or 5% of the additional tax due in the
29    case of a supplemental return) if the failure is for not more
30    than one month from the due date, with an additional  5%  for
31    each  additional  month  or  fraction  of  a month thereafter
32    during which the failure to file continues, not exceeding  in
33    the   aggregate  25%  of  the  tax  or,  in  the  case  of  a
 
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 1    supplemental return, 25% of the additional tax.
 2        (b)  Failure to pay tax.  In the case of failure  to  pay
 3    the amount of tax shown due on any return required under this
 4    Act on or before the due date for payment of that tax, unless
 5    it  is  shown  that  the  failure to pay is due to reasonable
 6    cause, there shall be added to the unpaid amount of  the  tax
 7    0.5%  of  that  unpaid  amount if the failure is for not more
 8    than one month from the due date, with an additional 0.5% for
 9    each additional month  or  fraction  of  a  month  thereafter
10    during  which  the failure to pay continues, not exceeding in
11    the aggregate 25% of the unpaid amount.
12        (c)  Extensions of Time.
13             (1)  Internal Revenue Service  Extensions.   If  the
14        date  for  filing  the related federal return or the date
15        for payment  of  the  related  federal  transfer  tax  is
16        extended  by  the Internal Revenue Service, the filing of
17        the return and payment of the tax  imposed  by  this  Act
18        shall  be  due  on  the  respective date specified by the
19        Internal  Revenue  Service  in  granting  a  request  for
20        extension.  If the request for extension  is  granted  by
21        the Internal Revenue Service, the person required to file
22        the  Illinois  transfer  tax  return  shall  furnish  the
23        Attorney General with a copy of the request for extension
24        showing approval of the extension by the Internal Revenue
25        Service.   If a request for extension of time to file the
26        federal return is denied by the Internal Revenue Service,
27        no penalty shall be due under  this  Act  if  the  return
28        required  by  this Act is filed within the time specified
29        by the Internal Revenue Service for  filing  the  federal
30        return.   If  a  request for extension of time to pay the
31        federal transfer tax is denied by  the  Internal  Revenue
32        Service,  no  penalty  shall be due under this Act if the
33        tax is paid within the time  specified  by  the  Internal
34        Revenue Service for paying the federal transfer tax.
 
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 1             (2)  Attorney  General  Extensions.   The  person or
 2        persons required to file the Illinois transfer tax return
 3        and to pay the Illinois transfer tax  may  apply  to  the
 4        Attorney  General  for  an  extension of time to file the
 5        Illinois transfer tax  return  or  to  pay  the  Illinois
 6        transfer  tax.  The application must establish reasonable
 7        cause why it is  impossible  or  impractical  to  file  a
 8        reasonably  complete  return or to pay the full amount of
 9        tax due by the due date.  The Attorney  General  may  for
10        reasonable cause extend the time for filing the return or
11        paying  the  tax  for  a  reasonable period from the date
12        fixed for filing the return or paying the tax.
13        (d)  Waiver of Penalties.
14             (1)  Internal  Revenue  Service  Waiver.    If   the
15        Internal  Revenue  Service waives the penalty provided in
16        the Internal Revenue Code for failure to timely file  the
17        related  federal  return  or  the  penalty for failure to
18        timely pay the related federal  transfer  tax  liability,
19        such  waiver  or  waivers  shall  be deemed to constitute
20        reasonable cause for purposes of this Section.
21             (2)  Attorney General Waiver.  The Attorney  General
22        may waive the penalty or penalties for failure to file or
23        pay  for reasonable cause, notwithstanding the failure of
24        the Internal Revenue Service  to  waive  the  penalty  or
25        penalties for failure to timely file the federal transfer
26        tax return or to pay the federal transfer tax.
27    (Source: P.A. 86-737.)

28        (35 ILCS 405/10) (from Ch. 120, par. 405A-10)
29        Sec. 10.  Liens and Personal Liability.
30        (a)  Lien for Illinois transfer tax.  Unless the Illinois
31    transfer  tax  is  sooner paid in full, the Illinois transfer
32    tax shall  be  a  lien  in  favor  of  this  State  upon  the
33    transferred property having a tax situs within this State for
 
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 1    10  years  from  the date of the taxable transfer, or, in the
 2    case of Illinois transfer tax subject to deferral or  payable
 3    in  installments,  the later of 10 years from the date of the
 4    taxable transfer or one  year  after  the  last  deferred  or
 5    installment payment may become due.  The lien imposed by this
 6    Section  on  the  transferred  property shall not be valid as
 7    against any purchaser, mortgagee, pledgee, or other holder of
 8    a security interest for a full and adequate consideration  in
 9    money or money's worth; provided, however, that any property,
10    consideration  or  proceeds received as a result of any sale,
11    mortgage, pledge or granting of  a  security  interest  shall
12    remain  subject  to  the  lien  imposed  by this Section.  In
13    addition, the lien imposed by this Section on the transferred
14    property shall be subject to  the  exceptions  set  forth  in
15    Section  6324(c)(i)  of  the  Internal Revenue Code as if the
16    lien were a lien imposed by that Section.  In no event  shall
17    the issuance by the Attorney General of a release of the lien
18    imposed  by  this  subsection be required with respect to the
19    sale, mortgage, pledge, granting of a security  interest  in,
20    transfer or distribution of transferred property.
21        (b)  Special lien for property valued under Section 2032A
22    of  the  Internal  Revenue  Code.   In the event the Illinois
23    estate tax is reduced  as  a  result  of  an  election  under
24    Section  2032A  of  the Internal Revenue Code, then an amount
25    equal to the additional Illinois estate tax that would be due
26    in the absence of such an election shall be a lien  in  favor
27    of  this  State  on  the  transferred property that has a tax
28    situs in this State and is subject  to  such  election.   The
29    lien  imposed  by  this subsection shall arise at the time an
30    election is filed under Section 2032A of the Internal Revenue
31    Code and shall continue  with  respect  to  such  transferred
32    property:
33             (1)  until the liability for the Illinois estate tax
34        with  respect  to  such  transferred  property  has  been
 
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 1        satisfied  or has become unenforceable by reason of lapse
 2        of time or otherwise; or
 3             (2)  until it is established to the satisfaction  of
 4        the  Attorney  General  that no further tax liability may
 5        arise under this Act with  respect  to  such  transferred
 6        property.
 7        The lien imposed by this subsection shall not be valid as
 8    against  any purchaser, mortgagee, pledgee, other holder of a
 9    security interest, mechanic's lien, or judgment lien creditor
10    until notice of such lien has been filed as provided  by  the
11    laws  of this State.  In regulations prescribed in accordance
12    with Section 16 of this Act, the Attorney General may require
13    that the qualified heir  file  such  notice  of  lien.   Even
14    though  notice of said lien has been filed as provided in the
15    preceding sentence, such lien shall be subject to  the  rules
16    set  forth  in  paragraph  (3)  of  Section  6324A(d)  of the
17    Internal Revenue Code as if the lien were a lien  imposed  by
18    that Section.
19        (c)  Personal liability.  If the Illinois transfer tax is
20    not  paid  when  due,  then  the  person required to file the
21    related federal return and the transferee of any  transferred
22    property  having  a  tax  situs  within  this  State shall be
23    personally liable for  the  Illinois  transfer  tax,  to  the
24    extent  of  such  transferred  property  originally received,
25    controlled or transferred to that person or transferee,  less
26    the amount of any expenses or charges against the transferred
27    property,  related  to  the  taxable  transfer,  which have a
28    higher priority of payment  under  applicable  law  than  the
29    Illinois transfer tax.
30        (d)  Collection.   The  Attorney  General  shall have the
31    right to sue for collection of the Illinois transfer tax  for
32    3  years  after  the date of the actual filing of the related
33    Illinois transfer tax return with the Attorney  General,  or,
34    if  later, the last date upon which application for refund of
 
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 1    the Illinois transfer tax  could  be  filed  with  the  State
 2    Treasurer.
 3        (e)  Waiver  of  lien  and  personal  liability.   If the
 4    Attorney General is satisfied that no liability for  Illinois
 5    transfer  tax  exists  or  that the Illinois transfer tax has
 6    been fully discharged or provided for, the  Attorney  General
 7    shall  issue  a  certificate releasing all of the transferred
 8    property having a tax situs within the State of Illinois from
 9    the  lien  imposed  by  this  Section.   Issuance   of   such
10    certificate  shall  discharge the person required to file the
11    Illinois related  federal  return  and  any  transferee  from
12    personal liability for the Illinois transfer tax.
13    (Source: P.A. 86-737.)

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