Full Text of SB0317 96th General Assembly
SB0317sam003 96TH GENERAL ASSEMBLY
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Sen. Ira I. Silverstein
Filed: 2/25/2009
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| AMENDMENT TO SENATE BILL 317
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| AMENDMENT NO. ______. Amend Senate Bill 317 by replacing | 3 |
| everything after the enacting clause with the following: | 4 |
| "Section 1. Short title. This Act may be cited as the | 5 |
| Cigarette Delivery Sales Reporting Act. | 6 |
| Section 5. Legislative findings and intent. The General | 7 |
| Assembly finds that consumers are using the Internet to | 8 |
| purchase cigarettes to avoid the taxes imposed by the State of | 9 |
| Illinois on sale and use of cigarettes. The General Assembly | 10 |
| further finds that because online sales have sharply risen over | 11 |
| the years there is a large and increasing loss of revenue to | 12 |
| the State caused by the evasion of sales and use taxes on | 13 |
| cigarettes shipped in interstate commerce to Illinois | 14 |
| customers. The General Assembly finds that to help identify | 15 |
| purchasers of cigarettes from out-of-state sellers, the | 16 |
| Department of Revenue uses information required to be provided |
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| by the federal Jenkins Act (15 U.S.C. §§375-377) in order to | 2 |
| bill consumers for the taxes due. The General Assembly further | 3 |
| finds that many cigarette sellers do not comply with the | 4 |
| provisions of the Jenkins Act and that many other states, in | 5 |
| order to address this problem, have enacted their own reporting | 6 |
| laws intended to prevent further tax avoidance. Therefore, it | 7 |
| is intent of the General Assembly in enacting this Act to | 8 |
| facilitate the collection of all applicable State sales and use | 9 |
| taxes on cigarettes sold to residents of this State over the | 10 |
| Internet or by mail order by establishing a reporting | 11 |
| requirement for out-of-state cigarette sellers and penalties | 12 |
| for those persons who violate this Act. | 13 |
| Section 10. Definitions. As used in this Act, unless the | 14 |
| context otherwise requires: | 15 |
| "Cigarette" means any roll for smoking made wholly or in | 16 |
| part of tobacco, irrespective of size or shape and whether or | 17 |
| not the tobacco is flavored, adulterated, or mixed with any | 18 |
| other ingredient, and the wrapper or cover of which is made of | 19 |
| paper or any other substance or material except whole tobacco | 20 |
| leaf.
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| "Consumer" means an individual who is not a licensed | 22 |
| cigarette distributor or a licensed cigarette retailer. | 23 |
| "Delivery sale" means a sale of cigarettes to a consumer in | 24 |
| this State in which: | 25 |
| (1) the purchaser submits the order for the sale by |
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| means of a telephone or other method of voice transmission, | 2 |
| a delivery service, or the Internet or other online | 3 |
| service; or | 4 |
| (2) the cigarettes are delivered by a delivery service. | 5 |
| "Delivery service" means any person that is engaged in the | 6 |
| commercial delivery of letters, packages, or other containers. | 7 |
| "Department" means the Department of Revenue. | 8 |
| "Person" means any natural individual, firm, partnership, | 9 |
| association, joint stock company, joint adventure, public or | 10 |
| private corporation however formed, limited liability company, | 11 |
| or a receiver, executor, administrator, trustee, guardian, or | 12 |
| other representative appointed by order of any court. | 13 |
| "Person accepting a purchase order for a delivery sale" | 14 |
| means a person who fills a cigarette order given by a consumer | 15 |
| and processes the order for mail, shipping or other delivery, | 16 |
| or who contracts with another party to provide delivery service | 17 |
| to the purchaser. | 18 |
| "Purchase order" means a written or electronic document | 19 |
| authorizing a seller to provide cigarettes. | 20 |
| "Retail value" means the market price of the cigarettes | 21 |
| plus all applicable taxes at the location where the cigarettes | 22 |
| were mailed, shipped, or delivered. | 23 |
| Section 15. Delivery sales reporting requirements. | 24 |
| (a) Not later than the 15th day of each calendar month, | 25 |
| each person that has made a delivery sale of delivered, mailed, |
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| or shipped cigarettes during the previous calendar month, or | 2 |
| contracted with another party for delivery service in | 3 |
| connection with a delivery sale made during the previous | 4 |
| calendar month, shall file a report with the Department. The | 5 |
| report shall contain the following information: | 6 |
| (1) the name, trade name, and address of the principal | 7 |
| place of business of the seller and any other place of | 8 |
| business of the seller; | 9 |
| (2) the name and address of the consumer to whom the | 10 |
| delivery sale was made;
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| (3) the brand or brands of cigarettes that were sold in | 12 |
| the delivery sale; | 13 |
| (4) the quantity of cigarettes that were sold in the | 14 |
| delivery sale; and | 15 |
| (5) such other information as the Department may | 16 |
| require by rule. | 17 |
| (b) A person that satisfies the requirements of 15 U.S.C. | 18 |
| 376 is deemed to have met the requirements of this Section. | 19 |
| (c) The Department may adopt rules to authorize the | 20 |
| electronic filing of the report required under this Section. | 21 |
| Section 20. Penalties; seizure and forfeiture; hearings. | 22 |
| (a) The Department shall impose the following penalties for | 23 |
| each unreported sale of cigarettes: | 24 |
| (1) The first time a person violates Section 15 of | 25 |
| this Act, the person shall be subject to a civil penalty of |
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| $1,000 or five times the retail value of the cigarettes | 2 |
| involved in the violation, whichever is greater. | 3 |
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(2) In the case of a second or subsequent violation of | 4 |
| Section 15 of this Act, the person shall be subject to a | 5 |
| civil penalty of $5,000 or five times the retail value of | 6 |
| the cigarettes involved in the violation, whichever is | 7 |
| greater. | 8 |
| (b) The penalties prescribed under this Section are in | 9 |
| addition to and not in lieu of any other penalty applicable | 10 |
| under the laws of this State. | 11 |
| (c) Any cigarettes sold or attempted to be sold in a | 12 |
| delivery sale that violates this Act may be seized by the | 13 |
| Department and are subject to forfeiture. | 14 |
| (d) Any person aggrieved by a Department decision may, | 15 |
| within 30 days after notice of that decision, protest in | 16 |
| writing and request a hearing. The Department shall give notice | 17 |
| to the person of the time and place for the hearing and shall | 18 |
| hold a hearing before it issues a final administrative | 19 |
| decision. In the absence of a protest and request for a hearing | 20 |
| within 30 days, the Department's decision shall become final | 21 |
| without any further determination being made or notice given. | 22 |
| Section 25. Enforcement. All enforcement proceedings under | 23 |
| this Act shall be instituted by the Attorney General at the | 24 |
| request of the Department to require compliance with this Act, | 25 |
| to recover civil penalties authorized under Section 20 of this |
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| Act, and to seek any other remedy as provided by law. | 2 |
| Section 30. Rules. The Department may adopt rules to | 3 |
| implement, administer and enforce this Act. | 4 |
| Section 905. The Department of Revenue Law of the
Civil | 5 |
| Administrative Code of Illinois is amended by changing Section | 6 |
| 2505-380 as follows:
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| (20 ILCS 2505/2505-380) (was 20 ILCS 2505/39b47)
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| Sec. 2505-380.
Revocation of or refusal to issue a | 9 |
| certificate of
registration, permit, or license. The | 10 |
| Department has the power to
refuse to issue or reissue or, | 11 |
| after notice and an opportunity for
a hearing, to revoke a | 12 |
| certificate of registration, permit, or license
issued or | 13 |
| authorized to be issued by the Department if the applicant for
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| or holder of the certificate of registration, permit, or
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| license fails to
file a return, or to pay the tax, fee, | 16 |
| penalty, or interest shown in a
filed
return, or to pay any | 17 |
| final assessment of tax, fee,
penalty, or interest, as required | 18 |
| by the tax or fee Act under which the
certificate
of | 19 |
| registration, permit, or license is required or any other tax | 20 |
| or fee Act
administered
by the Department.
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| The procedure for notice and hearing prior to revocation | 22 |
| shall be as
provided under the Act pursuant to which the | 23 |
| certificate of registration,
permit, or license was issued.
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| (Source: P.A. 91-239, eff. 1-1-00.)
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| Section 910. The Cigarette Tax Act is amended by changing | 3 |
| Sections 1, 3-10, 6, 7, 8, 10, 11, 18b, 23, and 24 and by adding | 4 |
| Sections 4d, 4e and 26a as follows:
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| (35 ILCS 130/1) (from Ch. 120, par. 453.1)
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| Sec. 1. For the purposes of this Act:
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| "Cigarette", when used in this Act, shall be construed to | 8 |
| mean: Any
roll for smoking made wholly or in part of tobacco | 9 |
| irrespective of size
or shape and whether or not such tobacco | 10 |
| is flavored, adulterated or
mixed with any other ingredient, | 11 |
| and the wrapper or cover of which is
made of paper or any other | 12 |
| substance or material except tobacco.
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| "Person" means any natural individual, firm, partnership, | 14 |
| association, joint
stock company, joint adventure, public or | 15 |
| private corporation, however formed,
limited liability | 16 |
| company, or a receiver, executor, administrator, trustee,
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| guardian or other representative appointed by order of any | 18 |
| court.
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| "Prior Continuous Compliance Taxpayer" means any person | 20 |
| who is licensed
under this Act and who, having been a licensee | 21 |
| for a continuous period of 5
years, is determined by the | 22 |
| Department not to have been either delinquent
or deficient in | 23 |
| the payment of tax liability during that period or
otherwise in | 24 |
| violation of this Act. Also, any taxpayer who has, as
verified |
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| by the Department, continuously complied with the condition of | 2 |
| his
bond or other security under provisions of this Act for a | 3 |
| period of 5
consecutive years shall be considered to be a | 4 |
| "Prior continuous compliance
taxpayer". In calculating the | 5 |
| consecutive period of time described herein
for qualification | 6 |
| as a "prior continuous compliance taxpayer", a
consecutive | 7 |
| period of time of qualifying compliance immediately prior to
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| the effective date of this amendatory Act of 1987 shall be | 9 |
| credited to any
licensee who became licensed on or before the | 10 |
| effective date of this
amendatory Act of 1987.
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| "Department" means the Department of Revenue.
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| "Sale" means any transfer, exchange or barter in any manner | 13 |
| or by any
means whatsoever for a consideration, and includes | 14 |
| and means all sales
made by any person.
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| "Original Package" means the individual packet, box or | 16 |
| other container
whatsoever used to contain and to convey | 17 |
| cigarettes to the consumer upon which a tax stamp or other | 18 |
| indicia of tax payment is or should be affixed .
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| "Distributor" means any and each of the following:
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| (1) Any person engaged in the business of selling | 21 |
| cigarettes in this
State who brings or causes to be brought | 22 |
| into this State from without
this State any original | 23 |
| packages of cigarettes, on which original
packages there is | 24 |
| no authorized evidence underneath a sealed transparent
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| wrapper showing that the tax liability imposed by this Act | 26 |
| has been paid
or assumed by the out-of-State seller of such |
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| cigarettes, for sale or
other disposition in the course of | 2 |
| such business.
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| (2) Any person who makes, manufactures or fabricates | 4 |
| cigarettes in this
State for sale in this State, except a | 5 |
| person who makes, manufactures
or fabricates cigarettes as | 6 |
| a part of a correctional industries program
for sale to | 7 |
| residents incarcerated in penal institutions or resident | 8 |
| patients
of a State-operated mental health facility.
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| (3) Any person who makes, manufactures or fabricates | 10 |
| cigarettes
outside this State, which cigarettes are placed | 11 |
| in original packages
contained in sealed transparent | 12 |
| wrappers, for delivery or shipment into
this State, and who | 13 |
| elects to qualify and is accepted by the Department
as a | 14 |
| distributor under Section 4b of this Act.
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| "Distributor" does not include any person with respect to a | 16 |
| sale of cigarettes to a purchaser for use or consumption, and | 17 |
| not for resale. | 18 |
| "Place of business" shall mean and include any place where | 19 |
| cigarettes
are sold or where cigarettes are manufactured, | 20 |
| stored or kept for the
purpose of sale or consumption, | 21 |
| including any vessel, vehicle, airplane,
train or vending | 22 |
| machine.
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| "Business" means any trade, occupation, activity or | 24 |
| enterprise
engaged in for the purpose of selling cigarettes in | 25 |
| this State.
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| "Retailer" means any person who engages in the making of |
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| transfers of
the ownership of, or title to, cigarettes to a | 2 |
| purchaser for use or
consumption and not for resale in any | 3 |
| form, for a valuable consideration. "Retailer" does not include | 4 |
| a person:
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| (1) who transfers to residents incarcerated in penal | 6 |
| institutions
or resident patients of a State-operated | 7 |
| mental health facility ownership
of cigarettes made, | 8 |
| manufactured, or fabricated as part of a correctional
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| industries program; or | 10 |
| (2) who transfers cigarettes to a not-for-profit | 11 |
| research institution that conducts tests concerning the | 12 |
| health effects of tobacco products and who does not offer | 13 |
| the cigarettes for resale.
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| "Retailer" shall be construed to include any person who | 15 |
| engages in
the making of transfers of the ownership of, or | 16 |
| title to, cigarettes to
a purchaser, for use or consumption by | 17 |
| any other person to whom such
purchaser may transfer the | 18 |
| cigarettes without a valuable consideration,
except a person | 19 |
| who transfers to residents incarcerated in penal institutions
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| or resident patients of a State-operated mental health facility | 21 |
| ownership
of cigarettes made, manufactured or fabricated as | 22 |
| part of a correctional
industries program.
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| "Unstamped package of cigarettes" means a package of | 24 |
| cigarettes that does not bear a tax stamp as required by this | 25 |
| Act, including a package of cigarettes that bears a tax
stamp | 26 |
| of another state or taxing jurisdiction, a package of |
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| cigarettes that bears a counterfeit tax stamp, and a stamped or | 2 |
| unstamped package of cigarettes that is marked "Not for sale in | 3 |
| the United States". | 4 |
| (Source: P.A. 95-462, eff. 8-27-07.)
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| (35 ILCS 130/3-10)
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| Sec. 3-10. Cigarette enforcement.
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| (a) Prohibitions. It is unlawful for any person:
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| (1) to sell or distribute in this State; to acquire, | 9 |
| hold, own, possess,
or
transport, for sale or distribution | 10 |
| in this State; or to import, or cause to be
imported into | 11 |
| this State for sale or distribution in this State:
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| (A) any cigarettes the package of which:
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| (i) bears any statement, label, stamp, | 14 |
| sticker, or notice
indicating that the | 15 |
| manufacturer did not intend the cigarettes to be
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| sold, distributed, or used in the United States, | 17 |
| including but not
limited to labels stating "For | 18 |
| Export Only", "U.S. Tax Exempt",
"For Use Outside | 19 |
| U.S.", or similar wording; or
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| (ii) does not comply with:
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| (aa) all requirements imposed by or | 22 |
| pursuant to
federal law regarding warnings and | 23 |
| other information on
packages of cigarettes | 24 |
| manufactured, packaged, or imported
for sale, | 25 |
| distribution, or use in the United States, |
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| including
but not limited to the precise | 2 |
| warning labels specified in the
federal | 3 |
| Cigarette Labeling and Advertising Act, 15 | 4 |
| U.S.C.
1333; and
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| (bb) all federal trademark and copyright | 6 |
| laws;
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| (B) any cigarettes imported into the United States | 8 |
| in violation of
26 U.S.C. 5754 or any other federal | 9 |
| law, or implementing federal
regulations;
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| (C) any cigarettes that such person otherwise | 11 |
| knows or has reason
to know the manufacturer did not | 12 |
| intend to be sold, distributed, or used in
the United | 13 |
| States; or
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| (D) any cigarettes for which there has not been | 15 |
| submitted to the
Secretary of the U.S. Department of | 16 |
| Health and Human Services the list or
lists of the | 17 |
| ingredients added to tobacco in the manufacture of the
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| cigarettes required by the federal Cigarette Labeling | 19 |
| and Advertising Act,
15 U.S.C. 1335a;
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| (2) to alter the package of any cigarettes, prior to | 21 |
| sale or distribution
to
the
ultimate consumer, so as to | 22 |
| remove, conceal, or obscure:
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| (A) any statement, label, stamp, sticker, or | 24 |
| notice described in
subdivision (a)(1)(A)(i) of this | 25 |
| Section;
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| (B) any health warning that is not specified in, or |
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| does not conform
with the requirements of, the federal | 2 |
| Cigarette Labeling and Advertising
Act, 15 U.S.C. | 3 |
| 1333; or
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| (3) to affix any stamp required pursuant to this Act to | 5 |
| the package of any
cigarettes described in subdivision | 6 |
| (a)(1) of this Section or altered in
violation of
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| subdivision (a)(2).
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| (b) Documentation. On the first business day of each month, | 9 |
| each person
licensed
to affix the State tax stamp to cigarettes | 10 |
| shall file with the Department, for
all cigarettes
imported | 11 |
| into the United States to which the person has affixed the tax | 12 |
| stamp
in the
preceding month:
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| (1) a copy of:
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| (A) the permit issued pursuant to the Internal | 15 |
| Revenue Code, 26
U.S.C. 5713, to the person importing | 16 |
| the cigarettes into the United States
allowing the | 17 |
| person to import the cigarettes; and
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| (B) the customs form containing, with respect to | 19 |
| the cigarettes, the
internal revenue tax information | 20 |
| required by the U.S. Bureau of Alcohol,
Tobacco and | 21 |
| Firearms;
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| (2) a statement, signed by the person under penalty of | 23 |
| perjury, which shall
be treated as confidential by the | 24 |
| Department and exempt from disclosure under
the Freedom of | 25 |
| Information Act, identifying the brand and brand styles of | 26 |
| all such
cigarettes, the quantity of each brand style of |
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| such cigarettes, the supplier of such
cigarettes, and the | 2 |
| person or persons, if any, to whom such cigarettes have | 3 |
| been
conveyed for resale; and a separate statement, signed | 4 |
| by the individual under
penalty of perjury, which shall not | 5 |
| be treated as confidential or exempt from
disclosure, | 6 |
| separately identifying the brands and brand styles of such
| 7 |
| cigarettes;
and
| 8 |
| (3) a statement, signed by an officer of the | 9 |
| manufacturer or importer
under penalty of perjury, | 10 |
| certifying that the manufacturer or importer has
complied | 11 |
| with:
| 12 |
| (A) the package health warning and ingredient | 13 |
| reporting
requirements of the federal Cigarette | 14 |
| Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 15 |
| with respect to such cigarettes; and
| 16 |
| (B) the provisions of Exhibit T of the Master | 17 |
| Settlement Agreement
entered in
the case of People of | 18 |
| the State of Illinois v. Philip Morris, et al. (Circuit
| 19 |
| Court of Cook County, No. 96-L13146), including a | 20 |
| statement
indicating whether the manufacturer is, or | 21 |
| is not, a participating tobacco
manufacturer within | 22 |
| the meaning of Exhibit T.
| 23 |
| (c) Administrative sanctions.
| 24 |
| (1) Upon finding that a distributor or retailer has | 25 |
| committed any of the acts
prohibited by
subsection
(a), | 26 |
| knowing or having reason to know that he or she has done |
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| so, or has failed
to comply
with any requirement of | 2 |
| subsection (b), the Department
may revoke or suspend the | 3 |
| license or licenses of that any
distributor or retailer | 4 |
| pursuant to the procedures set forth in Section 6 and | 5 |
| impose on the
distributor or retailer a civil penalty in an | 6 |
| amount not to exceed the greater of 500% of
the
retail | 7 |
| value of the cigarettes involved or $5,000.
| 8 |
| (2) Cigarettes that are acquired, held, owned, | 9 |
| possessed, transported in,
imported into, or sold or | 10 |
| distributed in this State in violation of this
Section | 11 |
| shall be deemed contraband under this Act and are subject | 12 |
| to seizure
and forfeiture as provided in this Act, and all | 13 |
| such cigarettes seized and
forfeited shall be destroyed. | 14 |
| Such cigarettes shall be deemed contraband
whether the | 15 |
| violation of this Section is knowing or otherwise.
| 16 |
| (d) Unfair trade practices. A violation of subsection (a) | 17 |
| or subsection
(b) of this Section shall constitute an unlawful | 18 |
| practice as provided in the
Consumer Fraud and Deceptive | 19 |
| Business Practices Act.
| 20 |
| (d-5) Criminal penalties. A person who violates subsection | 21 |
| (a) or subsection (b) of this Section shall be guilty of a | 22 |
| Class 4 felony. | 23 |
| (e) Unfair cigarette sales. For purposes of the Trademark | 24 |
| Registration and
Protection Act and the Counterfeit Trademark | 25 |
| Act, cigarettes imported or
reimported into the United States | 26 |
| for sale or distribution under any trade
name, trade dress, or |
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| trademark that is the same as, or is confusingly similar
to, | 2 |
| any trade name, trade dress, or trademark used for cigarettes | 3 |
| manufactured
in the United States for sale or distribution in | 4 |
| the United States shall be
presumed to have been purchased | 5 |
| outside of the ordinary channels of trade.
| 6 |
| (f) General provisions.
| 7 |
| (1) This Section shall be enforced by the Department; | 8 |
| provided that, at
the request of the Director of Revenue or | 9 |
| the Director's duly authorized agent,
the State police and | 10 |
| all local police authorities shall enforce the provisions
| 11 |
| of this Section. The Attorney General has concurrent power | 12 |
| with the State's
Attorney of any county to enforce this | 13 |
| Section.
| 14 |
| (2) For the purpose of enforcing this Section, the | 15 |
| Director of Revenue and
any agency to which the Director | 16 |
| has delegated enforcement
responsibility pursuant to | 17 |
| subdivision (f)(1) may request information from any
State | 18 |
| or local agency and may share information with and request | 19 |
| information
from any federal agency and any agency of any | 20 |
| other state or any local agency
of any other state.
| 21 |
| (3) In addition to any other remedy provided by law, | 22 |
| including
enforcement as provided in subdivision (a)(1), | 23 |
| any person may bring an action
for appropriate injunctive | 24 |
| or other equitable relief for a violation of this
Section; | 25 |
| actual damages, if any, sustained by reason of the | 26 |
| violation; and, as
determined by the court, interest on the |
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| damages from the date of the
complaint, taxable costs, and | 2 |
| reasonable attorney's fees. If the trier of fact
finds that | 3 |
| the violation is flagrant, it may increase recovery to an | 4 |
| amount not
in excess of 3 times the actual damages | 5 |
| sustained by reason of the violation.
| 6 |
| (g) Definitions. As used in this Section:
| 7 |
| "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 8 |
| "Package" means that term as defined in 15 U.S.C. 1332(4).
| 9 |
| (h) Applicability.
| 10 |
| (1) This Section does not apply to:
| 11 |
| (A) cigarettes allowed to be imported or brought | 12 |
| into the United
States for personal use; and
| 13 |
| (B) cigarettes sold or intended to be sold as | 14 |
| duty-free merchandise
by a duty-free sales enterprise | 15 |
| in accordance with the provisions of 19
U.S.C. 1555(b) | 16 |
| and any implementing regulations; except that this | 17 |
| Section
shall apply to any such cigarettes that are | 18 |
| brought back into the customs
territory for resale | 19 |
| within the customs territory.
| 20 |
| (2) The penalties provided in this Section are in | 21 |
| addition to any other
penalties imposed under other | 22 |
| provision of law.
| 23 |
| (Source: P.A. 91-810, eff. 6-13-00.)
| 24 |
| (35 ILCS 130/4d new) | 25 |
| Sec. 4d. Retailer's License. |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| (a) Commencing January 1, 2010, no person may engage in | 2 |
| business as a retailer of cigarettes in this State without | 3 |
| first having obtained a retailer's license from the Department. | 4 |
| Application for a license shall be made to the Department in | 5 |
| form as furnished and prescribed by the Department. Each | 6 |
| applicant for a license under this Section shall furnish to the | 7 |
| Department on the form signed and verified by the applicant the | 8 |
| following information: | 9 |
| (1) the name and address of the applicant; | 10 |
| (2) the address of the location at which the applicant | 11 |
| proposes to engage in business as a retailer of cigarettes | 12 |
| in this State; and | 13 |
| (3) such other additional information as the | 14 |
| Department may lawfully require by its rules and | 15 |
| regulations. | 16 |
| (b) The annual license fee payable to the Department for | 17 |
| each retailer's license shall be $250. The fee will be placed | 18 |
| into the Tax Compliance and Administration Fund and used | 19 |
| towards the cost of retail inspections. Each applicant for a | 20 |
| license shall pay that fee to the Department at the time of | 21 |
| submitting the application for a license to the Department. | 22 |
| (c) The Department may, in its discretion, require an | 23 |
| applicant who is required to procure a retailer's license to | 24 |
| file with the application a joint and several bond. If | 25 |
| required, such bond shall be executed to the Department of | 26 |
| Revenue, with good and sufficient surety or sureties residing |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| or licensed to do business within the State of Illinois, in an | 2 |
| amount of not less than $2,500, conditioned upon the true and | 3 |
| faithful compliance by the licensee with all of the provisions | 4 |
| of this Act. If required, such bond, or a reissue thereof, or a | 5 |
| substitute therefor, shall be kept in effect during the entire | 6 |
| period covered by the license. A separate application for | 7 |
| license shall be made, a separate annual license fee paid, and, | 8 |
| if required, a separate bond filed, for each place of business | 9 |
| at which a person who is required to procure a retailer's | 10 |
| license under this Section proposes to engage in business as a | 11 |
| retailer in Illinois under this Act. | 12 |
| The following are ineligible to receive a retailer's | 13 |
| license under this Act: | 14 |
| (1) a person who is not of good character and | 15 |
| reputation in the community in which he resides; | 16 |
| (2) a person who has been convicted of a felony under | 17 |
| any federal or State law, if the Department, after | 18 |
| investigation and a hearing, if requested by the applicant, | 19 |
| determines that the person has not been sufficiently | 20 |
| rehabilitated to warrant the public trust; | 21 |
| (3) a corporation, if any officer, manager, or director | 22 |
| thereof, or any stockholder or stockholders owning in the | 23 |
| aggregate more than 5% of the stock of the corporation, | 24 |
| would not be eligible to receive a license under this Act | 25 |
| for any reason; | 26 |
| (4) a person who possesses a distributor's license |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| under Section 4 of this Act or a distributor's license | 2 |
| under Section 4b of this Act. | 3 |
| (d) The Department, upon receipt of an application, license | 4 |
| fee, and bond in proper form from a person who is eligible to | 5 |
| receive a retailer's license under this Act, shall issue to the | 6 |
| applicant a license in form as prescribed by the Department, | 7 |
| which license shall permit the applicant to engage in business | 8 |
| as a retailer under this Act at the place shown in the | 9 |
| application. All licenses issued by the Department under this | 10 |
| Section shall be valid for not to exceed one year after | 11 |
| issuance unless sooner revoked, canceled or suspended as | 12 |
| provided in this Act. No license issued under this Section is | 13 |
| transferable or assignable. The license shall be conspicuously | 14 |
| displayed in the place of business conducted by the licensee in | 15 |
| Illinois under the license. The Department shall not issue a | 16 |
| license to a retailer unless the retailer is also validly | 17 |
| registered under the Retailers' Occupation Tax Act. A person | 18 |
| who obtains a license as a retailer and then ceases to do | 19 |
| business as specified in the license, or who does not commence | 20 |
| business, or who obtains a distributor's license, or whose | 21 |
| license is suspended or revoked, shall immediately surrender | 22 |
| the license to the Department. | 23 |
| (e) Any person aggrieved by any decision of the Department | 24 |
| under this subsection may, within 20 days after notice of the | 25 |
| decision, protest and request a hearing. Upon receiving a | 26 |
| request for a hearing, the Department shall give notice to the |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| person requesting the hearing of the time and place fixed for | 2 |
| the hearing and shall hold a hearing in conformity with the | 3 |
| provisions of this Act and then issue its final administrative | 4 |
| decision in the matter to that person. In the absence of a | 5 |
| protest and request for a hearing within 20 days, the | 6 |
| Department's decision shall become final without any further | 7 |
| determination being made or notice given. | 8 |
| (35 ILCS 130/4e new) | 9 |
| Sec. 4e. Purchases of Cigarettes by Licensed Retailers. A | 10 |
| person who possesses a retailer's license under Section 4d of | 11 |
| this Act shall obtain cigarettes for sale only from a licensed | 12 |
| distributor.
| 13 |
| (35 ILCS 130/6) (from Ch. 120, par. 453.6)
| 14 |
| Sec. 6. Revocation, cancellation, or suspension of | 15 |
| license. | 16 |
| (a) The Department may, after notice and hearing as | 17 |
| provided for by this
Act, revoke, cancel or suspend the license | 18 |
| of any distributor or retailer for the
violation of any | 19 |
| provision of this Act, or for noncompliance with any
provision | 20 |
| herein contained, or for any noncompliance with any lawful rule
| 21 |
| or regulation promulgated by the Department under Section 8 of | 22 |
| this Act or under the Department of Revenue Law , or
because the | 23 |
| licensee is determined to be ineligible for a distributor's
| 24 |
| license for any one or more of the reasons provided for in |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| Section 4 of
this Act , or because the licensee has been | 2 |
| determined to be ineligible for a retailer's license for any | 3 |
| one or more of the reasons provided for in Section 4d of this | 4 |
| Act . However, no such license shall be revoked, cancelled or
| 5 |
| suspended, except after a hearing by the Department with notice | 6 |
| to the
distributor or retailer , as aforesaid, and affording | 7 |
| such distributor or retailer a reasonable
opportunity to appear | 8 |
| and defend, and any distributor or retailer aggrieved by any
| 9 |
| decision of the Department with respect thereto may have the | 10 |
| determination
of the Department judicially reviewed, as herein | 11 |
| provided.
| 12 |
| (a-5) The Department may revoke, cancel, or suspend the | 13 |
| license of any
distributor for a violation of the Tobacco | 14 |
| Product Manufacturers' Escrow
Enforcement Act as provided in | 15 |
| Section 20 of that Act.
| 16 |
| (a-10) The Department shall suspend for 7 days the license | 17 |
| of a
retailer for a first violation of the Sale of Tobacco to | 18 |
| Minors Act, as provided in Section 3 of that Act. | 19 |
| The Department shall suspend for 30 days the license of a
| 20 |
| retailer for a second violation of the Sale of Tobacco to | 21 |
| Minors Act, as provided in Section 3 of that Act. | 22 |
| The Department shall revoke the license of a retailer for a | 23 |
| third or subsequent violation of the Sale of Tobacco to Minors | 24 |
| Act, as provided in Section 3 of that Act. | 25 |
| (b) Any distributor or retailer aggrieved by any decision | 26 |
| of the Department under this
Section
may, within 20 days after |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| notice of the decision, protest and request a
hearing. Upon | 2 |
| receiving a request for a hearing, the Department shall give
| 3 |
| notice in writing to the distributor or retailer requesting the | 4 |
| hearing that contains a
statement of the charges preferred | 5 |
| against the distributor or retailer and that states the
time | 6 |
| and place fixed for the hearing. The Department shall hold the | 7 |
| hearing in
conformity with the provisions of this Act and then | 8 |
| issue its final
administrative decision in the matter to the | 9 |
| distributor or retailer . In the absence of a
protest and | 10 |
| request for a hearing within 20 days, the Department's decision
| 11 |
| shall become final without any further determination being made | 12 |
| or notice
given.
| 13 |
| (c) No license so revoked, as aforesaid, shall be reissued | 14 |
| to any such
distributor or retailer within a period of 6 months | 15 |
| after the date of the final
determination of such revocation. | 16 |
| No such license shall be reissued at all
so long as the person | 17 |
| who would receive a distributor's the license is ineligible to
| 18 |
| receive a distributor's license under this Act for any one or | 19 |
| more of the
reasons provided for in Section 4 of this Act , or | 20 |
| so long as the person who would receive a retailer's license is | 21 |
| ineligible to receive a retailer's license under this Act for | 22 |
| any one or more of the reasons provided for in Section 4d of | 23 |
| this Act .
| 24 |
| (d) The Department upon complaint filed in the circuit
| 25 |
| court may by injunction
restrain any person who fails, or | 26 |
| refuses, to comply with any of the
provisions of this Act from |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| acting as a distributor of cigarettes in this
State.
| 2 |
| (Source: P.A. 91-901, eff. 1-1-01; 92-737, eff. 7-25-02.)
| 3 |
| (35 ILCS 130/7) (from Ch. 120, par. 453.7)
| 4 |
| Sec. 7.
The Department or any officer or employee of the | 5 |
| Department
designated, in writing, by the Director thereof, | 6 |
| shall at its or his or
her own instance, or on the written | 7 |
| request of any distributor , retailer, or other interested
party | 8 |
| to the proceeding, issue subpoenas requiring the attendance of | 9 |
| and
the giving of testimony by witnesses, and subpoenas duces | 10 |
| tecum requiring
the production of books, papers, records or | 11 |
| memoranda. All subpoenas and
subpoenas duces tecum issued under | 12 |
| the terms of this Act may be served by
any person of full age. | 13 |
| The fees of witnesses for attendance and travel
shall be the | 14 |
| same as the fees of witnesses before the circuit court of this
| 15 |
| State; such fees to be paid when the witness is excused from | 16 |
| further
attendance. When the witness is subpoenaed at the | 17 |
| instance of the
Department or any officer or employee thereof, | 18 |
| such fees shall be paid in
the same manner as other expenses of | 19 |
| the Department, and when the witness
is subpoenaed at the | 20 |
| instance of any other party to any such proceeding,
the cost of | 21 |
| service of the subpoena or subpoena duces tecum and the fee of
| 22 |
| the witness shall be borne by the party at whose instance the | 23 |
| witness is
summoned. In such case the Department, in its | 24 |
| discretion, may require a
deposit to cover the cost of such | 25 |
| service and witness fees. A subpoena or
subpoena duces tecum so |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| issued shall be served in the same manner as a subpoena
or | 2 |
| subpoena duces tecum issued out of a court.
| 3 |
| Any circuit court of this State, upon the
application of | 4 |
| the Department or any officer or employee thereof, or upon
the | 5 |
| application of any other party to the proceeding, may, in its
| 6 |
| discretion, compel the attendance of witnesses, the production | 7 |
| of books,
papers, records or memoranda and the giving of | 8 |
| testimony before the
Department or any officer or employee | 9 |
| thereof conducting an investigation
or holding a hearing | 10 |
| authorized by this Act, by an attachment for contempt,
or | 11 |
| otherwise, in the same manner as production of evidence may be | 12 |
| compelled
before the court.
| 13 |
| The Department or any officer or employee thereof, or any | 14 |
| other party in
an investigation or hearing before the | 15 |
| Department, may cause the
depositions of witnesses within the | 16 |
| State to be taken in the manner
prescribed by law for like | 17 |
| depositions, or depositions for discovery in
civil actions in | 18 |
| courts of this State, and to that end compel the
attendance of | 19 |
| witnesses and the production of books, papers, records or
| 20 |
| memoranda, in the same manner hereinbefore provided.
| 21 |
| (Source: P.A. 83-334.)
| 22 |
| (35 ILCS 130/8) (from Ch. 120, par. 453.8)
| 23 |
| Sec. 8.
The Department may make, promulgate and enforce | 24 |
| such
reasonable rules and regulations relating to the | 25 |
| administration and
enforcement of this Act as may be deemed |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| expedient.
| 2 |
| Whenever notice is required by this Act, such notice may be | 3 |
| given by
United States certified or registered mail, addressed | 4 |
| to the person concerned at his
last known address, and proof of | 5 |
| such mailing shall be sufficient for the
purposes of this Act. | 6 |
| Notice of any hearing provided for by this Act shall
be so | 7 |
| given not less than 7 days prior to the day fixed for the | 8 |
| hearing.
| 9 |
| Hearings provided for in this Act shall be held:
| 10 |
| (1) In Cook County, if the taxpayer's principal place of | 11 |
| business is in
that county;
| 12 |
| (2) At the Department's office nearest the taxpayer's | 13 |
| principal place of
business, if the taxpayer's principal place | 14 |
| of business is in Illinois but
outside Cook County;
| 15 |
| (3) In Sangamon County, if the taxpayer's principal place | 16 |
| of business is
outside Illinois.
| 17 |
| The Circuit Court of the County wherein the hearing is held | 18 |
| has
power to review all final administrative decisions of the | 19 |
| Department in
administering this Act. The provisions of the | 20 |
| Administrative Review Law,
and all amendments and
| 21 |
| modifications thereof, and the rules adopted pursuant thereto, | 22 |
| shall
apply to and govern all proceedings for the judicial | 23 |
| review of final
administrative decisions of the Department | 24 |
| under this Act. The term
"administrative decision" is defined | 25 |
| as in Section 3-101 of the Code of Civil Procedure.
| 26 |
| Service upon the Director of Revenue or Assistant Director |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| of Revenue
of summons issued in any action to review a final
| 2 |
| administrative decision shall be service upon the Department. | 3 |
| The
Department shall certify the record of its proceedings if | 4 |
| the distributor or retailer
pays to it the sum of 75˘ per page | 5 |
| of testimony taken before the Department
and 25˘ per page of | 6 |
| all other matters contained in such record, except that
these | 7 |
| charges may be waived where the Department is satisfied that | 8 |
| the aggrieved
party is a poor person who cannot afford to pay | 9 |
| such charges.
Before the delivery of such record to the person | 10 |
| applying for it, payment
of these charges must be made, and if
| 11 |
| the record is not paid for within 30 days after notice that | 12 |
| such record
is available, the
complaint may be dismissed by the | 13 |
| court upon motion of the Department.
| 14 |
| No stay order shall be entered by the Circuit Court unless | 15 |
| the
distributor or retailer files with the court a bond in an | 16 |
| amount fixed and approved by
the court, to indemnify the State | 17 |
| against all loss and injury which may be
sustained by it on | 18 |
| account of the review proceedings and to secure all
costs which | 19 |
| may be occasioned by such proceedings.
| 20 |
| Whenever any proceeding provided by this Act is begun | 21 |
| before the
Department, either by the Department or by a person | 22 |
| subject to this Act,
and such person thereafter dies or becomes | 23 |
| a person under legal disability
before such
proceeding is | 24 |
| concluded, the legal representative of the deceased person
or | 25 |
| of the person under legal disability shall notify
the | 26 |
| Department of such death or legal disability.
Such legal |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| representative, as such, shall then be substituted
by the | 2 |
| Department for such person. If the legal representative fails | 3 |
| to
notify the Department of his or her appointment as such | 4 |
| legal representative, the
Department may, upon its own motion, | 5 |
| substitute such legal representative
in the proceeding pending | 6 |
| before the Department for the person who died or
became a | 7 |
| person under legal disability.
| 8 |
| (Source: P.A. 83-706.)
| 9 |
| (35 ILCS 130/10) (from Ch. 120, par. 453.10)
| 10 |
| Sec. 10.
The Department, or any officer or employee | 11 |
| designated in writing
by the Director thereof, for the purpose | 12 |
| of administering and enforcing the
provisions of this Act, may | 13 |
| hold investigations and hearings concerning
any matters | 14 |
| covered by this Act, and may examine books, papers, records or
| 15 |
| memoranda bearing upon the sale or other disposition of | 16 |
| cigarettes by such
distributor or retailer , and may issue | 17 |
| subpoenas requiring the attendance of such
distributor or | 18 |
| retailer , or any officer or employee of such distributor or | 19 |
| retailer , or any person
having knowledge of the facts, and may | 20 |
| take testimony and require proof,
and may issue subpoenas duces | 21 |
| tecum to compel the production of relevant
books, papers, | 22 |
| records and memoranda, for the information of the
Department.
| 23 |
| In the conduct of any investigation or hearing provided for | 24 |
| by this Act,
neither the Department, nor any officer or | 25 |
| employee thereof, shall be bound
by the technical rules of |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| evidence, and no informality in the proceedings
nor in the | 2 |
| manner of taking testimony shall invalidate any rule, order,
| 3 |
| decision or regulation made, approved or confirmed by the | 4 |
| Department.
| 5 |
| The Director of Revenue, or any duly authorized officer or | 6 |
| employee of
the Department, shall have the power to administer | 7 |
| oaths to such persons
required by this Act to give testimony | 8 |
| before the said Department.
| 9 |
| The books, papers, records and memoranda of the Department, | 10 |
| or parts
thereof, may be proved in any hearing, investigation | 11 |
| or legal proceeding by
a reproduced copy thereof under the | 12 |
| certificate of the Director of Revenue.
Such reproduced copy | 13 |
| shall, without further proof, be admitted into
evidence before | 14 |
| the Department or in any legal proceeding.
| 15 |
| (Source: Laws 1965, p. 192.)
| 16 |
| (35 ILCS 130/11) (from Ch. 120, par. 453.11)
| 17 |
| Sec. 11.
Every distributor and every retailer of | 18 |
| cigarettes, who is required to procure a
license under this | 19 |
| Act, shall keep within Illinois, at his licensed
address, | 20 |
| complete and accurate records of cigarettes held, purchased,
| 21 |
| manufactured, brought in or caused to be brought in from | 22 |
| without the State,
and sold, or otherwise disposed of, and | 23 |
| shall preserve and keep within
Illinois at his licensed address | 24 |
| all invoices, bills of lading, sales
records, copies of bills | 25 |
| of sale, inventory at the close of each period for
which a |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| return is required of all cigarettes on hand and of all | 2 |
| cigarette
revenue stamps, both affixed and unaffixed, and other | 3 |
| pertinent papers and
documents relating to the manufacture, | 4 |
| purchase, sale or disposition of
cigarettes. All books and | 5 |
| records and other papers and documents that are
required by | 6 |
| this Act to be kept shall be kept in the English language, and
| 7 |
| shall, at all times during the usual business hours of the day, | 8 |
| be subject
to inspection by the Department or its duly | 9 |
| authorized agents and employees.
The Department may adopt rules | 10 |
| that establish requirements, including record
forms and | 11 |
| formats, for records required to be kept and maintained by | 12 |
| taxpayers.
For purposes of this Section, "records" means all | 13 |
| data maintained by the
taxpayer, including data on paper, | 14 |
| microfilm, microfiche or any type of
machine-sensible data | 15 |
| compilation. Those books, records, papers and documents
shall | 16 |
| be preserved for a period of at least 3 years after the date of | 17 |
| the
documents, or the date of the entries appearing in the | 18 |
| records, unless the
Department, in writing, authorizes their | 19 |
| destruction or disposal at an earlier
date. At all times during | 20 |
| the usual business hours of the day any duly
authorized agent | 21 |
| or employee of the Department may enter any place of business
| 22 |
| of the distributor or retailer , without a search warrant, and | 23 |
| inspect the premises and the
stock or packages of cigarettes | 24 |
| and the vending devices therein contained, to
determine whether | 25 |
| any of the provisions of this Act are being violated. If such
| 26 |
| agent or employee is denied free access or is hindered or |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| interfered with in
making such examination as herein provided, | 2 |
| the license of the distributor or retailer at
such premises | 3 |
| shall be subject to revocation by the Department.
| 4 |
| (Source: P.A. 88-480.)
| 5 |
| (35 ILCS 130/18b) (from Ch. 120, par. 453.18b)
| 6 |
| Sec. 18b.
Any person licensed or required to be licensed as | 7 |
| a retailer under this Act possessing original packages of | 8 |
| unstamped packages of cigarettes is liable to pay to the | 9 |
| Department, for deposit into the Tax Compliance and | 10 |
| Administration Fund, a penalty for each such package of | 11 |
| cigarettes, unless reasonable cause for possessing said | 12 |
| unstamped packages of cigarettes can be established by the | 13 |
| person upon whom the penalty is imposed. The penalty shall be | 14 |
| $15 per package for possession of less than 101 packages and | 15 |
| $25 for possession of each package in excess of 100 packages. | 16 |
| This penalty is in addition to the taxes imposed by this Act. | 17 |
| Such penalty may be recovered by the Department in a civil | 18 |
| action. Reasonable cause shall be determined in each situation | 19 |
| in accordance with rules adopted by the Department. The | 20 |
| provisions of the Uniform Penalty and Interest Act (35 ILCS | 21 |
| 735/) do not apply to this Section. With the exception of | 22 |
| licensed distributors, anyone possessing
cigarettes contained | 23 |
| in original packages which are not tax stamped as
required by | 24 |
| this Act, or which are improperly tax stamped, shall be liable
| 25 |
| to pay, to the Department for deposit in the State Treasury, a |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| penalty of
$15 for each such package of cigarettes in excess of | 2 |
| 100 packages . Such
penalty may be recovered by the Department | 3 |
| in a civil action.
| 4 |
| (Source: P.A. 83-1428.)
| 5 |
| (35 ILCS 130/23) (from Ch. 120, par. 453.23)
| 6 |
| Sec. 23.
Every distributor , retailer, or other person who | 7 |
| shall knowingly and wilfully
sell or offer for sale any | 8 |
| original package, as defined in this Act,
having affixed | 9 |
| thereto any fraudulent, spurious, imitation or counterfeit
| 10 |
| stamp, or stamp which has been previously affixed, or affixes a | 11 |
| stamp which
has previously been affixed to an original package, | 12 |
| or who shall knowingly
and wilfully sell or offer for sale any | 13 |
| original package, as defined in
this Act, having imprinted | 14 |
| thereon underneath the sealed transparent
wrapper thereof any | 15 |
| fraudulent, spurious, imitation or counterfeit tax
imprint, | 16 |
| shall be deemed guilty of a Class 2 felony.
| 17 |
| (Source: P.A. 83-1428.)
| 18 |
| (35 ILCS 130/24) (from Ch. 120, par. 453.24)
| 19 |
| Sec. 24. Punishment for sale or possession of unstamped | 20 |
| packages.
| 21 |
| (a) Any person licensed or required to be licensed as a | 22 |
| retailer under this Act, other than a person licensed as a | 23 |
| distributor or a transporter, as defined in Section 9c of this | 24 |
| Act, who has in his possession, offers for sale, or sells 100 |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| or fewer original packages of unstamped packages of cigarettes, | 2 |
| shall be guilty of a Class A misdemeanor for a first offense | 3 |
| and a Class 4 felony for each subsequent offense. | 4 |
| (b) Any person licensed or required to be licensed as a | 5 |
| retailer under this Act, other than a person licensed as a | 6 |
| distributor or a transporter, as defined in Section 9c of this | 7 |
| Act, who has in his possession, offers for sale or sells more | 8 |
| than 100 but fewer than 1001 original packages of unstamped | 9 |
| packages of cigarettes, shall be guilty of a Class 4 felony. | 10 |
| (c) Any person licensed or required to be licensed as a | 11 |
| retailer under this Act, other than a person licensed as a | 12 |
| distributor or a transporter, as defined in Section 9c of this | 13 |
| Act, who has in his possession, offers for sale or sells more | 14 |
| than 1000 original packages of unstamped packages of | 15 |
| cigarettes, shall be guilty of a Class 3 felony. | 16 |
| (d) If a retailer possesses more than 100 original packages | 17 |
| of unstamped packages of cigarettes, the prima facie | 18 |
| presumption shall arise that the retailer was offering the | 19 |
| original packages of unstamped packages of cigarettes for sale. | 20 |
| If more than more than 100 original packages of unstamped | 21 |
| packages of cigarettes are found at a location, the prima facie | 22 |
| presumption shall arise that the retailer is in possession of | 23 |
| the original packages of unstamped packages of cigarettes. | 24 |
| (e) Any person licensed as a distributor or transporter, as | 25 |
| defined in Section 9c of this Act, who sells an original | 26 |
| package of an unstamped package of cigarettes, except when the |
|
|
|
09600SB0317sam003 |
- 34 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| sale is made under such circumstances that the tax imposed by | 2 |
| this Act may not legally be levied because of the Constitution | 3 |
| or laws of the United States, shall be guilty of a Class 3 | 4 |
| felony. | 5 |
| (a) Any person other than a licensed distributor who sells,
| 6 |
| offers for sale, or has in his possession with intent to sell | 7 |
| or offer
for sale, more than 100 original packages, not tax
| 8 |
| stamped or tax imprinted
underneath the sealed transparent | 9 |
| wrapper of such original package in
accordance with this Act, | 10 |
| shall be guilty of a Class 4 felony.
| 11 |
| (a-5) Any person other than a licensed distributor who | 12 |
| sells, offers for
sale, or has in his possession with intent to | 13 |
| sell or offer for sale, 100 or
fewer original packages, not tax | 14 |
| stamped or tax imprinted underneath the sealed
transparent | 15 |
| wrapper of the original package in accordance with this Act,
is | 16 |
| guilty of a Class A misdemeanor for the first offense and a | 17 |
| Class 4 felony
for each subsequent offense.
| 18 |
| (b) Any distributor who sells an original package of | 19 |
| cigarettes, not
tax stamped or tax imprinted underneath the | 20 |
| sealed transparent wrapper
of such original package in | 21 |
| accordance with this Act, except when the
sale is made under | 22 |
| such circumstances that the tax imposed by this Act
may not | 23 |
| legally be levied because of the Constitution or laws of the
| 24 |
| United States, shall be guilty of a Class 3 felony.
| 25 |
| (Source: P.A. 92-322, eff. 1-1-02.)
|
|
|
|
09600SB0317sam003 |
- 35 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| (35 ILCS 130/26a new)
| 2 |
| Sec. 26a. Operation without retail license. Any person who | 3 |
| operates as a retailer of original packages of cigarettes as | 4 |
| defined by this Act without having a license as required by | 5 |
| this Act shall be guilty of a Class 4 felony.
| 6 |
| (35 ILCS 130/18c rep.)
| 7 |
| Section 915. The Cigarette Tax Act is amended by repealing | 8 |
| Section 18c. | 9 |
| Section 920. The Cigarette Use Tax Act is amended by | 10 |
| changing Sections 1, 3-10, 12, 25b, and 30 as follows:
| 11 |
| (35 ILCS 135/1) (from Ch. 120, par. 453.31)
| 12 |
| Sec. 1. For the purpose of this Act, unless otherwise | 13 |
| required by the
context:
| 14 |
| "Use" means the exercise by any person of any right or | 15 |
| power over
cigarettes incident to the ownership or possession | 16 |
| thereof, other than the
making of a sale thereof in the course | 17 |
| of engaging in a business of selling
cigarettes and shall | 18 |
| include the keeping or retention of cigarettes for use , except | 19 |
| that "use" shall not include the use of cigarettes by a | 20 |
| not-for-profit research institution conducting tests | 21 |
| concerning the health effects of tobacco products, provided the | 22 |
| cigarettes are not offered for resale .
| 23 |
| "Cigarette" means any roll for smoking made wholly or in |
|
|
|
09600SB0317sam003 |
- 36 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| part of tobacco
irrespective of size or shape and whether or | 2 |
| not such tobacco is flavored,
adulterated or mixed with any | 3 |
| other ingredient, and the wrapper or cover of
which is made of | 4 |
| paper or any other substance or material except tobacco.
| 5 |
| "Person" means any natural individual, firm, partnership, | 6 |
| association,
joint stock company, joint adventure, public or | 7 |
| private corporation,
however formed, limited liability | 8 |
| company, or a receiver, executor,
administrator, trustee, | 9 |
| guardian or other representative appointed by order of
any | 10 |
| court.
| 11 |
| "Department" means the Department of Revenue.
| 12 |
| "Sale" means any transfer, exchange or barter in any manner | 13 |
| or by any
means whatsoever for a consideration, and includes | 14 |
| and means all sales made
by any person.
| 15 |
| "Original Package" means the individual packet, box or | 16 |
| other container
whatsoever used to contain and to convey | 17 |
| cigarettes to the consumer upon which a tax stamp or other | 18 |
| indicia of tax payment is or should be affixed .
| 19 |
| "Distributor" means any and each of the following:
| 20 |
| a. Any person engaged in the business of selling | 21 |
| cigarettes in this
State who brings or causes to be brought | 22 |
| into this State from without this
State any original | 23 |
| packages of cigarettes, on which original packages there
is | 24 |
| no authorized evidence underneath a sealed transparent | 25 |
| wrapper showing
that the tax liability imposed by this Act | 26 |
| has been paid or assumed by the
out-of-State seller of such |
|
|
|
09600SB0317sam003 |
- 37 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| cigarettes, for sale in the course of such
business.
| 2 |
| b. Any person who makes, manufactures or fabricates | 3 |
| cigarettes in this
State for sale, except a person who | 4 |
| makes, manufactures or fabricates
cigarettes for sale to | 5 |
| residents incarcerated in penal institutions or resident
| 6 |
| patients or a State-operated mental health facility.
| 7 |
| c. Any person who makes, manufactures or fabricates | 8 |
| cigarettes outside
this State, which cigarettes are placed | 9 |
| in original packages contained in
sealed transparent | 10 |
| wrappers, for delivery or shipment into this State, and
who | 11 |
| elects to qualify and is accepted by the Department as a | 12 |
| distributor
under Section 7 of this Act.
| 13 |
| "Distributor" does not include any person with respect to a | 14 |
| sale of cigarettes to a purchaser for use or consumption, and | 15 |
| not for resale. | 16 |
| "Distributor" does not include any person who transfers | 17 |
| cigarettes to a not-for-profit
research institution that | 18 |
| conducts tests concerning the
health effects of tobacco | 19 |
| products and who does not offer
the cigarettes for resale.
| 20 |
| "Distributor maintaining a place of business in this | 21 |
| State", or any like
term, means any distributor having or | 22 |
| maintaining within this State,
directly or by a subsidiary, an | 23 |
| office, distribution house, sales house,
warehouse or other | 24 |
| place of business, or any agent operating within this
State | 25 |
| under the authority of the distributor or its subsidiary,
| 26 |
| irrespective of whether such place of business or agent is |
|
|
|
09600SB0317sam003 |
- 38 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| located here
permanently or temporarily, or whether such | 2 |
| distributor or subsidiary is
licensed to transact business | 3 |
| within this State.
| 4 |
| "Business" means any trade, occupation, activity or | 5 |
| enterprise engaged
in or conducted in this State for the | 6 |
| purpose of selling cigarettes.
| 7 |
| "Prior Continuous Compliance Taxpayer" means any person | 8 |
| who is licensed
under this Act and who, having been a licensee | 9 |
| for a continuous period of 5
years, is determined by the | 10 |
| Department not to have been either delinquent
or deficient in | 11 |
| the payment of tax liability during that period or
otherwise in | 12 |
| violation of this Act. Also, any taxpayer who has, as
verified | 13 |
| by the Department, continuously complied with the
condition of | 14 |
| his bond or other security under provisions of this Act of a
| 15 |
| period of 5 consecutive years shall be considered to be a | 16 |
| "prior
continuous compliance taxpayer". In calculating the | 17 |
| consecutive period of
time described herein for qualification | 18 |
| as a "prior continuous compliance
taxpayer", a consecutive | 19 |
| period of time of qualifying compliance
immediately prior to | 20 |
| the effective date of this amendatory Act of 1987 shall be
| 21 |
| credited to any licensee who became licensed on or before the | 22 |
| effective date
of this amendatory Act of 1987.
| 23 |
| "Unstamped package of cigarettes" means a package of | 24 |
| cigarettes that does not bear a tax stamp as required by this | 25 |
| Act, including a package of cigarettes that bears a tax
stamp | 26 |
| of another state or taxing jurisdiction, a package of |
|
|
|
09600SB0317sam003 |
- 39 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| cigarettes that bears a counterfeit tax stamp, and a stamped or | 2 |
| unstamped package of cigarettes that is marked "Not for sale in | 3 |
| the United States". | 4 |
| (Source: P.A. 95-462, eff. 8-27-07.)
| 5 |
| (35 ILCS 135/3-10)
| 6 |
| Sec. 3-10. Cigarette enforcement.
| 7 |
| (a) Prohibitions. It is unlawful for any person:
| 8 |
| (1) to sell or distribute in this State; to acquire, | 9 |
| hold, own, possess,
or
transport, for sale or distribution | 10 |
| in this State; or to import, or cause to be
imported into | 11 |
| this State for sale or distribution in this State:
| 12 |
| (A) any cigarettes the package of which:
| 13 |
| (i) bears any statement, label, stamp, | 14 |
| sticker, or notice
indicating that the | 15 |
| manufacturer did not intend the cigarettes to be
| 16 |
| sold, distributed, or used in the United States, | 17 |
| including but not
limited to labels stating "For | 18 |
| Export Only", "U.S. Tax Exempt",
"For Use Outside | 19 |
| U.S.", or similar wording; or
| 20 |
| (ii) does not comply with:
| 21 |
| (aa) all requirements imposed by or | 22 |
| pursuant to
federal law regarding warnings and | 23 |
| other information on
packages of cigarettes | 24 |
| manufactured, packaged, or imported
for sale, | 25 |
| distribution, or use in the United States, |
|
|
|
09600SB0317sam003 |
- 40 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| including
but not limited to the precise | 2 |
| warning labels specified in the
federal | 3 |
| Cigarette Labeling and Advertising Act, 15 | 4 |
| U.S.C.
1333; and
| 5 |
| (bb) all federal trademark and copyright | 6 |
| laws;
| 7 |
| (B) any cigarettes imported into the United States | 8 |
| in violation of
26 U.S.C. 5754 or any other federal | 9 |
| law, or implementing federal
regulations;
| 10 |
| (C) any cigarettes that such person otherwise | 11 |
| knows or has reason
to know the manufacturer did not | 12 |
| intend to be sold, distributed, or used in
the United | 13 |
| States; or
| 14 |
| (D) any cigarettes for which there has not been | 15 |
| submitted to the
Secretary of the U.S. Department of | 16 |
| Health and Human Services the list or
lists of the | 17 |
| ingredients added to tobacco in the manufacture of the
| 18 |
| cigarettes required by the federal Cigarette Labeling | 19 |
| and Advertising Act,
15 U.S.C. 1335a;
| 20 |
| (2) to alter the package of any cigarettes, prior to | 21 |
| sale or distribution
to
the
ultimate consumer, so as to | 22 |
| remove, conceal, or obscure:
| 23 |
| (A) any statement, label, stamp, sticker, or | 24 |
| notice described in
subdivision (a)(1)(A)(i) of this | 25 |
| Section;
| 26 |
| (B) any health warning that is not specified in, or |
|
|
|
09600SB0317sam003 |
- 41 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| does not conform
with the requirements of, the federal | 2 |
| Cigarette Labeling and Advertising
Act, 15 U.S.C. | 3 |
| 1333; or
| 4 |
| (3) to affix any stamp required pursuant to this Act to | 5 |
| the package of any
cigarettes described in subdivision | 6 |
| (a)(1) of this Section or altered in
violation of
| 7 |
| subdivision (a)(2).
| 8 |
| (b) Documentation. On the first business day of each month, | 9 |
| each person
licensed
to affix the State tax stamp to cigarettes | 10 |
| shall file with the Department, for
all cigarettes
imported | 11 |
| into the United States to which the person has affixed the tax | 12 |
| stamp
in the
preceding month:
| 13 |
| (1) a copy of:
| 14 |
| (A) the permit issued pursuant to the Internal | 15 |
| Revenue Code, 26
U.S.C. 5713, to the person importing | 16 |
| the cigarettes into the United States
allowing the | 17 |
| person to import the cigarettes; and
| 18 |
| (B) the customs form containing, with respect to | 19 |
| the cigarettes, the
internal revenue tax information | 20 |
| required by the U.S. Bureau of Alcohol,
Tobacco and | 21 |
| Firearms;
| 22 |
| (2) a statement, signed by the person under penalty of | 23 |
| perjury, which shall
be treated as confidential by the | 24 |
| Department and exempt from disclosure under
the Freedom of | 25 |
| Information Act, identifying the brand and brand styles of | 26 |
| all such
cigarettes, the quantity of each brand style of |
|
|
|
09600SB0317sam003 |
- 42 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| such cigarettes, the supplier of such
cigarettes, and the | 2 |
| person or persons, if any, to whom such cigarettes have | 3 |
| been
conveyed for resale; and a separate statement, signed | 4 |
| by the individual under
penalty of perjury, which shall not | 5 |
| be treated as confidential or exempt from
disclosure, | 6 |
| separately identifying the brands and brand styles of such
| 7 |
| cigarettes;
and
| 8 |
| (3) a statement, signed by an officer of the | 9 |
| manufacturer or importer
under penalty of perjury, | 10 |
| certifying that the manufacturer or importer has
complied | 11 |
| with:
| 12 |
| (A) the package health warning and ingredient | 13 |
| reporting
requirements of the federal Cigarette | 14 |
| Labeling and Advertising Act, 15
U.S.C. 1333 and 1335a, | 15 |
| with respect to such cigarettes; and
| 16 |
| (B) the provisions of Exhibit T of the Master | 17 |
| Settlement Agreement
entered in
the case of People of | 18 |
| the State of Illinois v. Philip Morris, et al. (Circuit
| 19 |
| Court of Cook County, No. 96-L13146), including a | 20 |
| statement
indicating whether the manufacturer is, or | 21 |
| is not, a participating tobacco
manufacturer within | 22 |
| the meaning of Exhibit T.
| 23 |
| (c) Administrative sanctions.
| 24 |
| (1) Upon finding that a distributor has committed any | 25 |
| of the acts
prohibited by
subsection
(a), knowing or having | 26 |
| reason to know that he or she has done so, or has failed
to |
|
|
|
09600SB0317sam003 |
- 43 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| comply
with any requirement of subsection (b), the | 2 |
| Department may revoke or suspend
the
license or licenses of | 3 |
| any
distributor pursuant to the procedures set forth in | 4 |
| Section 6 and impose on the
distributor a civil penalty in | 5 |
| an amount not to exceed the greater of 500% of
the
retail | 6 |
| value of the cigarettes involved or $5,000.
| 7 |
| (2) Cigarettes that are acquired, held, owned, | 8 |
| possessed, transported in,
imported into, or sold or | 9 |
| distributed in this State in violation of this
Section | 10 |
| shall be deemed contraband under this Act and are subject | 11 |
| to seizure
and forfeiture as provided in this Act, and all | 12 |
| such cigarettes seized and
forfeited shall be destroyed. | 13 |
| Such cigarettes shall be deemed contraband
whether the | 14 |
| violation of this Section is knowing or otherwise.
| 15 |
| (d) Unfair trade practices. A violation of subsection (a) | 16 |
| or subsection
(b) of this Section shall constitute an unlawful | 17 |
| practice as provided in the
Consumer Fraud and Deceptive | 18 |
| Business Practices Act.
| 19 |
| (d-5) Criminal penalties. A person who violates subsection | 20 |
| (a) or subsection (b) of this Section shall be guilty of a | 21 |
| Class 4 felony. | 22 |
| (e) Unfair cigarette sales. For purposes of the Trademark | 23 |
| Registration and
Protection Act and the Counterfeit Trademark | 24 |
| Act, cigarettes imported or
reimported into the United States | 25 |
| for sale or distribution under any trade
name, trade dress, or | 26 |
| trademark that is the same as, or is confusingly similar
to, |
|
|
|
09600SB0317sam003 |
- 44 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| any trade name, trade dress, or trademark used for cigarettes | 2 |
| manufactured
in the United States for sale or distribution in | 3 |
| the United States shall be
presumed to have been purchased | 4 |
| outside of the ordinary channels of trade.
| 5 |
| (f) General provisions.
| 6 |
| (1) This Section shall be enforced by the Department; | 7 |
| provided that, at
the request of the Director of Revenue or | 8 |
| the Director's duly authorized agent,
the State police and | 9 |
| all local police authorities shall enforce the provisions
| 10 |
| of this Section. The Attorney General has concurrent power | 11 |
| with the State's
Attorney of any county to enforce this | 12 |
| Section.
| 13 |
| (2) For the purpose of enforcing this Section, the | 14 |
| Director of Revenue and
any agency to which the Director | 15 |
| has delegated enforcement
responsibility pursuant to | 16 |
| subdivision (f)(1) may request information from any
State | 17 |
| or local agency and may share information with and request | 18 |
| information
from any federal agency and any agency of any | 19 |
| other state or any local agency
of any other state.
| 20 |
| (3) In addition to any other remedy provided by law, | 21 |
| including
enforcement as provided in subdivision (a)(1), | 22 |
| any person may bring an action
for appropriate injunctive | 23 |
| or other equitable relief for a violation of this
Section; | 24 |
| actual damages, if any, sustained by reason of the | 25 |
| violation; and, as
determined by the court, interest on the | 26 |
| damages from the date of the
complaint, taxable costs, and |
|
|
|
09600SB0317sam003 |
- 45 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| reasonable attorney's fees. If the trier of fact
finds that | 2 |
| the violation is flagrant, it may increase recovery to an | 3 |
| amount not
in excess of 3 times the actual damages | 4 |
| sustained by reason of the violation.
| 5 |
| (g) Definitions. As used in this Section:
| 6 |
| "Importer" means that term as defined in 26 U.S.C. 5702(1).
| 7 |
| "Package" means that term as defined in 15 U.S.C. 1332(4).
| 8 |
| (h) Applicability.
| 9 |
| (1) This Section does not apply to:
| 10 |
| (A) cigarettes allowed to be imported or brought | 11 |
| into the United
States for personal use; and
| 12 |
| (B) cigarettes sold or intended to be sold as | 13 |
| duty-free merchandise
by a duty-free sales enterprise | 14 |
| in accordance with the provisions of 19
U.S.C. 1555(b) | 15 |
| and any implementing regulations; except that this | 16 |
| Section
shall apply to any such cigarettes that are | 17 |
| brought back into the customs
territory for resale | 18 |
| within the customs territory.
| 19 |
| (2) The penalties provided in this Section are in | 20 |
| addition to any other
penalties imposed under other | 21 |
| provision of law.
| 22 |
| (Source: P.A. 91-810, eff. 6-13-00.)
| 23 |
| (35 ILCS 135/12) (from Ch. 120, par. 453.42)
| 24 |
| Sec. 12. Declaration of possession of cigarettes on which | 25 |
| tax not paid.
|
|
|
|
09600SB0317sam003 |
- 46 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| (a) When cigarettes are acquired for use in this State by a | 2 |
| person
(including a distributor as well as any other person) , | 3 |
| who did not pay the
tax herein imposed to a distributor, the | 4 |
| person, within 30 days after
acquiring the cigarettes, shall | 5 |
| file with the Department a return
declaring the possession of | 6 |
| the cigarettes and shall transmit with
the
return to the | 7 |
| Department the tax imposed by this Act.
| 8 |
| (b) On receipt of the return and payment of the tax as | 9 |
| required by
paragraph (a), the Department may furnish the | 10 |
| person with a suitable tax stamp
to be
affixed to the package | 11 |
| of cigarettes upon which the tax has been paid
if the | 12 |
| Department determines that the cigarettes still exist.
| 13 |
| (c) The return referred to in paragraph
(a) shall
contain | 14 |
| the name and address of the person possessing the cigarettes
| 15 |
| involved, the location of the cigarettes and the quantity, | 16 |
| brand
name,
place, and date of the acquisition of the | 17 |
| cigarettes.
| 18 |
| (d) The provisions of the Uniform Penalty and Interest Act | 19 |
| (35 ILCS 735/) do not apply to this Section. | 20 |
| (Source: P.A. 92-322, eff. 1-1-02.)
| 21 |
| (35 ILCS 135/25b)
| 22 |
| Sec. 25b.
Possession of cigarette packages by persons not | 23 |
| licensed as a distributor or a retailer; penalty. Any person | 24 |
| other than a person licensed as a distributor or a retailer | 25 |
| under the Cigarette Tax Act in possession of more than 10 but |
|
|
|
09600SB0317sam003 |
- 47 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| fewer than 101 original packages of unstamped packages of | 2 |
| cigarettes and who has not paid the taxes imposed by this Act | 3 |
| within 30 days of acquiring the cigarettes, shall be liable to | 4 |
| pay to the Department for deposit into the Tax Compliance and | 5 |
| Administration Fund, a penalty of $15 for possession of each | 6 |
| package of cigarettes. Any person other than a person licensed | 7 |
| as a distributor or a retailer under the Cigarette Tax Act in | 8 |
| possession of more than 100 original packages of unstamped | 9 |
| packages of cigarettes and who has not paid the taxes imposed | 10 |
| by this Act within 30 days of acquiring the cigarettes, shall | 11 |
| be liable to pay to the Department for deposit into the Tax | 12 |
| Compliance and Administration Fund, a penalty of $25 for | 13 |
| possession of each package of cigarettes. Any person who | 14 |
| purchases and possesses a total of 10 or fewer original | 15 |
| packages of unstamped cigarettes per month shall be exempt from | 16 |
| the penalties of this Section. The provisions of the Uniform | 17 |
| Penalty and Interest Act (35 ILCS 735/) do not apply to this | 18 |
| Section. Possession of
not less than 10 and not
more than
100 | 19 |
| original packages not tax stamped or
improperly tax stamped; | 20 |
| penalty. With the exception of licensed distributors,
anyone | 21 |
| possessing
not less than 10
and not more than 100 packages of
| 22 |
| cigarettes contained in original packages that are not tax
| 23 |
| stamped as required by this Act, or that are improperly tax | 24 |
| stamped, is
liable to pay to the Department, for deposit into | 25 |
| the Tax Compliance and
Administration Fund, a penalty of $10
| 26 |
| for each such package of
cigarettes, unless reasonable cause |
|
|
|
09600SB0317sam003 |
- 48 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| can be established by the person upon whom
the penalty is | 2 |
| imposed. Reasonable cause shall be determined in each situation
| 3 |
| in accordance with rules adopted by the Department.
| 4 |
| (Source: P.A. 92-322, eff. 1-1-02.)
| 5 |
| (35 ILCS 135/30) (from Ch. 120, par. 453.60)
| 6 |
| Sec. 30. Punishment for possession, offer for sale, or sale | 7 |
| of unstamped packages of cigarettes, other than in a retail or | 8 |
| resale business. Punishment for sale or possession of unstamped | 9 |
| packages. | 10 |
| (a) Any person other than a person licensed as a | 11 |
| distributor, a transporter as defined in Section 9c of the | 12 |
| Cigarette Tax Act, or a retailer under the Cigarette Tax Act, | 13 |
| who has in his possession, offers for sale or sells, fewer than | 14 |
| 101 original packages of unstamped packages of cigarettes, | 15 |
| shall be guilty of a Class A misdemeanor for a first offense | 16 |
| and a Class 4 felony for each subsequent offense. | 17 |
| (b) Any person other than a person licensed as a | 18 |
| distributor, a transporter as defined in Section 9c of the | 19 |
| Cigarette Tax Act, or a retailer under the Cigarette Tax Act, | 20 |
| who has in his possession, offers for sale or sells, more than | 21 |
| 100 but fewer than 1001 original packages of unstamped packages | 22 |
| of cigarettes, shall be guilty of a Class 4 felony. | 23 |
| (c) Any person other than a person licensed as a | 24 |
| distributor, a transporter as defined in Section 9c of the | 25 |
| Cigarette Tax Act, or a retailer under the Cigarette Tax Act, |
|
|
|
09600SB0317sam003 |
- 49 - |
LRB096 09151 ASK 22363 a |
|
| 1 |
| who has in his possession, offers for sale or sells, more than | 2 |
| 1000 original packages of unstamped packages of cigarettes, | 3 |
| shall be guilty of a Class 3 felony. | 4 |
| (d) Any person licensed as a distributor who sells an | 5 |
| original package of an unstamped package of cigarettes, except | 6 |
| when the sale is made under such circumstances that the tax | 7 |
| imposed by this Act may not legally be levied because of the | 8 |
| Constitution or laws of the United States, shall be guilty of a | 9 |
| Class 3 felony. | 10 |
| Any
person other than a licensed distributor who sells,
offers | 11 |
| for sale, or has in his possession with intent to sell or offer
| 12 |
| for sale, more than 100 original packages, not tax
stamped or | 13 |
| tax imprinted
underneath the sealed transparent wrapper of such | 14 |
| original package in
accordance with this Act, shall be guilty | 15 |
| of a Class 4 felony.
| 16 |
| Any person other than a licensed distributor who sells, | 17 |
| offers for sale, or
has in his possession with intent to sell | 18 |
| or offer for sale, 100 or fewer
original packages, not tax | 19 |
| stamped or tax imprinted underneath the sealed
transparent | 20 |
| wrapper of the original package in accordance with this Act, is
| 21 |
| guilty of a Class A misdemeanor for the first offense and a | 22 |
| Class 4 felony
for each subsequent offense.
| 23 |
| Any distributor who sells an original package of | 24 |
| cigarettes, not tax
stamped or tax imprinted underneath the | 25 |
| sealed transparent wrapper of
such original package in | 26 |
| accordance with this Act, except when the sale
is made under |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| such circumstances that the tax imposed by this Act may
not | 2 |
| legally be levied because of the Constitution or laws of the | 3 |
| United
States, shall be guilty of a Class 3 felony.
| 4 |
| (Source: P.A. 92-322, eff. 1-1-02.)
| 5 |
| (35 ILCS 135/25a rep.)
| 6 |
| Section 925. The Cigarette Use Tax Act is amended by | 7 |
| repealing Section 25a. | 8 |
| Section 930. The Tobacco Products Tax Act of 1995 is | 9 |
| amended by changing Sections 10-5, 10-20, 10-25, 10-30, 10-35, | 10 |
| and 10-50 and by adding Sections 10-21, 10-22, 10-36, and 10-53 | 11 |
| as follows:
| 12 |
| (35 ILCS 143/10-5)
| 13 |
| Sec. 10-5. Definitions. For purposes of this Act:
| 14 |
| "Business" means any trade, occupation, activity, or | 15 |
| enterprise engaged
in, at any location whatsoever, for the | 16 |
| purpose of selling tobacco products.
| 17 |
| "Cigarette" has the meaning ascribed to the term in Section | 18 |
| 1 of the
Cigarette Tax Act.
| 19 |
| "Correctional Industries program" means a program run by a | 20 |
| State penal
institution in which residents of the penal | 21 |
| institution produce tobacco
products for sale to persons | 22 |
| incarcerated in penal institutions or resident
patients of a | 23 |
| State operated mental health facility.
|
|
|
|
09600SB0317sam003 |
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|
| 1 |
| "Department" means the Illinois Department of Revenue.
| 2 |
| "Distributor" means any of the following:
| 3 |
| (1) Any manufacturer or wholesaler in this State | 4 |
| engaged in the business
of selling tobacco products who | 5 |
| sells, exchanges, or distributes tobacco
products to | 6 |
| retailers or consumers in this State.
| 7 |
| (2) Any manufacturer or wholesaler engaged
in
the | 8 |
| business of selling tobacco products from without this | 9 |
| State who sells,
exchanges, distributes,
ships, or | 10 |
| transports tobacco products to retailers or consumers | 11 |
| located in
this State,
who (i) so long as that manufacturer | 12 |
| or wholesaler has or maintains within this State,
directly | 13 |
| or by subsidiary, an office, sales house, or other place of | 14 |
| business,
or any agent or other representative operating | 15 |
| within this State under the
authority of the person or | 16 |
| subsidiary, irrespective of whether the place of
business | 17 |
| or agent or other representative is located here | 18 |
| permanently or
temporarily , or (ii) elects to apply for a | 19 |
| distributor's license and is approved by the Department as | 20 |
| a licensed distributor .
| 21 |
| (3) Any retailer who receives tobacco products on which | 22 |
| the tax has not
been or
will not be paid by another | 23 |
| distributor.
| 24 |
| "Distributor" does not include any person with respect to a | 25 |
| sale of tobacco products to a purchaser for use or consumption, | 26 |
| and not for resale. |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| "Distributor" does not include any person, wherever | 2 |
| resident or located, who
makes, manufactures, or fabricates | 3 |
| tobacco products as part of a Correctional
Industries program | 4 |
| for sale to residents incarcerated in penal institutions or
| 5 |
| resident patients of a State operated mental health facility.
| 6 |
| "Manufacturer" means any person, wherever resident or | 7 |
| located, who
manufactures and sells tobacco products, except a | 8 |
| person who makes,
manufactures, or fabricates tobacco products | 9 |
| as a part of a Correctional
Industries program for sale to | 10 |
| persons incarcerated in penal institutions or
resident | 11 |
| patients of a State operated mental health facility.
| 12 |
| "Person" means any natural individual, firm, partnership, | 13 |
| association, joint
stock company, joint venture, limited | 14 |
| liability company, or public or private
corporation, however | 15 |
| formed, or a receiver, executor, administrator, trustee,
| 16 |
| conservator, or other representative appointed by order of any | 17 |
| court.
| 18 |
| "Place of business" means and includes any place where | 19 |
| tobacco products
are sold or where tobacco products are | 20 |
| manufactured, stored, or kept for
the purpose of sale or | 21 |
| consumption, including any vessel, vehicle, airplane,
train, | 22 |
| or vending machine.
| 23 |
| "Retailer" means any person in this State engaged in the | 24 |
| business of selling
tobacco products to consumers in this | 25 |
| State, regardless of quantity or number
of sales.
| 26 |
| "Sale" means any transfer, exchange, or barter in any |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| manner or by any means
whatsoever for a consideration and | 2 |
| includes all sales made by
persons.
| 3 |
| "Tobacco products" means any cigars; cheroots; stogies; | 4 |
| periques; granulated,
plug cut, crimp cut, ready rubbed, and | 5 |
| other smoking tobacco; snuff or snuff
flour; cavendish; plug | 6 |
| and twist tobacco; fine-cut and other chewing tobaccos;
shorts; | 7 |
| refuse scraps, clippings, cuttings, and sweeping of tobacco; | 8 |
| and
other kinds and forms of tobacco, prepared in such manner | 9 |
| as to be suitable for
chewing or smoking in a pipe or | 10 |
| otherwise, or both for chewing and smoking; but
does not | 11 |
| include cigarettes or tobacco purchased for the manufacture of
| 12 |
| cigarettes by cigarette distributors and manufacturers defined | 13 |
| in the
Cigarette Tax Act and persons who make, manufacture, or | 14 |
| fabricate
cigarettes as a part of a Correctional Industries | 15 |
| program for sale to
residents incarcerated in penal | 16 |
| institutions or resident patients of a
State operated mental | 17 |
| health facility.
| 18 |
| "Wholesale price" means the established list price for | 19 |
| which a manufacturer
sells tobacco products to a distributor, | 20 |
| before the allowance of any discount,
trade allowance, rebate, | 21 |
| or other reduction.
In the absence of such an established list | 22 |
| price, the manufacturer's invoice
price at which the | 23 |
| manufacturer sells the tobacco product to unaffiliated
| 24 |
| distributors, before any discounts, trade allowances, rebates, | 25 |
| or other
reductions, shall be presumed to be the wholesale | 26 |
| price.
|
|
|
|
09600SB0317sam003 |
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|
| 1 |
| "Wholesaler" means any person, wherever resident or | 2 |
| located, engaged in the
business of selling tobacco products to | 3 |
| others for the purpose of resale.
| 4 |
| (Source: P.A. 92-231, eff. 8-2-01.)
| 5 |
| (35 ILCS 143/10-20)
| 6 |
| Sec. 10-20. Distributor's Licenses. It shall be unlawful | 7 |
| for any person to engage in
business as a distributor of | 8 |
| tobacco products within the
meaning
of this Act without first | 9 |
| having obtained a license to do so from the
Department. | 10 |
| Application for that license shall be made to the Department in | 11 |
| a
form prescribed and furnished by the Department. Each | 12 |
| applicant for a license
shall furnish to the Department on a | 13 |
| form, signed and verified by the
applicant, the following | 14 |
| information:
| 15 |
| (1) The name of the applicant.
| 16 |
| (2) The address of the location at which the applicant | 17 |
| proposes to engage
in business as a distributor of tobacco | 18 |
| products.
| 19 |
| (3) Other information the Department may reasonably | 20 |
| require.
| 21 |
| Except as otherwise provided in this Section, every | 22 |
| applicant who is required
to procure a distributor's license | 23 |
| shall file with his or her application a
joint and several | 24 |
| bond. The bond shall be executed to the Department of
Revenue, | 25 |
| with good and sufficient surety or sureties residing or |
|
|
|
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|
| 1 |
| licensed to do
business within the State of Illinois, | 2 |
| conditioned upon the true and faithful
compliance by the | 3 |
| licensee with all of the provisions of this Act. The
Department | 4 |
| shall fix the amount of the bond for each applicant, taking | 5 |
| into
consideration the amount of money expected to become due | 6 |
| from the applicant
under this Act. The amount of bond required | 7 |
| by the Department shall be an
amount that, in its opinion, will | 8 |
| protect the State of Illinois against failure
to pay the amount | 9 |
| that may become due from the applicant under this Act, but
the | 10 |
| amount of the security required by the Department shall not | 11 |
| exceed 3 times
the amount of the applicant's average monthly | 12 |
| tax liability, or $50,000,
whichever amount is lower. The bond, | 13 |
| a reissue, or a substitute shall be kept
in full force and | 14 |
| effect during the entire period covered by the license. A
| 15 |
| separate application for license shall be made, and bond filed,
| 16 |
| for each place of business at which a person who is required to | 17 |
| procure a
distributor's license proposes to engage in business | 18 |
| as a distributor under this Act.
| 19 |
| The Department, upon receipt of an application and bond in | 20 |
| proper form,
shall issue to the applicant a license, in a form | 21 |
| prescribed by the
Department, which shall permit the applicant | 22 |
| to whom it is issued
to engage in business as a distributor at | 23 |
| the place shown on his or her
application. The license shall be | 24 |
| issued by the Department without charge
or cost to the | 25 |
| applicant. No license issued under this Act is
transferable or | 26 |
| assignable. The license shall be conspicuously displayed
in the |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| place of business conducted by the licensee under the
license.
| 2 |
| The bonding requirement in this Section does not apply to | 3 |
| an applicant
for a distributor's license who is already bonded | 4 |
| under the Cigarette
Tax Act or the Cigarette Use Tax Act.
| 5 |
| Licenses issued by the Department under this Act shall be valid | 6 |
| for a period
not to exceed one year after issuance unless | 7 |
| sooner revoked, canceled, or
suspended as provided in this Act.
| 8 |
| No license shall be issued to any person who is in default | 9 |
| to the State
of Illinois for moneys due under this Act or any | 10 |
| other tax Act administered
by the Department.
| 11 |
| The Department may, in its discretion, upon application, | 12 |
| authorize the
payment of the tax imposed under Section 10-10 by | 13 |
| any distributor or
manufacturer not otherwise subject to the | 14 |
| tax imposed under this Act who, to
the satisfaction of the | 15 |
| Department, furnishes adequate security to ensure
payment of | 16 |
| the tax. The distributor or manufacturer shall be issued, | 17 |
| without
charge, a license to remit the tax. When so authorized, | 18 |
| it shall be the duty
of the distributor or manufacturer to | 19 |
| remit the tax imposed upon the wholesale
price of tobacco | 20 |
| products sold or otherwise disposed of to retailers or
| 21 |
| consumers located in this State, in the
same manner and subject | 22 |
| to the same requirements as any other
distributor or
| 23 |
| manufacturer licensed under this Act.
| 24 |
| The Department may revoke, suspend, or cancel the license | 25 |
| of a distributor
of roll-your-own tobacco (as that term is used | 26 |
| in Section 10 of the Tobacco
Product
Manufacturers' Escrow Act) |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| under this Act if the tobacco product manufacturer,
as
defined | 2 |
| in Section 10 of the Tobacco Product Manufacturers' Escrow Act, | 3 |
| that
made or sold the roll-your-own tobacco has failed to | 4 |
| become a participating
manufacturer, as defined in subdivision | 5 |
| (a)(1) of Section 15 of the Tobacco
Product Manufacturers' | 6 |
| Escrow Act, or has failed to create a qualified escrow
fund for | 7 |
| any roll-your-own tobacco manufactured by the tobacco product
| 8 |
| manufacturer
and sold in this State or otherwise failed to | 9 |
| bring itself into compliance with
subdivision (a)(2) of Section | 10 |
| 15
of the Tobacco Product Manufacturers' Escrow Act.
| 11 |
| Any person aggrieved by any decision of the Department | 12 |
| under this Section
may, within 20 days after notice of that | 13 |
| decision, protest and request a
hearing, whereupon the | 14 |
| Department must give notice to that person of the time
and | 15 |
| place fixed for the hearing and must hold a hearing in | 16 |
| conformity with
the provisions of this Act and then issue its | 17 |
| final administrative decision in
the matter to that person. In | 18 |
| the absence of such a protest within 20 days,
the Department's | 19 |
| decision becomes final without any further determination
being | 20 |
| made or notice given.
| 21 |
| (Source: P.A. 92-231, eff. 8-2-01; 92-737, eff. 7-25-02.)
| 22 |
| (35 ILCS 143/10-21 new) | 23 |
| Sec. 10-21. Retailer's License. | 24 |
| (a) Commencing January 1, 2010, no person may engage in | 25 |
| business as a retailer of tobacco products in this State |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| without first having obtained a retailer's license from the | 2 |
| Department. Application for a license shall be made to the | 3 |
| Department in form as furnished and prescribed by the | 4 |
| Department. Each applicant for a license under this Section | 5 |
| shall furnish to the Department on the form signed and verified | 6 |
| by the applicant the following information: | 7 |
| (1) the name and address of the applicant; | 8 |
| (2) the address of the location at which the applicant | 9 |
| proposes to engage in business as a retailer of tobacco | 10 |
| products in this State; and | 11 |
| (3) such other additional information as the | 12 |
| Department may lawfully require by its rules and | 13 |
| regulations. | 14 |
| (b) The annual license fee payable to the Department for | 15 |
| each retailer's license shall be $250. The fee will be placed | 16 |
| into the Tax Compliance and Administration Fund and used | 17 |
| towards the cost of retail inspections. Each applicant for a | 18 |
| license shall pay that fee to the Department at the time of | 19 |
| submitting the application for a license to the Department. | 20 |
| (c) The Department may, in its discretion, require an | 21 |
| applicant who is required to procure a retailer's license to | 22 |
| file with the application a joint and several bond. If | 23 |
| required, such bond shall be executed to the Department of | 24 |
| Revenue, with good and sufficient surety or sureties residing | 25 |
| or licensed to do business within the State of Illinois, in an | 26 |
| amount of not less than $2,500, conditioned upon the true and |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| faithful compliance by the licensee with all of the provisions | 2 |
| of this Act. If required, such bond, or a reissue thereof, or a | 3 |
| substitute therefor, shall be kept in effect during the entire | 4 |
| period covered by the license. A separate application for | 5 |
| license shall be made, a separate annual license fee paid, and, | 6 |
| if required, a separate bond filed, for each place of business | 7 |
| at which a person who is required to procure a retailer's | 8 |
| license under this Section proposes to engage in business as a | 9 |
| retailer in Illinois under this Act. | 10 |
| The following are ineligible to receive a retailer's | 11 |
| license under this Act: | 12 |
| (1) a person who is not of good character and | 13 |
| reputation in the community in which he resides; | 14 |
| (2) a person who has been convicted of a felony under | 15 |
| any federal or State law, if the Department, after | 16 |
| investigation and a hearing, if requested by the applicant, | 17 |
| determines that the person has not been sufficiently | 18 |
| rehabilitated to warrant the public trust; | 19 |
| (3) a corporation, if any officer, manager, or director | 20 |
| thereof, or any stockholder or stockholders owning in the | 21 |
| aggregate more than 5% of the stock of the corporation, | 22 |
| would not be eligible to receive a license under this Act | 23 |
| for any reason; | 24 |
| (4) a person who possesses a distributor's license | 25 |
| under Section 10-20 of this Act. | 26 |
| (d) The Department, upon receipt of an application, license |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| fee, and bond in proper form from a person who is eligible to | 2 |
| receive a retailer's license under this Act, shall issue to the | 3 |
| applicant a license in form as prescribed by the Department, | 4 |
| which license shall permit the applicant to engage in business | 5 |
| as a retailer under this Act at the place shown in the | 6 |
| application. All licenses issued by the Department under this | 7 |
| Section shall be valid for not to exceed one year after | 8 |
| issuance unless sooner revoked, canceled or suspended as | 9 |
| provided in this Act. No license issued under this Section is | 10 |
| transferable or assignable. The license shall be conspicuously | 11 |
| displayed in the place of business conducted by the licensee in | 12 |
| Illinois under the license. The Department shall not issue a | 13 |
| license to a retailer unless the retailer is also validly | 14 |
| registered under the Retailers' Occupation Tax Act. A person | 15 |
| who obtains a license as a retailer and then ceases to do | 16 |
| business as specified in the license, or who does not commence | 17 |
| business, or who obtains a distributor's license, or whose | 18 |
| license is suspended or revoked, shall immediately surrender | 19 |
| the license to the Department. A retailer as defined under the | 20 |
| Cigarette Tax Act need not obtain an additional license under | 21 |
| this Act, but shall be deemed to be sufficiently licensed by | 22 |
| virtue of his being properly licensed as a retailer under | 23 |
| Section 4d of the Cigarette Tax Act. | 24 |
| (e) Any person aggrieved by any decision of the Department | 25 |
| under this subsection may, within 20 days after notice of the | 26 |
| decision, protest and request a hearing. Upon receiving a |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| request for a hearing, the Department shall give notice to the | 2 |
| person requesting the hearing of the time and place fixed for | 3 |
| the hearing and shall hold a hearing in conformity with the | 4 |
| provisions of this Act and then issue its final administrative | 5 |
| decision in the matter to that person. In the absence of a | 6 |
| protest and request for a hearing within 20 days, the | 7 |
| Department's decision shall become final without any further | 8 |
| determination being made or notice given. | 9 |
| (35 ILCS 143/10-22 new) | 10 |
| Sec. 10-22. Purchases of tobacco products by licensed | 11 |
| retailers. A person who possesses a retailer's license under | 12 |
| Section 10-21 of this Act shall obtain tobacco products for | 13 |
| sale only from a licensed distributor.
| 14 |
| (35 ILCS 143/10-25)
| 15 |
| Sec. 10-25. License actions. | 16 |
| (a) The Department may, after notice and a hearing,
revoke, | 17 |
| cancel, or suspend the license of any distributor or retailer | 18 |
| who violates any of
the provisions of this Act. The notice | 19 |
| shall specify the alleged violation or
violations upon which | 20 |
| the revocation, cancellation, or suspension proceeding is
| 21 |
| based.
| 22 |
| (b) The Department may revoke, cancel, or suspend the | 23 |
| license of any
distributor for a violation of the Tobacco | 24 |
| Product Manufacturers' Escrow
Enforcement Act as provided in |
|
|
|
09600SB0317sam003 |
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|
| 1 |
| Section 20 of that Act.
| 2 |
| (c) The Department shall suspend for 7 days the license of | 3 |
| a
retailer for a first violation of the Sale of Tobacco to | 4 |
| Minors Act, as provided in Section 3 of that Act. | 5 |
| The Department shall suspend for 30 days the license of a
| 6 |
| retailer for a second violation of the Sale of Tobacco to | 7 |
| Minors Act, as provided in Section 3 of that Act. | 8 |
| The Department shall revoke the license of a retailer for a | 9 |
| third or subsequent violation of the Sale of Tobacco to Minors | 10 |
| Act, as provided in Section 3 of that Act. | 11 |
| (d) The Department may, by application to any circuit | 12 |
| court, obtain an injunction
restraining any person who engages | 13 |
| in business as a distributor of tobacco
products without a | 14 |
| license (either because his or her license has been revoked,
| 15 |
| canceled, or suspended or because of a failure to obtain a | 16 |
| license in the first
instance) from engaging in that business | 17 |
| until that person, as if that person
were a new applicant for a | 18 |
| license, complies with all of the conditions,
restrictions, and | 19 |
| requirements of Section 10-20 (for a distributor's license) or | 20 |
| Section 10-21 (for a retailer's license) of this Act and | 21 |
| qualifies for
and obtains a license. Refusal or neglect to obey | 22 |
| the order of the court may
result in punishment for contempt.
| 23 |
| (Source: P.A. 92-737, eff. 7-25-02.)
| 24 |
| (35 ILCS 143/10-30)
| 25 |
| Sec. 10-30. Returns. |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| (a) Every distributor shall, on or before the 15th day of
each | 2 |
| month, file a return with the Department covering the preceding | 3 |
| calendar
month. The return shall disclose the wholesale price | 4 |
| for tobacco products sold
or otherwise disposed of and other | 5 |
| information that the Department may
reasonably require. The | 6 |
| return shall be filed upon a form prescribed and
furnished by | 7 |
| the Department.
| 8 |
| At the time when any return of any distributor is due to be | 9 |
| filed with
the Department, the distributor shall also remit to | 10 |
| the Department the
tax liability that the distributor has | 11 |
| incurred for transactions
occurring in the preceding calendar | 12 |
| month.
| 13 |
| (b) A retailer who possesses, acquires, or purchases | 14 |
| tobacco products on which the tax imposed by this Act has not | 15 |
| been paid shall file a return and pay the tax in a format and at | 16 |
| a time prescribed by the Department by rule. | 17 |
| (Source: P.A. 89-21, eff. 6-6-95.)
| 18 |
| (35 ILCS 143/10-35)
| 19 |
| Sec. 10-35. Record keeping. | 20 |
| (a) Every distributor, as defined in Section 10-5,
shall | 21 |
| keep complete and accurate records of tobacco products held, | 22 |
| purchased,
manufactured, brought in or caused to be brought in | 23 |
| from without the State, and
tobacco products sold, or otherwise | 24 |
| disposed of, and shall preserve and keep
all invoices, bills of | 25 |
| lading, sales records, and copies of bills
of sale, the |
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| wholesale price for tobacco products sold or otherwise disposed
| 2 |
| of, an inventory of tobacco products prepared as of December 31 | 3 |
| of each year or
as of the last day of the distributor's fiscal | 4 |
| year if he or she files federal
income tax returns on the basis | 5 |
| of a fiscal year, and other pertinent papers
and documents | 6 |
| relating to the manufacture, purchase, sale, or disposition of
| 7 |
| tobacco products. Every sales invoice issued by a licensed | 8 |
| distributor to a retailer in this State shall contain the | 9 |
| distributor's Tobacco Products License number. | 10 |
| (b) Every retailer, as defined in Section 10-5, shall keep | 11 |
| within Illinois, at his or her licensed address, complete and | 12 |
| accurate records of tobacco products held, purchased, sold, or | 13 |
| otherwise disposed of, and shall preserve and keep all | 14 |
| invoices, bills of lading, sales records, copies of bills of | 15 |
| sale, returns, and other pertinent papers and documents | 16 |
| relating to the purchase, sale, or disposition of tobacco | 17 |
| products. | 18 |
| (c) Books, records, papers, and documents that are
required | 19 |
| by this Act to be kept shall, at all times during the usual | 20 |
| business
hours of the day, be subject to inspection by the | 21 |
| Department or its duly
authorized agents and employees. The | 22 |
| books, records, papers, and documents for
any period with | 23 |
| respect to which the Department is authorized to issue a notice
| 24 |
| of tax liability shall be preserved until the expiration of | 25 |
| that period.
| 26 |
| (Source: P.A. 89-21, eff. 6-6-95.)
|
|
|
|
09600SB0317sam003 |
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LRB096 09151 ASK 22363 a |
|
| 1 |
| (35 ILCS 143/10-36 new) | 2 |
| Sec. 10-36. Proof of payment of tax imposed by this Act. | 3 |
| Every licensed distributor of tobacco products in this State is | 4 |
| required to show proof of the tax having been paid as required | 5 |
| by this Act by displaying his or her Tobacco Products License | 6 |
| number on every sales invoice issued to a retailer in this | 7 |
| State. No retailer shall possess tobacco products without | 8 |
| either (i) a proper invoice indicating that the tobacco | 9 |
| products tax was paid by a distributor for the tobacco products | 10 |
| in the retailer's possession or (ii) proof that the tax was | 11 |
| paid by the retailer if it has purchased tobacco products on | 12 |
| which tax has not been paid as required by this Act. Failure to | 13 |
| comply with the provisions of this Section may be grounds for | 14 |
| revocation of a distributor's or retailer's license in | 15 |
| accordance with Section 10-25 of this Act or Section 6 of the | 16 |
| Cigarette Tax Act. In addition, the Department may impose a | 17 |
| civil penalty not to exceed $1000 for each violation, which | 18 |
| shall be deposited into the Tax Compliance and Administration | 19 |
| Fund.
| 20 |
| (35 ILCS 143/10-50)
| 21 |
| Sec. 10-50. Violations and penalties. | 22 |
| (a) When the amount due is under $300,
any distributor who | 23 |
| fails to file a return, willfully wilfully fails or refuses to
| 24 |
| make any payment to the Department of the tax imposed by this |
|
|
|
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|
| 1 |
| Act, or files
a fraudulent return, or any officer or agent of a | 2 |
| corporation engaged in the
business of distributing tobacco | 3 |
| products to retailers and consumers
located in this State who | 4 |
| signs a fraudulent
return filed on behalf of the corporation, | 5 |
| or any accountant or other agent
who knowingly enters false | 6 |
| information on the return of any taxpayer under this
Act is | 7 |
| guilty of a Class 4 felony.
| 8 |
| (b) Any person who violates any provision of Section 10-20 , | 9 |
| 10-21, or 10-22 of this Act, fails
to keep books and records as | 10 |
| required under this Act, or willfully wilfully violates a
rule | 11 |
| or regulation of the Department for the administration and | 12 |
| enforcement of
this Act is guilty of a Class 4 felony. A person | 13 |
| commits a separate offense on
each day that he or she engages | 14 |
| in business in violation of Section 10-20 , 10-21 or 10-22 of
| 15 |
| this Act.
| 16 |
| (c) When the amount due is under $300, any person who | 17 |
| accepts money that is due
to the Department under this Act from | 18 |
| a taxpayer for the purpose of acting as
the taxpayer's agent to | 19 |
| make the payment to the Department, but who fails to
remit the | 20 |
| payment to the Department when due, is guilty of a Class 4 | 21 |
| felony.
| 22 |
| (d) When the amount due is $300 or more, any distributor | 23 |
| who files,
or causes to be filed, a fraudulent return, or any | 24 |
| officer or agent of a
corporation engaged in the business of | 25 |
| distributing tobacco products
to retailers and consumers | 26 |
| located in this State who files or causes to be
filed or signs |
|
|
|
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|
| 1 |
| or causes
to be signed a fraudulent return filed on behalf of | 2 |
| the corporation, or
any accountant or other agent who knowingly | 3 |
| enters false information on
the return of any taxpayer under | 4 |
| this Act is guilty of a Class 3 felony.
| 5 |
| (e) When the amount due is $300 or more, any person engaged | 6 |
| in the business
of distributing tobacco products to retailers | 7 |
| and consumers located in this
State who fails to file a return, | 8 |
| willfully
wilfully fails or refuses to make any payment to the | 9 |
| Department of the tax
imposed by this Act, or accepts money | 10 |
| that is due to the Department under
this Act from a taxpayer | 11 |
| for the purpose of acting as the taxpayer's agent to
make | 12 |
| payment to the Department but fails to remit such payment to | 13 |
| the
Department when due is guilty of a Class 3 felony.
| 14 |
| (f) When the amount due is under $300, any retailer who | 15 |
| fails to file a return, willfully fails or refuses to make any | 16 |
| payment to the Department of the tax imposed by this Act, or | 17 |
| files a fraudulent return, or any officer or agent of a | 18 |
| corporation engaged in the retail business of selling tobacco | 19 |
| products to purchasers of tobacco products for use and | 20 |
| consumption located in this State who signs a fraudulent return | 21 |
| filed on behalf of the corporation, or any accountant or other | 22 |
| agent who knowingly enters false information on the return of | 23 |
| any taxpayer under this Act is guilty of a Class 4 felony. | 24 |
| (g) When the amount due is $300 or more, any retailer who | 25 |
| fails to file a return, willfully fails or refuses to make any | 26 |
| payment to the Department of the tax imposed by this Act, or |
|
|
|
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LRB096 09151 ASK 22363 a |
|
| 1 |
| files a fraudulent return, or any officer or agent of a | 2 |
| corporation engaged in the retail business of selling tobacco | 3 |
| products to purchasers of tobacco products for use and | 4 |
| consumption located in this State who signs a fraudulent return | 5 |
| filed on behalf of the corporation, or any accountant or other | 6 |
| agent who knowingly enters false information on the return of | 7 |
| any taxpayer under this Act is guilty of a Class 3 felony. | 8 |
| (h) Any person whose principal place of business is in this | 9 |
| State and
who is charged with a violation under this Section | 10 |
| shall be
tried in the county where his or her principal place | 11 |
| of business is
located unless he or she asserts a right to be | 12 |
| tried in another venue.
If the taxpayer does not have his or | 13 |
| her principal place of business
in this State, however, the | 14 |
| hearing must be held in Sangamon County unless
the taxpayer | 15 |
| asserts a right to be tried in another venue.
| 16 |
| (i) Any taxpayer or agent of a taxpayer who with the intent | 17 |
| to defraud
purports to make a payment due to the Department by | 18 |
| issuing or delivering a
check or other order upon a real or | 19 |
| fictitious depository for the payment
of money, knowing that it | 20 |
| will not be paid by the depository, is
guilty of a deceptive | 21 |
| practice in violation of Section 17-1 of the Criminal
Code of | 22 |
| 1961.
| 23 |
| (j) A prosecution for a violation described in this Section | 24 |
| may be commenced
within 3 years after the commission of the act | 25 |
| constituting the violation.
| 26 |
| (Source: P.A. 92-231, eff. 8-2-01.)
|
|
|
|
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|
| 1 |
| (35 ILCS 143/10-53 new) | 2 |
| Sec. 10-53. Acting as a retailer of tobacco products | 3 |
| without a license. Any person who knowingly acts as a retailer | 4 |
| of tobacco products in this State without first having obtained | 5 |
| a license to do so in compliance with Section 10-21 of this Act | 6 |
| or a license in compliance with Section 4d of the Cigarette Tax | 7 |
| Act shall be guilty of a Class 4 felony.
| 8 |
| Section 940. The Sale of Tobacco to Minors Act is amended | 9 |
| by adding Section 3 as follows: | 10 |
| (720 ILCS 675/3 new)
| 11 |
| Sec. 3. Additional penalties for retailers. In addition to | 12 |
| the penalties provided in Section 2 of this Act, if a person | 13 |
| who is a licensed retailer under the Cigarette Tax Act or the | 14 |
| Tobacco Products Tax Act of 1995 commits a violation of this | 15 |
| Act, that person's retailer's license shall be: | 16 |
| (1) suspended for 7 days for a first violation of this | 17 |
| Act; | 18 |
| (2) suspended for 30 days for a second violation of | 19 |
| this Act; and | 20 |
| (3) revoked for a third or subsequent violation of this | 21 |
| Act. ".
|
|