State of Illinois
91st General Assembly
Legislation

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[ Introduced ][ Enrolled ][ House Amendment 001 ]

91_SB0799eng

 
SB799 Engrossed                                LRB9101226PTpk

 1        AN ACT to amend the Illinois Income Tax Act  by  changing
 2    Section 1501.

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

 5        Section 5.  The Illinois Income Tax  Act  is  amended  by
 6    changing Section 1501 as follows:

 7        (35 ILCS 5/1501) (from Ch. 120, par. 15-1501)
 8        Sec. 1501.  Definitions.
 9        (a)  In  general.  When  used  in  this  Act,  where  not
10    otherwise  distinctly  expressed  or  manifestly incompatible
11    with the intent thereof:
12             (1)  Business income.  The  term  "business  income"
13        means  income  arising  from transactions and activity in
14        the regular course of the taxpayer's trade  or  business,
15        net  of  the  deductions  allocable thereto, and includes
16        income from  tangible  and  intangible  property  if  the
17        acquisition,  management, and disposition of the property
18        constitute integral parts of the taxpayer's regular trade
19        or  business  operations.  Such  term  does  not  include
20        compensation or the deductions allocable thereto.
21             (2)  Commercial  domicile.  The   term   "commercial
22        domicile"  means the principal place from which the trade
23        or business of the taxpayer is directed or managed.
24             (3)  Compensation.  The  term  "compensation"  means
25        wages,  salaries,  commissions  and  any  other  form  of
26        remuneration paid to employees for personal services.
27             (4)  Corporation. The  term  "corporation"  includes
28        associations,  joint-stock companies, insurance companies
29        and  cooperatives.  Any  entity,  including   a   limited
30        liability  company  formed  under  the  Illinois  Limited
31        Liability  Company Act, shall be treated as a corporation
 
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 1        if it is so classified for federal income tax purposes.
 2             (5)  Department. The  term  "Department"  means  the
 3        Department of Revenue of this State.
 4             (6)  Director.   The   term   "Director"  means  the
 5        Director of Revenue of this State.
 6             (7)  Fiduciary.  The  term   "fiduciary"   means   a
 7        guardian,  trustee, executor, administrator, receiver, or
 8        any person acting  in  any  fiduciary  capacity  for  any
 9        person.
10             (8)  Financial organization.
11                  (A)  The  term  "financial  organization" means
12             any  bank,  bank  holding  company,  trust  company,
13             savings  bank,  industrial  bank,  land  bank,  safe
14             deposit company, private banker,  savings  and  loan
15             association,  building  and loan association, credit
16             union, currency exchange,  cooperative  bank,  small
17             loan  company,  sales  finance  company,  investment
18             company,  or  any person which is owned by a bank or
19             bank holding  company.   For  the  purpose  of  this
20             Section  a  "person" will include only those persons
21             which a bank holding company may acquire and hold an
22             interest  in,  directly  or  indirectly,  under  the
23             provisions of the Bank Holding Company Act  of  1956
24             (12 U.S.C. 1841, et seq.), except where interests in
25             any  person  must  be  disposed  of  within  certain
26             required  time limits under the Bank Holding Company
27             Act of 1956.
28                  (B)  For purposes of subparagraph (A)  of  this
29             paragraph,  the  term "bank" includes (i) any entity
30             that is regulated by the Comptroller of the Currency
31             under the National  Bank  Act,  or  by  the  Federal
32             Reserve  Board,  or by the Federal Deposit Insurance
33             Corporation  and  (ii)  any   federally   or   State
34             chartered bank operating as a credit card bank.
 
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 1                  (C)  For  purposes  of subparagraph (A) of this
 2             paragraph, the term "sales finance company" has  the
 3             meaning provided in the following item (i) or (ii):
 4             means
 5                       (i)  A  person  primarily  engaged  in the
 6                  business of purchasing or making loans upon the
 7                  security of customer receivables.  For purposes
 8                  of this item (i), "customer receivable" means:
 9                       (a)  a  retail  installment  contract   or
10                  retail  charge  agreement within the meaning of
11                  the  Sales  Finance  Agency  Act,  the   Retail
12                  Installment  Sales  Act,  or  the Motor Vehicle
13                  Retail Installment Sales Act;
14                       (b)  an installment,  charge,  credit,  or
15                  similar  contract or agreement arising from the
16                  sale of tangible personal property or  services
17                  in  a  transaction involving a deferred payment
18                  price  payable  in  one  or  more  installments
19                  subsequent to the sale; or
20                       (c)  the outstanding balance of a contract
21                  or agreement described in provisions (a) or (b)
22                  of this item (i).
23                  A customer  receivable  need  not  provide  for
24                  payment  of  interest  on deferred payments.  A
25                  sales finance company may purchase  a  customer
26                  receivable  from,  or  make a loan secured by a
27                  customer  receivable  to,  the  seller  in  the
28                  original  transaction  or  to  a   person   who
29                  purchased  the  customer receivable directly or
30                  indirectly from that seller.
31                       (ii)  A corporation meeting  each  of  the
32                  following criteria:
33                       (a)  the  corporation  must be a member of
34                  an "affiliated group"  within  the  meaning  of
 
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 1                  Section  1504(a)  of the Internal Revenue Code,
 2                  determined without regard to Section 1504(b) of
 3                  the Internal Revenue Code;
 4                       (b)  more than 50% of the gross income  of
 5                  the  corporation  for  the taxable year must be
 6                  interest income derived from qualifying  loans.
 7                  A  "qualifying loan" is a loan made to a member
 8                  of  the  corporation's  affiliated  group  that
 9                  originates  customer  receivables  (within  the
10                  meaning  of  item  (i))  or  to  whom  customer
11                  receivables  originated  by  a  member  of  the
12                  affiliated group have been transferred, to  the
13                  extent the average outstanding balance of loans
14                  from   that   corporation  to  members  of  its
15                  affiliated group during the taxable year do not
16                  exceed   the   limitation   amount   for   that
17                  corporation.  The  "limitation  amount"  for  a
18                  corporation is the average outstanding balances
19                  during the taxable year of customer receivables
20                  (within  the meaning of item (i)) originated by
21                  all members of the affiliated group.    If  the
22                  average  outstanding balances of the loans made
23                  by a corporation to members of  its  affiliated
24                  group   exceed   the   limitation  amount,  the
25                  interest  income  of  that   corporation   from
26                  qualifying loans shall be equal to its interest
27                  income  from loans to members of its affiliated
28                  groups times a fraction equal to the limitation
29                  amount  divided  by  the  average   outstanding
30                  balances  of the loans made by that corporation
31                  to members of its affiliated group;
32                       (c)  the total of all shareholder's equity
33                  (including, without limitation, paid-in capital
34                  on common  and  preferred  stock  and  retained
 
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 1                  earnings)  of the corporation plus the total of
 2                  all  of  its   loans,   advances,   and   other
 3                  obligations  payable  or owed to members of its
 4                  affiliated group may  not  exceed  20%  of  the
 5                  total  assets  of  the  corporation at any time
 6                  during the tax year; and
 7                       (d)  more than 50% of all interest-bearing
 8                  obligations of the affiliated group payable  to
 9                  persons   outside   the   group  determined  in
10                  accordance with generally  accepted  accounting
11                  principles   must   be   obligations   of   the
12                  corporation.
13             This  amendatory Act of the 91st General Assembly is
14        declaratory of existing law. retail installment contracts
15        or retail charge agreements or the  outstanding  balances
16        under  such  contracts  or agreements.  The term includes
17        but is not limited to persons:  (i)  to  whom  the  Sales
18        Finance Agency Act is rendered inapplicable by subsection
19        (b) of Section 17 thereof; (ii) engaged in consumer sales
20        finance  activities  governed by the Sales Finance Agency
21        Act or that would be governed by that Act if conducted in
22        this State; (iii) engaged in activities governed  by  the
23        Retail  Installment  Sales  Act,  including the making or
24        purchasing of  retail  installment  contracts  or  retail
25        charge agreements for "goods" or "services" as defined in
26        that  Act,  or  activities that would be governed by that
27        Act  if  conducted  in  this  State;  (iv)   engaged   in
28        activities   governed   by   the   Motor  Vehicle  Retail
29        Installment Sales Act or that would be governed  by  that
30        Act if conducted in this State; (v) engaged in commercial
31        finance  activities  governed  by  the  Illinois  Uniform
32        Commercial Code or that would be governed by that Code if
33        conducted  in  this State; or (vi) engaged in the finance
34        leasing of  tangible  personal  property  where  "finance
 
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 1        leasing"  is  activity that is the economic equivalent of
 2        an extension of credit and  for  which  a  deduction  for
 3        depreciation  under  Section  167 of the Internal Revenue
 4        Code of 1986 is not available to a lessor.
 5                  (D)  Subparagraphs  (B)   and   (C)   of   this
 6             paragraph  are declaratory of existing law and apply
 7             retroactively, for all tax  years  beginning  on  or
 8             before  December 31, 1996,  to all original returns,
 9             to all amended returns filed no later than  30  days
10             after  the  effective date of this amendatory Act of
11             1996, and to all notices issued  on  or  before  the
12             effective  date of this amendatory Act of 1996 under
13             subsection (a) of Section  903,  subsection  (a)  of
14             Section  904,  subsection  (e)  of  Section  909, or
15             Section  912.  A  taxpayer  that  is  a   "financial
16             organization"  that  engages in any transaction with
17             an affiliate shall be a "financial organization" for
18             all purposes of this Act.
19                  (E)  For all tax years beginning on  or  before
20             December  31, 1996, a taxpayer that falls within the
21             definition  of  a  "financial  organization"   under
22             subparagraphs  (B) or (C) of this paragraph, but who
23             does not fall within the definition of a  "financial
24             organization"  under the Proposed Regulations issued
25             by the Department of Revenue on July 19,  1996,  may
26             irrevocably  elect to apply the Proposed Regulations
27             for all  of  those  years  as  though  the  Proposed
28             Regulations  had been lawfully promulgated, adopted,
29             and in effect for all of those years.  For  purposes
30             of   applying  subparagraphs  (B)  or  (C)  of  this
31             paragraph  to  all  of  those  years,  the  election
32             allowed by this subparagraph  applies  only  to  the
33             taxpayer making the election and to those members of
34             the   taxpayer's  unitary  business  group  who  are
 
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 1             ordinarily required  to  apportion  business  income
 2             under the same subsection of Section 304 of this Act
 3             as  the  taxpayer  making the election.  No election
 4             allowed by this subparagraph shall be made  under  a
 5             claim filed under subsection (d) of Section 909 more
 6             than  30  days  after  the  effective  date  of this
 7             amendatory Act of 1996.
 8             (9)  Fiscal year. The term "fiscal  year"  means  an
 9        accounting  period of 12 months ending on the last day of
10        any month other than December.
11             (10)  Includes and including. The  terms  "includes"
12        and  "including"  when  used in a definition contained in
13        this Act shall not be  deemed  to  exclude  other  things
14        otherwise within the meaning of the term defined.
15             (11)  Internal  Revenue  Code.  The  term  "Internal
16        Revenue  Code"  means  the United States Internal Revenue
17        Code of 1954 or any successor law  or  laws  relating  to
18        federal income taxes in effect for the taxable year.
19             (12)  Mathematical  error.  The  term  "mathematical
20        error" includes the following types of errors, omissions,
21        or defects in a return filed by a taxpayer which prevents
22        acceptance of the return as filed for processing:
23                  (A)  arithmetic     errors     or     incorrect
24             computations on the return or supporting schedules;
25                  (B)  entries on the wrong lines;
26                  (C)  omission  of  required supporting forms or
27             schedules or the  omission  of  the  information  in
28             whole or in part called for thereon; and
29                  (D)  an  attempt  to claim, exclude, deduct, or
30             improperly report, in a manner directly contrary  to
31             the provisions of the Act and regulations thereunder
32             any item of income, exemption, deduction, or credit.
33             (13)  Nonbusiness   income.  The  term  "nonbusiness
34        income" means all income other than  business  income  or
 
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 1        compensation.
 2             (14)  Nonresident.  The  term  "nonresident" means a
 3        person who is not a resident.
 4             (15)  Paid, incurred and accrued. The terms  "paid",
 5        "incurred"  and "accrued" shall be construed according to
 6        the method of accounting upon  the  basis  of  which  the
 7        person's base income is computed under this Act.
 8             (16)  Partnership     and    partner.    The    term
 9        "partnership" includes a syndicate,  group,  pool,  joint
10        venture  or other unincorporated organization, through or
11        by means of which any business, financial  operation,  or
12        venture  is  carried  on,  and  which  is not, within the
13        meaning of this Act, a trust or estate or a  corporation;
14        and   the  term  "partner"  includes  a  member  in  such
15        syndicate, group, pool, joint venture or organization.
16             Any entity, including a  limited  liability  company
17        formed  under the Illinois Limited Liability Company Act,
18        shall be treated as a partnership if it is so  classified
19        for federal income tax purposes.
20             For purposes of the tax imposed at subsection (c) of
21        Section  201 of this Act, the term "partnership" does not
22        include a syndicate, group, pool, joint venture or  other
23        unincorporated  organization  established  for  the  sole
24        purpose of playing the Illinois State Lottery.
25             (17)  Part-year   resident.   The   term  "part-year
26        resident" means  an  individual  who  became  a  resident
27        during the taxable year or ceased to be a resident during
28        the  taxable  year.  Under  Section 1501 (a) (20) (A) (i)
29        residence commences with presence in this State for other
30        than a temporary or transitory purpose  and  ceases  with
31        absence  from  this  State  for other than a temporary or
32        transitory purpose. Under Section 1501 (a) (20) (A)  (ii)
33        residence commences with the establishment of domicile in
34        this  State and ceases with the establishment of domicile
 
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 1        in another State.
 2             (18)  Person. The term "person" shall  be  construed
 3        to  mean  and  include  an  individual,  a trust, estate,
 4        partnership,  association,  firm,  company,  corporation,
 5        limited liability company, or fiduciary. For purposes  of
 6        Section  1301  and 1302 of this Act, a "person" means (i)
 7        an individual, (ii)  a  corporation,  (iii)  an  officer,
 8        agent, or employee of a corporation, (iv) a member, agent
 9        or  employee  of a partnership, or (v) a member, manager,
10        employee,  officer,  director,  or  agent  of  a  limited
11        liability company who in such capacity commits an offense
12        specified in Section 1301 and 1302.
13             (18A)  Records.  The  term  "records"  includes  all
14        data  maintained  by  the  taxpayer,  whether  on  paper,
15        microfilm,  microfiche,  or  any type of machine-sensible
16        data compilation.
17             (19)  Regulations. The term  "regulations"  includes
18        rules promulgated and forms prescribed by the Department.
19             (20)  Resident. The term "resident" means:
20                  (A)  an individual (i) who is in this State for
21             other  than a temporary or transitory purpose during
22             the taxable year; or (ii) who is domiciled  in  this
23             State  but  is absent from the State for a temporary
24             or transitory purpose during the taxable year;
25                  (B)  The estate of a decedent who at his or her
26             death was domiciled in this State;
27                  (C)  A trust created by a will  of  a  decedent
28             who at his death was domiciled in this State; and
29                  (D)  An irrevocable trust, the grantor of which
30             was  domiciled  in this State at the time such trust
31             became   irrevocable.   For    purpose    of    this
32             subparagraph,    a   trust   shall   be   considered
33             irrevocable to the extent that the  grantor  is  not
34             treated  as  the  owner  thereof  under Sections 671
 
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 1             through 678 of the Internal Revenue Code.
 2             (21)  Sales.  The  term  "sales"  means  all   gross
 3        receipts  of  the  taxpayer  not allocated under Sections
 4        301, 302 and 303.
 5             (22)  State. The term  "state"  when  applied  to  a
 6        jurisdiction other than this State means any state of the
 7        United States, the District of Columbia, the Commonwealth
 8        of Puerto Rico, any Territory or Possession of the United
 9        States,   and  any  foreign  country,  or  any  political
10        subdivision of any of the foregoing.  For purposes of the
11        foreign tax credit under Section 601,  the  term  "state"
12        means  any  state  of  the United States, the District of
13        Columbia,  the  Commonwealth  of  Puerto  Rico,  and  any
14        territory or possession of  the  United  States,  or  any
15        political  subdivision of any of the foregoing, effective
16        for tax years ending on or after December 31, 1989.
17             (23)  Taxable year. The term  "taxable  year"  means
18        the  calendar year, or the fiscal year ending during such
19        calendar year, upon the basis of which the base income is
20        computed under this Act. "Taxable  year"  means,  in  the
21        case  of  a  return  made for a fractional part of a year
22        under the provisions of this Act, the  period  for  which
23        such return is made.
24             (24)  Taxpayer. The term "taxpayer" means any person
25        subject to the tax imposed by this Act.
26             (25)  International   banking  facility.   The  term
27        international  banking  facility  shall  have  the   same
28        meaning as is set forth in the Illinois Banking Act or as
29        is  set  forth  in  the  laws  of  the  United  States or
30        regulations of the Board  of  Governors  of  the  Federal
31        Reserve System.
32             (26)  Income Tax Return Preparer.
33                  (A)  The  term  "income  tax  return  preparer"
34             means  any  person who prepares for compensation, or
 
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 1             who employs one  or  more  persons  to  prepare  for
 2             compensation,  any return of tax imposed by this Act
 3             or any claim for refund of tax imposed by this  Act.
 4             The preparation of a substantial portion of a return
 5             or   claim  for  refund  shall  be  treated  as  the
 6             preparation of that return or claim for refund.
 7                  (B)  A person  is  not  an  income  tax  return
 8             preparer if all he or she does is
 9                       (i)  furnish typing, reproducing, or other
10                  mechanical assistance;
11                       (ii)  prepare   returns   or   claims  for
12                  refunds for the employer by whom he or  she  is
13                  regularly and continuously employed;
14                       (iii)  prepare  as  a fiduciary returns or
15                  claims for refunds for any person; or
16                       (iv)  prepare claims  for  refunds  for  a
17                  taxpayer   in   response   to   any  notice  of
18                  deficiency  issued  to  that  taxpayer  or   in
19                  response to any waiver of restriction after the
20                  commencement of an audit of that taxpayer or of
21                  another  taxpayer  if  a  determination  in the
22                  audit  of  the  other  taxpayer   directly   or
23                  indirectly  affects  the  tax  liability of the
24                  taxpayer whose claims he or she is preparing.
25             (27)  Unitary business  group.   The  term  "unitary
26        business  group" means a group of persons related through
27        common ownership whose business activities are integrated
28        with, dependent upon and contribute to each  other.   The
29        group  will  not  include  those  members  whose business
30        activity outside the United States is 80% or more of  any
31        such  member's  total  business activity; for purposes of
32        this paragraph and clause (a) (3)  (B)  (ii)  of  Section
33        304,  business activity within the United States shall be
34        measured by means of the  factors  ordinarily  applicable
 
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 1        under  subsections  (a), (b), (c), (d), or (h) of Section
 2        304 except  that,  in  the  case  of  members  ordinarily
 3        required  to  apportion business income by means of the 3
 4        factor formula of property, payroll and  sales  specified
 5        in  subsection  (a) of Section 304, including the formula
 6        as weighted  in  subsection  (h)  of  Section  304,  such
 7        members shall not use the sales factor in the computation
 8        and  the  results  of  the  property  and  payroll factor
 9        computations of subsection (a) of Section  304  shall  be
10        divided  by  2  (by one if either the property or payroll
11        factor  has  a  denominator  of  zero).  The  computation
12        required by the preceding sentence shall, in  each  case,
13        involve  the  division of the member's property, payroll,
14        or revenue miles in the United States, insurance premiums
15        on property or risk in the United  States,  or  financial
16        organization  business  income  from  sources  within the
17        United States, as the case  may  be,  by  the  respective
18        worldwide  figures  for  such items.  Common ownership in
19        the case  of  corporations  is  the  direct  or  indirect
20        control  or ownership of more than 50% of the outstanding
21        voting stock of the persons carrying on unitary  business
22        activity.   Unitary  business  activity can ordinarily be
23        illustrated where the activities of the members are:  (1)
24        in  the  same  general  line  (such   as   manufacturing,
25        wholesaling,  retailing  of  tangible  personal property,
26        insurance, transportation or finance); or (2)  are  steps
27        in a vertically structured enterprise or process (such as
28        the   steps   involved   in  the  production  of  natural
29        resources,  which  might  include  exploration,   mining,
30        refining,  and  marketing);  and, in either instance, the
31        members are functionally integrated through the  exercise
32        of  strong  centralized  management  (where, for example,
33        authority over such matters as purchasing, financing, tax
34        compliance,  product  line,  personnel,   marketing   and
 
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 1        capital  investment  is  not  left to each member). In no
 2        event, however, will any unitary business  group  include
 3        members   which  are  ordinarily  required  to  apportion
 4        business income under different  subsections  of  Section
 5        304 except that for tax years ending on or after December
 6        31,  1987  this  prohibition shall not apply to a unitary
 7        business group composed of one or more taxpayers  all  of
 8        which  apportion  business  income pursuant to subsection
 9        (b) of Section 304, or all of  which  apportion  business
10        income  pursuant  to subsection (d) of Section 304, and a
11        holding company  of  such  single-factor  taxpayers  (see
12        definition of "financial organization" for rule regarding
13        holding  companies  of  financial  organizations).   If a
14        unitary business  group  would,  but  for  the  preceding
15        sentence, include members that are ordinarily required to
16        apportion  business income under different subsections of
17        Section 304, then for each subsection of Section 304  for
18        which  there  are  two  or more members, there shall be a
19        separate unitary business group composed of such members.
20        For purposes of the preceding two sentences, a member  is
21        "ordinarily  required to apportion business income" under
22        a particular subsection of Section 304  if  it  would  be
23        required  to  use  the apportionment method prescribed by
24        such subsection except  for  the  fact  that  it  derives
25        business  income  solely  from  Illinois.  If the unitary
26        business group members' accounting  periods  differ,  the
27        common  parent's  accounting  period  or,  if there is no
28        common parent, the accounting period of the  member  that
29        is  expected  to have, on a recurring basis, the greatest
30        Illinois income tax liability must be used  to  determine
31        whether  to  use  the  apportionment  method  provided in
32        subsection (a) or subsection (h)  of  Section  304.   The
33        prohibition  against  membership  in  a  unitary business
34        group for  taxpayers  ordinarily  required  to  apportion
 
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 1        income  under  different  subsections of Section 304 does
 2        not apply to taxpayers required to apportion income under
 3        subsection (a) and subsection (h) of  Section  304.   The
 4        provisions  of  this  amendatory Act of 1998 apply to tax
 5        years ending on or after December 31, 1998.
 6             (28)  Subchapter   S    corporation.     The    term
 7        "Subchapter  S corporation" means a corporation for which
 8        there is in effect an election under Section 1362 of  the
 9        Internal  Revenue  Code,  or for which there is a federal
10        election to opt out of the provisions of the Subchapter S
11        Revision Act of 1982 and have applied instead  the  prior
12        federal Subchapter S rules as in effect on July 1, 1982.

13        (b)  Other definitions.
14             (1)  Words  denoting  number,  gender, and so forth,
15        when used in this Act,  where  not  otherwise  distinctly
16        expressed  or  manifestly  incompatible  with  the intent
17        thereof:
18                  (A)  Words importing the singular  include  and
19             apply to several persons, parties or things;
20                  (B)  Words  importing  the  plural  include the
21             singular; and
22                  (C)  Words  importing  the   masculine   gender
23             include the feminine as well.
24             (2)  "Company"   or   "association"   as   including
25        successors   and   assigns.   The   word   "company"   or
26        "association",  when  used in reference to a corporation,
27        shall be deemed to  embrace  the  words  "successors  and
28        assigns  of  such  company  or  association", and in like
29        manner as if these last-named words, or words of  similar
30        import, were expressed.
31             (3)  Other  terms.  Any  term used in any Section of
32        this Act with  respect  to  the  application  of,  or  in
33        connection  with,  the provisions of any other Section of
34        this Act shall have the same meaning  as  in  such  other
 
SB799 Engrossed             -15-               LRB9101226PTpk
 1        Section.
 2    (Source:  P.A.  89-399,  eff.  8-20-95; 89-711, eff. 2-14-97;
 3    90-613, eff. 7-9-98.)

 4        Section 99.  Effective date.  This Act  takes  effect  on
 5    January 1, 2000.

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