State of Illinois
91st General Assembly
Public Acts

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Public Act 91-0203

SB546 Enrolled                                 LRB9104844PTpk

    AN ACT in relation to taxes collected on  behalf  of  the
State and held in trust for the benefit of the State.

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

    Section 5.  The  Use  Tax  Act  is  amended  by  changing
Section 8 as follows:

    (35 ILCS 105/8) (from Ch. 120, par. 439.8)
    Sec. 8.  Any retailer required to collect the tax imposed
by  this  Act shall be liable to the Department for such tax,
whether or not the tax has been collected  by  the  retailer,
except when the retailer is relieved of the duty of remitting
the  tax  to  the  Department  by virtue of having paid a tax
imposed by the Retailers' Occupation Tax Act upon his or  her
gross  receipts  from  the  same transactions.  To the extent
that a retailer required to collect the tax imposed  by  this
Act  has  actually  collected  that  tax, such tax is held in
trust for the benefit  of  the  Department.  The  tax  herein
required  to  be  collected  by any retailer pursuant to this
Act, and  any  such  tax  collected  by  any  retailer  shall
constitute  a debt owed by the retailer to this State, except
when such retailer is relieved of the duty of remitting  such
tax to the Department by virtue of his being required to pay,
and  his  in  fact paying, the tax imposed by the "Retailers'
Occupation Tax Act" upon his gross  receipts  from  the  same
transaction.
(Source: P.A. 76-222.)

    Section  10.   The  Service  Use  Tax  Act  is amended by
changing Section 8 as follows:

    (35 ILCS 110/8) (from Ch. 120, par. 439.38)
    Sec. 8.  Any  serviceman  required  to  collect  the  tax
imposed by this Act shall be liable to the Department for the
tax,  whether  or  not  the  tax  has  been  collected by the
serviceman, except when the serviceman  is  relieved  of  the
duty  of  remitting  the  tax  to the Department by virtue of
having paid a tax imposed by the Service Occupation  Tax  Act
upon  his  or  her  sale  of service involving the incidental
transfer by him or her of the same property.  To  the  extent
that a serviceman required to collect the tax imposed by this
Act has actually collected that tax, the tax is held in trust
for the benefit of the Department. The tax herein required to
be  collected by any serviceman pursuant to this Act, and any
such tax collected by any serviceman shall constitute a  debt
owed  by  the  serviceman  to  this  State,  except when such
serviceman is relieved of the duty of remitting such  tax  to
the  Department  by  virtue of his being required to pay, and
his  in  fact  paying,  the  tax  imposed  by  the   "Service
Occupation  Tax  Act"  upon his sale of service involving the
incidental transfer by him of the same property.
(Source: P.A. 76-223.)

    Section 15.  The Telecommunications  Excise  Tax  Act  is
amended by changing Section 5 as follows:

    (35 ILCS 630/5) (from Ch. 120, par. 2005)
    Sec.  5.  Any retailer maintaining a place of business in
this State shall collect and remit to the Department the  tax
imposed  by  this Act.  Any such retailer shall be liable for
the tax whether or not the tax  has  been  collected  by  the
retailer.   To the extent that a retailer required to collect
the tax imposed by this Act has actually collected that  tax,
such  tax is held in trust for the benefit of the Department.
The  tax  imposed  hereunder  shall  be  collected  from  the
taxpayer by a retailer maintaining a  place  of  business  in
this State and remitted to the Department pursuant to Section
5  hereof.   The tax required to be collected by this Article
and any such tax collected by such retailer shall  constitute
a  debt  owed by the retailer to this State.  Retailers shall
collect the tax from the taxpayer by adding the  tax  to  the
gross  charge  for  the  act  or  privilege of originating or
receiving telecommunications in this  State,  when  sold  for
use,  in  the  manner  prescribed by the Department. Whenever
possible,  the  tax  imposed  by  this  Article  shall,  when
collected, be stated as a distinct item  separate  and  apart
from  the  gross  charge  for  telecommunications.   The  tax
imposed  by  this  Article  shall  constitute  a  debt of the
purchaser to the retailer who provides such taxable  services
until paid, and, if unpaid, is recoverable at law in the same
manner as the original charge for such taxable services.
(Source: P.A. 86-905.)

    Section  20.   The  Uniform  Penalty  and Interest Act is
amended by changing Section 3-7 as follows:

    (35 ILCS 735/3-7) (from Ch. 120, par. 2603-7)
    Sec. 3-7.  Personal Liability Penalty.
    (a)  Any officer or employee of any taxpayer  subject  to
the  provisions  of  a tax Act administered by the Department
who has the control, supervision or responsibility of  filing
returns  and  making  payment  of the amount of any trust tax
imposed in accordance with that Act and who wilfully fails to
file the return or make the  payment  to  the  Department  or
wilfully  attempts in any other manner to evade or defeat the
tax shall be personally liable for a  penalty  equal  to  the
total amount of tax unpaid by the taxpayer including interest
and  penalties  thereon.  The  Department  shall  determine a
penalty due under this Section according to its best judgment
and information, and that determination shall be prima  facie
correct  and  shall  be prima facie evidence of a penalty due
under this Section.   Proof  of  that  determination  by  the
Department  shall  be made at any hearing before it or in any
legal proceeding by reproduced copy or computer  printout  of
the  Department's  record relating thereto in the name of the
Department under the certificate of the Director of  Revenue.
If  reproduced copies of the Department's records are offered
as proof of that determination,  the  Director  must  certify
that  those  copies  are  true and exact copies of records on
file with the Department.   If  computer  print-outs  of  the
Department's   records   are   offered   as   proof  of  such
determination, the Director must certify that those  computer
print-outs  are  true  and  exact  representations of records
properly   entered   into   standard   electronic   computing
equipment,  in  the  regular  course  of   the   Department's
business, at or reasonably near the time of the occurrence of
the   facts   recorded,   from   trustworthy   and   reliable
information.   That  certified  reproduced  copy or certified
computer print-out shall without further proof,  be  admitted
into   evidence   before  the  Department  or  in  any  legal
proceeding and shall be prima facie proof of the  correctness
of the amount of tax or penalty due.
    (b)  The  Department  shall  issue  a  notice  of penalty
liability for the amount claimed by the  Department  pursuant
to  this  Section.   Procedures  for  protest and review of a
notice of penalty liability issued pursuant to  this  Section
and assessment of the penalty due hereunder shall be the same
as those prescribed for protest and review of a notice of tax
liability  or a notice of deficiency, as the case may be, and
the assessment of tax liability under the Act  imposing  that
liability.
    (b-5)  Any    person   filing   an   action   under   the
Administrative Review Law to review  a  final  assessment  or
revised  final  assessment  (except  a  final  assessment  or
revised final assessment relating to any trust tax imposed in
accordance  with  the  Illinois Income Tax Act) issued by the
Department under this Section shall,  within  20  days  after
filing  the  complaint,  file a bond with good and sufficient
surety or sureties residing in this State or licensed  to  do
business  in  this State, or instead of bond, obtain an order
from the court imposing a lien upon the plaintiff's  property
as  hereinafter provided.  If the person filing the complaint
fails to comply with this bonding requirement within 20  days
after  filing  the  complaint,  the  Department  shall file a
motion to dismiss and the  court  shall  dismiss  the  action
unless the person filing the action complies with the bonding
requirements set out with this provision within 30 days after
the filing of the Department's motion to dismiss.
    Upon  dismissal of a complaint for failure to comply with
this subsection, the court shall enter judgment  against  the
taxpayer  and in favor of the Department in the amount of the
final assessment or revised final assessment,  together  with
any interest that has accrued since the Department issued the
final  assessment or revised final assessment, and for costs.
The judgment  is  enforceable  as  other  judgments  for  the
payment of money.
    The amount of the bond shall be fixed and approved by the
court,  but  shall not be less than the amount of the tax and
penalty claimed to be due by  the  Department  in  its  final
assessment  or  revised final assessment to the person filing
the bond, plus the amount of interest due from that person to
the Department at the time when  the  Department  issued  its
final  assessment or revised final assessment to that person.
The bond must be executed in  favor  of  the  Department  and
conditioned  on  the  taxpayer's payment within 30 days after
termination of the proceedings for  judicial  review  of  the
amount of tax, penalty, and interest found by the court to be
due in those proceedings.  The bond, when filed and approved,
is,  from  that  time  until 2 years after termination of the
proceedings for judicial review in which the bond is filed, a
lien against the real estate situated in the county in  which
the  bond  is  filed of the person filing the bond and of the
surety or sureties on the bond, until the  condition  of  the
bond  is  complied  with  or  until  the  bond is canceled as
provided  in  this  subsection.  The  lien  does  not  apply,
however, to the real property  of  a  corporate  surety  duly
licensed  to  do business in this State. If the person filing
the bond fails to keep its condition, the bond is  forfeited,
and  the  Department may institute an action upon the bond in
its own name for the entire amount of the bond and costs.  An
action upon the bond is  in  addition  to  any  other  remedy
provided by law.  If the person filing the bond complies with
its  condition  or if, in the proceedings for judicial review
in which the bond is filed, the court determines that no tax,
penalty, or interest is due, the bond shall  be  canceled  by
the issuer of the bond.
    If  the  court  finds  in  a  particular  case  that  the
plaintiff  cannot  furnish  a satisfactory surety or sureties
for the kind of bond required in this subsection,  the  court
may  relieve the plaintiff of the obligation of filing a bond
if, upon the timely application of the plaintiff for  a  lien
in  place  of  a  bond  and  accompanying proof, the court is
satisfied that a lien would secure the assessment as well  as
would  a  bond.   Upon that finding, the court shall enter an
order subjecting the plaintiff's real and  personal  property
(including  subsequently  acquired  property) situated in the
county in which the order is entered to a lien  in  favor  of
the  Department.  The lien shall be for the amount of the tax
and penalty claimed to be due by the Department in its  final
assessment  or  revised  final assessment, plus the amount of
interest due from that person to the Department at  the  time
when  the  Department  issued its final assessment or revised
final assessment to that person.   The  lien  shall  continue
until  the  court  determines in the proceedings for judicial
review that no tax, penalty, or interest is due, or until the
plaintiff pays  to  the  Department  the  tax,  penalty,  and
interest  secured  by the lien.  In its discretion, the court
may impose a lien regardless of the ratio of  the  taxpayer's
assets  to  the  final assessment or revised final assessment
plus the amount of the interest and penalty.  This subsection
does not give the Department a preference over the rights  of
a bona fide purchaser, mortgagee, judgment creditor, or other
lien  holder  arising  before the entry of the order creating
the lien in favor of the Department. "Bona fide", as used  in
this  subsection,  does  not  include  a  mortgage of real or
personal property or other credit transaction that results in
the mortgagee or the holder of the security acting as trustee
for unsecured creditors of  the  taxpayer  who  executed  the
chattel  or real property mortgage or the document evidencing
the credit transaction.  The lien is inferior to the lien  of
general  taxes, special assessments, and special taxes levied
by a political subdivision of this State.  The  lien  is  not
effective  against  a  purchaser with respect to an item in a
retailer's stock in trade purchased from the retailer in  the
usual course of the retailer's business.  The lien may not be
enforced  against  the  household  effects,  wearing apparel,
books, or tools or implements of a trade or  profession  kept
for use by any person. The lien is not effective against real
property  unless  and until a certified copy or memorandum of
such order is recorded in the Office of the Recorder of Deeds
for the county or counties in which the property is  located.
The  lien  is not effective against real property whose title
is registered under the provisions of the  Registered  Titles
(Torrens)  Act until the provisions of Section 85 of that Act
are complied with.
    Service upon the Director of  Revenue  or  the  Assistant
Director  of Revenue of summons issued in an action to review
a final administrative decision of the Department is  service
upon  the Department. The Department shall certify the record
of its proceedings if the taxpayer pays to it 75¢ per page of
testimony taken before the Department and 25¢ per page of all
other matters contained in  the  record,  except  that  these
charges  may  be waived when the Department is satisfied that
the aggrieved party is a poor person who cannot afford to pay
the charges.  If payment for the record is not  made  by  the
taxpayer  within  30 days after notice from the Department or
the Attorney General of the cost,  the  court  in  which  the
proceeding  is  pending,  on  motion of the Department, shall
dismiss the complaint and (when the  administrative  decision
as  to  which  the  action for judicial review was filed is a
final assessment or revised  final  assessment)  shall  enter
judgment  against the taxpayer and in favor of the Department
for the amount of tax and penalty shown by  the  Department's
final  assessment or revised final assessment to be due, plus
interest as provided for in this Act from the date  when  the
liability  upon  which the interest accrued became delinquent
until the entry of the judgment in the  action  for  judicial
review  under  the  Administrative  Review  Law, and also for
costs.
    (c)  The personal liability imposed by this Section shall
survive the dissolution of a partnership,  limited  liability
company,  or  corporation.    No  notice of penalty liability
shall be issued after the expiration of  3  years  after  the
date  all proceedings in court for the review of any final or
revised final assessments issued  against  a  taxpayer  which
constitute   the   basis   of  such  penalty  liability  have
terminated or the time for the  taking  thereof  has  expired
without  such  proceedings  being  instituted  or  after  the
expiration  of  3 years after the date a return is filed with
the Department by  a  taxpayer  in  cases  where  the  return
constitutes  the  basis  of  such  liability.  Interest shall
continue to accrue on that portion of the penalty imposed  by
this  Section which represents the tax unpaid by the taxpayer
at the same rate and in the same amount as  interest  accrues
on the tax unpaid by the taxpayer.
    (d)  In  addition to any other remedy provided for by the
laws  of  this  State,  and  provided  that  no  hearing   or
proceeding  for  review  is pending, any Section of a tax Act
which provides a means for collection of taxes shall  in  the
same  manner  and  to the same extent provide a means for the
collection of the  penalty  imposed  by  this  Section.   The
procedures  for the filing of an action for collection of the
penalty imposed by this Section shall be the  same  as  those
prescribed  by  a  tax  Act  for  the filing of an action for
collection of the tax assessed  under  that  Act.   The  time
limitation  period on the Department's right to bring suit to
recover the amount  of  such  tax,  or  portion  thereof,  or
penalty  or  interest  from  such  person,  or if deceased or
incompetent to file a claim thereof against his estate, shall
not run during:  (1) any period of time in which the order of
any Court has the effect  of  enjoining  or  restraining  the
Department  from  bringing  such  suit  or claim against such
person, or (2) any period of time in which the order  of  the
Court   has  the  effect  of  enjoining  or  restraining  the
Department from bringing  suit  or  initiating  other  proper
proceedings  for  the  collection  of  such  amounts from the
taxpayer, or (3) any period of time the person  departs  from
and  remains  out  of the State; but the foregoing provisions
concerning absence from the State shall not apply to any case
in which, at the time when a tax or penalty becomes due under
this Act, the person  allegedly  liable  therefor  is  not  a
resident of this State.
    (e)  For  the  purposes  of  this  Section,  "officer  or
employee   of   any   taxpayer"   includes  a  partner  of  a
partnership, a manager  or  member  of  a  limited  liability
corporation,  and  a member of a registered limited liability
partnership.
    (f)  A trust tax is  any  tax  for  which  an  amount  is
collected  or withheld by a taxpayer from another person, and
any tax for which an amount is required to  be  collected  or
withheld  by  a  taxpayer  from another person, regardless of
whether it is in fact collected or withheld.
    (g)  The personal liability imposed by this Section is in
addition to liability incurred by a partner of a  partnership
or  limited liability partnership resulting from the issuance
of a notice of tax liability issued  to  the  partnership  or
limited liability partnership.
    (h)  In  addition  to  any  other basis for imposition of
liability under this Act including under  subsection  (a)  of
this Section, any person who collects, withholds, or receives
a  tax,  or  any amount represented to be a tax, from another
person holds the amount so collected or withheld  in  special
trust  for the benefit of the Department and is liable to the
Department for the  amount  so  withheld  or  collected  plus
accrued interest and penalty on that amount.  For purposes of
this  subsection,  "person" shall have the same definition as
provided in Section 1 of the Retailers' Occupation Tax Act.
(Source: P.A. 89-399,  eff.  8-20-95;  89-626,  eff.  8-9-96;
90-458, eff. 8-17-97.)

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

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