103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3362

 

Introduced 2/7/2024, by Sen. Cristina Castro

 

SYNOPSIS AS INTRODUCED:
 
35 ILCS 120/1  from Ch. 120, par. 440
35 ILCS 120/2  from Ch. 120, par. 441
35 ILCS 120/2-12

    Amends the Retailers' Occupation Tax Act. Provides that a retailer that makes retail sales of tangible personal property to Illinois customers from a location or locations outside of Illinois is engaged in the occupation of selling at retail in Illinois for the purposes of the Retailers' Occupation Tax Act under specified conditions. Provides that a retailer maintaining a place of business in this State that makes retail sales of tangible personal property to Illinois customers from a location or locations outside of Illinois is engaged in the business of selling at the Illinois location to which the tangible personal property is shipped or delivered or at which possession is taken by the purchaser. Effective January 1, 2025.


LRB103 34186 HLH 66294 b

 

 

A BILL FOR

 

SB3362LRB103 34186 HLH 66294 b

1    AN ACT concerning revenue.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Retailers' Occupation Tax Act is amended by
5changing Sections 1, 2, and 2-12 as follows:
 
6    (35 ILCS 120/1)  (from Ch. 120, par. 440)
7    Sec. 1. Definitions. "Sale at retail" means any transfer
8of the ownership of or title to tangible personal property to a
9purchaser, for the purpose of use or consumption, and not for
10the purpose of resale in any form as tangible personal
11property to the extent not first subjected to a use for which
12it was purchased, for a valuable consideration: Provided that
13the property purchased is deemed to be purchased for the
14purpose of resale, despite first being used, to the extent to
15which it is resold as an ingredient of an intentionally
16produced product or byproduct of manufacturing. For this
17purpose, slag produced as an incident to manufacturing pig
18iron or steel and sold is considered to be an intentionally
19produced byproduct of manufacturing. Transactions whereby the
20possession of the property is transferred but the seller
21retains the title as security for payment of the selling price
22shall be deemed to be sales.
23    "Sale at retail" shall be construed to include any

 

 

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1transfer of the ownership of or title to tangible personal
2property to a purchaser, for use or consumption by any other
3person to whom such purchaser may transfer the tangible
4personal property without a valuable consideration, and to
5include any transfer, whether made for or without a valuable
6consideration, for resale in any form as tangible personal
7property unless made in compliance with Section 2c of this
8Act.
9    Sales of tangible personal property, which property, to
10the extent not first subjected to a use for which it was
11purchased, as an ingredient or constituent, goes into and
12forms a part of tangible personal property subsequently the
13subject of a "Sale at retail", are not sales at retail as
14defined in this Act: Provided that the property purchased is
15deemed to be purchased for the purpose of resale, despite
16first being used, to the extent to which it is resold as an
17ingredient of an intentionally produced product or byproduct
18of manufacturing.
19    "Sale at retail" shall be construed to include any
20Illinois florist's sales transaction in which the purchase
21order is received in Illinois by a florist and the sale is for
22use or consumption, but the Illinois florist has a florist in
23another state deliver the property to the purchaser or the
24purchaser's donee in such other state.
25    Nonreusable tangible personal property that is used by
26persons engaged in the business of operating a restaurant,

 

 

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1cafeteria, or drive-in is a sale for resale when it is
2transferred to customers in the ordinary course of business as
3part of the sale of food or beverages and is used to deliver,
4package, or consume food or beverages, regardless of where
5consumption of the food or beverages occurs. Examples of those
6items include, but are not limited to nonreusable, paper and
7plastic cups, plates, baskets, boxes, sleeves, buckets or
8other containers, utensils, straws, placemats, napkins, doggie
9bags, and wrapping or packaging materials that are transferred
10to customers as part of the sale of food or beverages in the
11ordinary course of business.
12    The purchase, employment and transfer of such tangible
13personal property as newsprint and ink for the primary purpose
14of conveying news (with or without other information) is not a
15purchase, use or sale of tangible personal property.
16    A person whose activities are organized and conducted
17primarily as a not-for-profit service enterprise, and who
18engages in selling tangible personal property at retail
19(whether to the public or merely to members and their guests)
20is engaged in the business of selling tangible personal
21property at retail with respect to such transactions,
22excepting only a person organized and operated exclusively for
23charitable, religious or educational purposes either (1), to
24the extent of sales by such person to its members, students,
25patients or inmates of tangible personal property to be used
26primarily for the purposes of such person, or (2), to the

 

 

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1extent of sales by such person of tangible personal property
2which is not sold or offered for sale by persons organized for
3profit. The selling of school books and school supplies by
4schools at retail to students is not "primarily for the
5purposes of" the school which does such selling. The
6provisions of this paragraph shall not apply to nor subject to
7taxation occasional dinners, socials or similar activities of
8a person organized and operated exclusively for charitable,
9religious or educational purposes, whether or not such
10activities are open to the public.
11    A person who is the recipient of a grant or contract under
12Title VII of the Older Americans Act of 1965 (P.L. 92-258) and
13serves meals to participants in the federal Nutrition Program
14for the Elderly in return for contributions established in
15amount by the individual participant pursuant to a schedule of
16suggested fees as provided for in the federal Act is not
17engaged in the business of selling tangible personal property
18at retail with respect to such transactions.
19    "Purchaser" means anyone who, through a sale at retail,
20acquires the ownership of or title to tangible personal
21property for a valuable consideration.
22    "Reseller of motor fuel" means any person engaged in the
23business of selling or delivering or transferring title of
24motor fuel to another person other than for use or
25consumption. No person shall act as a reseller of motor fuel
26within this State without first being registered as a reseller

 

 

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1pursuant to Section 2c or a retailer pursuant to Section 2a.
2    "Selling price" or the "amount of sale" means the
3consideration for a sale valued in money whether received in
4money or otherwise, including cash, credits, property, other
5than as hereinafter provided, and services, but, prior to
6January 1, 2020 and beginning again on January 1, 2022, not
7including the value of or credit given for traded-in tangible
8personal property where the item that is traded-in is of like
9kind and character as that which is being sold; beginning
10January 1, 2020 and until January 1, 2022, "selling price"
11includes the portion of the value of or credit given for
12traded-in motor vehicles of the First Division as defined in
13Section 1-146 of the Illinois Vehicle Code of like kind and
14character as that which is being sold that exceeds $10,000.
15"Selling price" shall be determined without any deduction on
16account of the cost of the property sold, the cost of materials
17used, labor or service cost or any other expense whatsoever,
18but does not include charges that are added to prices by
19sellers on account of the seller's tax liability under this
20Act, or on account of the seller's duty to collect, from the
21purchaser, the tax that is imposed by the Use Tax Act, or,
22except as otherwise provided with respect to any cigarette tax
23imposed by a home rule unit, on account of the seller's tax
24liability under any local occupation tax administered by the
25Department, or, except as otherwise provided with respect to
26any cigarette tax imposed by a home rule unit on account of the

 

 

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1seller's duty to collect, from the purchasers, the tax that is
2imposed under any local use tax administered by the
3Department. Effective December 1, 1985, "selling price" shall
4include charges that are added to prices by sellers on account
5of the seller's tax liability under the Cigarette Tax Act, on
6account of the sellers' duty to collect, from the purchaser,
7the tax imposed under the Cigarette Use Tax Act, and on account
8of the seller's duty to collect, from the purchaser, any
9cigarette tax imposed by a home rule unit.
10    Notwithstanding any law to the contrary, for any motor
11vehicle, as defined in Section 1-146 of the Vehicle Code, that
12is sold on or after January 1, 2015 for the purpose of leasing
13the vehicle for a defined period that is longer than one year
14and (1) is a motor vehicle of the second division that: (A) is
15a self-contained motor vehicle designed or permanently
16converted to provide living quarters for recreational,
17camping, or travel use, with direct walk through access to the
18living quarters from the driver's seat; (B) is of the van
19configuration designed for the transportation of not less than
207 nor more than 16 passengers; or (C) has a gross vehicle
21weight rating of 8,000 pounds or less or (2) is a motor vehicle
22of the first division, "selling price" or "amount of sale"
23means the consideration received by the lessor pursuant to the
24lease contract, including amounts due at lease signing and all
25monthly or other regular payments charged over the term of the
26lease. Also included in the selling price is any amount

 

 

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1received by the lessor from the lessee for the leased vehicle
2that is not calculated at the time the lease is executed,
3including, but not limited to, excess mileage charges and
4charges for excess wear and tear. For sales that occur in
5Illinois, with respect to any amount received by the lessor
6from the lessee for the leased vehicle that is not calculated
7at the time the lease is executed, the lessor who purchased the
8motor vehicle does not incur the tax imposed by the Use Tax Act
9on those amounts, and the retailer who makes the retail sale of
10the motor vehicle to the lessor is not required to collect the
11tax imposed by the Use Tax Act or to pay the tax imposed by
12this Act on those amounts. However, the lessor who purchased
13the motor vehicle assumes the liability for reporting and
14paying the tax on those amounts directly to the Department in
15the same form (Illinois Retailers' Occupation Tax, and local
16retailers' occupation taxes, if applicable) in which the
17retailer would have reported and paid such tax if the retailer
18had accounted for the tax to the Department. For amounts
19received by the lessor from the lessee that are not calculated
20at the time the lease is executed, the lessor must file the
21return and pay the tax to the Department by the due date
22otherwise required by this Act for returns other than
23transaction returns. If the retailer is entitled under this
24Act to a discount for collecting and remitting the tax imposed
25under this Act to the Department with respect to the sale of
26the motor vehicle to the lessor, then the right to the discount

 

 

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1provided in this Act shall be transferred to the lessor with
2respect to the tax paid by the lessor for any amount received
3by the lessor from the lessee for the leased vehicle that is
4not calculated at the time the lease is executed; provided
5that the discount is only allowed if the return is timely filed
6and for amounts timely paid. The "selling price" of a motor
7vehicle that is sold on or after January 1, 2015 for the
8purpose of leasing for a defined period of longer than one year
9shall not be reduced by the value of or credit given for
10traded-in tangible personal property owned by the lessor, nor
11shall it be reduced by the value of or credit given for
12traded-in tangible personal property owned by the lessee,
13regardless of whether the trade-in value thereof is assigned
14by the lessee to the lessor. In the case of a motor vehicle
15that is sold for the purpose of leasing for a defined period of
16longer than one year, the sale occurs at the time of the
17delivery of the vehicle, regardless of the due date of any
18lease payments. A lessor who incurs a Retailers' Occupation
19Tax liability on the sale of a motor vehicle coming off lease
20may not take a credit against that liability for the Use Tax
21the lessor paid upon the purchase of the motor vehicle (or for
22any tax the lessor paid with respect to any amount received by
23the lessor from the lessee for the leased vehicle that was not
24calculated at the time the lease was executed) if the selling
25price of the motor vehicle at the time of purchase was
26calculated using the definition of "selling price" as defined

 

 

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1in this paragraph. Notwithstanding any other provision of this
2Act to the contrary, lessors shall file all returns and make
3all payments required under this paragraph to the Department
4by electronic means in the manner and form as required by the
5Department. This paragraph does not apply to leases of motor
6vehicles for which, at the time the lease is entered into, the
7term of the lease is not a defined period, including leases
8with a defined initial period with the option to continue the
9lease on a month-to-month or other basis beyond the initial
10defined period.
11    The phrase "like kind and character" shall be liberally
12construed (including but not limited to any form of motor
13vehicle for any form of motor vehicle, or any kind of farm or
14agricultural implement for any other kind of farm or
15agricultural implement), while not including a kind of item
16which, if sold at retail by that retailer, would be exempt from
17retailers' occupation tax and use tax as an isolated or
18occasional sale.
19    "Gross receipts" from the sales of tangible personal
20property at retail means the total selling price or the amount
21of such sales, as hereinbefore defined. In the case of charge
22and time sales, the amount thereof shall be included only as
23and when payments are received by the seller. Receipts or
24other consideration derived by a seller from the sale,
25transfer or assignment of accounts receivable to a wholly
26owned subsidiary will not be deemed payments prior to the time

 

 

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1the purchaser makes payment on such accounts.
2    "Department" means the Department of Revenue.
3    "Person" means any natural individual, firm, partnership,
4association, joint stock company, joint adventure, public or
5private corporation, limited liability company, or a receiver,
6executor, trustee, guardian or other representative appointed
7by order of any court.
8    The isolated or occasional sale of tangible personal
9property at retail by a person who does not hold himself out as
10being engaged (or who does not habitually engage) in selling
11such tangible personal property at retail, or a sale through a
12bulk vending machine, does not constitute engaging in a
13business of selling such tangible personal property at retail
14within the meaning of this Act; provided that any person who is
15engaged in a business which is not subject to the tax imposed
16by this Act because of involving the sale of or a contract to
17sell real estate or a construction contract to improve real
18estate or a construction contract to engineer, install, and
19maintain an integrated system of products, but who, in the
20course of conducting such business, transfers tangible
21personal property to users or consumers in the finished form
22in which it was purchased, and which does not become real
23estate or was not engineered and installed, under any
24provision of a construction contract or real estate sale or
25real estate sales agreement entered into with some other
26person arising out of or because of such nontaxable business,

 

 

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1is engaged in the business of selling tangible personal
2property at retail to the extent of the value of the tangible
3personal property so transferred. If, in such a transaction, a
4separate charge is made for the tangible personal property so
5transferred, the value of such property, for the purpose of
6this Act, shall be the amount so separately charged, but not
7less than the cost of such property to the transferor; if no
8separate charge is made, the value of such property, for the
9purposes of this Act, is the cost to the transferor of such
10tangible personal property. Construction contracts for the
11improvement of real estate consisting of engineering,
12installation, and maintenance of voice, data, video, security,
13and all telecommunication systems do not constitute engaging
14in a business of selling tangible personal property at retail
15within the meaning of this Act if they are sold at one
16specified contract price.
17    A person who holds himself or herself out as being engaged
18(or who habitually engages) in selling tangible personal
19property at retail is a person engaged in the business of
20selling tangible personal property at retail hereunder with
21respect to such sales (and not primarily in a service
22occupation) notwithstanding the fact that such person designs
23and produces such tangible personal property on special order
24for the purchaser and in such a way as to render the property
25of value only to such purchaser, if such tangible personal
26property so produced on special order serves substantially the

 

 

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1same function as stock or standard items of tangible personal
2property that are sold at retail.
3    Persons who engage in the business of transferring
4tangible personal property upon the redemption of trading
5stamps are engaged in the business of selling such property at
6retail and shall be liable for and shall pay the tax imposed by
7this Act on the basis of the retail value of the property
8transferred upon redemption of such stamps.
9    "Bulk vending machine" means a vending machine, containing
10unsorted confections, nuts, toys, or other items designed
11primarily to be used or played with by children which, when a
12coin or coins of a denomination not larger than $0.50 are
13inserted, are dispensed in equal portions, at random and
14without selection by the customer.
15    "Remote retailer" means a retailer that does not maintain
16within this State, directly or by a subsidiary, an office,
17distribution house, sales house, warehouse or other place of
18business, or any agent or other representative operating
19within this State under the authority of the retailer or its
20subsidiary, irrespective of whether such place of business or
21agent is located here permanently or temporarily or whether
22such retailer or subsidiary is licensed to do business in this
23State.
24    "Retailer maintaining a place of business in this State"
25has the meaning given to that term in Section 2 of the Use Tax
26Act.

 

 

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1    "Marketplace" means a physical or electronic place, forum,
2platform, application, or other method by which a marketplace
3seller sells or offers to sell items.
4    "Marketplace facilitator" means a person who, pursuant to
5an agreement with an unrelated third-party marketplace seller,
6directly or indirectly through one or more affiliates
7facilitates a retail sale by an unrelated third party
8marketplace seller by:
9        (1) listing or advertising for sale by the marketplace
10    seller in a marketplace, tangible personal property that
11    is subject to tax under this Act; and
12        (2) either directly or indirectly, through agreements
13    or arrangements with third parties, collecting payment
14    from the customer and transmitting that payment to the
15    marketplace seller regardless of whether the marketplace
16    facilitator receives compensation or other consideration
17    in exchange for its services.
18    A person who provides advertising services, including
19listing products for sale, is not considered a marketplace
20facilitator, so long as the advertising service platform or
21forum does not engage, directly or indirectly through one or
22more affiliated persons, in the activities described in
23paragraph (2) of this definition of "marketplace facilitator".
24    "Marketplace facilitator" does not include any person
25licensed under the Auction License Act. This exemption does
26not apply to any person who is an Internet auction listing

 

 

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1service, as defined by the Auction License Act.
2    "Marketplace seller" means a person that makes sales
3through a marketplace operated by an unrelated third party
4marketplace facilitator.
5(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20;
6102-353, eff. 1-1-22; 102-634, eff. 8-27-21; 102-813, eff.
75-13-22.)
 
8    (35 ILCS 120/2)  (from Ch. 120, par. 441)
9    Sec. 2. Tax imposed.
10    (a) A tax is imposed upon persons engaged in the business
11of selling at retail tangible personal property, including
12computer software, and including photographs, negatives, and
13positives that are the product of photoprocessing, but not
14including products of photoprocessing produced for use in
15motion pictures for public commercial exhibition. Beginning
16January 1, 2001, prepaid telephone calling arrangements shall
17be considered tangible personal property subject to the tax
18imposed under this Act regardless of the form in which those
19arrangements may be embodied, transmitted, or fixed by any
20method now known or hereafter developed. Sales of (1)
21electricity delivered to customers by wire; (2) natural or
22artificial gas that is delivered to customers through pipes,
23pipelines, or mains; and (3) water that is delivered to
24customers through pipes, pipelines, or mains are not subject
25to tax under this Act. The provisions of this amendatory Act of

 

 

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1the 98th General Assembly are declaratory of existing law as
2to the meaning and scope of this Act.
3    (b) Beginning on January 1, 2021, a remote retailer is
4engaged in the occupation of selling at retail in Illinois for
5purposes of this Act, if:
6        (1) the cumulative gross receipts from sales of
7    tangible personal property to purchasers in Illinois are
8    $100,000 or more; or
9        (2) the retailer enters into 200 or more separate
10    transactions for the sale of tangible personal property to
11    purchasers in Illinois.
12    Remote retailers that meet or exceed the threshold in
13either paragraph (1) or (2) above shall be liable for all
14applicable State retailers' and locally imposed retailers'
15occupation taxes administered by the Department on all retail
16sales to Illinois purchasers.
17    The remote retailer shall determine on a quarterly basis,
18ending on the last day of March, June, September, and
19December, whether he or she meets the criteria of either
20paragraph (1) or (2) of this subsection for the preceding
2112-month period. If the retailer meets the criteria of either
22paragraph (1) or (2) for a 12-month period, he or she is
23considered a retailer maintaining a place of business in this
24State and is required to collect and remit the tax imposed
25under this Act and all retailers' occupation tax imposed by
26local taxing jurisdictions in Illinois, provided such local

 

 

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1taxes are administered by the Department, and to file all
2applicable returns for one year. At the end of that one-year
3period, the retailer shall determine whether the retailer met
4the criteria of either paragraph (1) or (2) for the preceding
512-month period. If the retailer met the criteria in either
6paragraph (1) or (2) for the preceding 12-month period, he or
7she is considered a retailer maintaining a place of business
8in this State and is required to collect and remit all
9applicable State and local retailers' occupation taxes and
10file returns for the subsequent year. If, at the end of a
11one-year period, a retailer that was required to collect and
12remit the tax imposed under this Act determines that he or she
13did not meet the criteria in either paragraph (1) or (2) during
14the preceding 12-month period, then the retailer shall
15subsequently determine on a quarterly basis, ending on the
16last day of March, June, September, and December, whether he
17or she meets the criteria of either paragraph (1) or (2) for
18the preceding 12-month period.
19    (b-2) Beginning on January 1, 2025, a retailer maintaining
20a place of business in this State that makes retail sales of
21tangible personal property to Illinois customers from a
22location or locations outside of Illinois is engaged in the
23occupation of selling at retail in Illinois for the purposes
24of this Act. Those retailers are liable for all applicable
25State and locally imposed retailers' occupation taxes
26administered by the Department on retail sales made by those

 

 

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1retailers to Illinois customers from locations outside of
2Illinois.
3    (b-5) For the purposes of this Section, neither the gross
4receipts from nor the number of separate transactions for
5sales of tangible personal property to purchasers in Illinois
6that a remote retailer makes through a marketplace facilitator
7shall be included for the purposes of determining whether he
8or she has met the thresholds of subsection (b) of this Section
9so long as the remote retailer has received certification from
10the marketplace facilitator that the marketplace facilitator
11is legally responsible for payment of tax on such sales.
12    (b-10) A remote retailer that is required to collect taxes
13imposed under the Use Tax Act on retail sales made to Illinois
14purchasers or a retailer maintaining a place of business in
15this State that is required to collect taxes imposed under the
16Use Tax Act on retail sales made to Illinois purchasers shall
17be liable to the Department for such taxes, except when the
18remote retailer or retailer maintaining a place of business in
19this State is relieved of the duty to remit such taxes by
20virtue of having paid to the Department taxes imposed by this
21Act in accordance with this Section upon his or her gross
22receipts from such sales.
23    (c) Marketplace facilitators engaged in the business of
24selling at retail tangible personal property in Illinois.
25Beginning January 1, 2021, a marketplace facilitator is
26engaged in the occupation of selling at retail tangible

 

 

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1personal property in Illinois for purposes of this Act if,
2during the previous 12-month period:
3        (1) the cumulative gross receipts from sales of
4    tangible personal property on its own behalf or on behalf
5    of marketplace sellers to purchasers in Illinois equals
6    $100,000 or more; or
7        (2) the marketplace facilitator enters into 200 or
8    more separate transactions on its own behalf or on behalf
9    of marketplace sellers for the sale of tangible personal
10    property to purchasers in Illinois, regardless of whether
11    the marketplace facilitator or marketplace sellers for
12    whom such sales are facilitated are registered as
13    retailers in this State.
14    A marketplace facilitator who meets either paragraph (1)
15or (2) of this subsection is required to remit the applicable
16State retailers' occupation taxes under this Act and local
17retailers' occupation taxes administered by the Department on
18all taxable sales of tangible personal property made by the
19marketplace facilitator or facilitated for marketplace sellers
20to customers in this State. A marketplace facilitator selling
21or facilitating the sale of tangible personal property to
22customers in this State is subject to all applicable
23procedures and requirements of this Act.
24    The marketplace facilitator shall determine on a quarterly
25basis, ending on the last day of March, June, September, and
26December, whether he or she meets the criteria of either

 

 

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1paragraph (1) or (2) of this subsection for the preceding
212-month period. If the marketplace facilitator meets the
3criteria of either paragraph (1) or (2) for a 12-month period,
4he or she is considered a retailer maintaining a place of
5business in this State and is required to remit the tax imposed
6under this Act and all retailers' occupation tax imposed by
7local taxing jurisdictions in Illinois, provided such local
8taxes are administered by the Department, and to file all
9applicable returns for one year. At the end of that one-year
10period, the marketplace facilitator shall determine whether it
11met the criteria of either paragraph (1) or (2) for the
12preceding 12-month period. If the marketplace facilitator met
13the criteria in either paragraph (1) or (2) for the preceding
1412-month period, it is considered a retailer maintaining a
15place of business in this State and is required to collect and
16remit all applicable State and local retailers' occupation
17taxes and file returns for the subsequent year. If at the end
18of a one-year period a marketplace facilitator that was
19required to collect and remit the tax imposed under this Act
20determines that he or she did not meet the criteria in either
21paragraph (1) or (2) during the preceding 12-month period, the
22marketplace facilitator shall subsequently determine on a
23quarterly basis, ending on the last day of March, June,
24September, and December, whether he or she meets the criteria
25of either paragraph (1) or (2) for the preceding 12-month
26period.

 

 

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1    A marketplace facilitator shall be entitled to any
2credits, deductions, or adjustments to the sales price
3otherwise provided to the marketplace seller, in addition to
4any such adjustments provided directly to the marketplace
5facilitator. This Section pertains to, but is not limited to,
6adjustments such as discounts, coupons, and rebates. In
7addition, a marketplace facilitator shall be entitled to the
8retailers' discount provided in Section 3 of the Retailers'
9Occupation Tax Act on all marketplace sales, and the
10marketplace seller shall not include sales made through a
11marketplace facilitator when computing any retailers' discount
12on remaining sales. Marketplace facilitators shall report and
13remit the applicable State and local retailers' occupation
14taxes on sales facilitated for marketplace sellers separately
15from any sales or use tax collected on taxable retail sales
16made directly by the marketplace facilitator or its
17affiliates.
18    The marketplace facilitator is liable for the remittance
19of all applicable State retailers' occupation taxes under this
20Act and local retailers' occupation taxes administered by the
21Department on sales through the marketplace and is subject to
22audit on all such sales. The Department shall not audit
23marketplace sellers for their marketplace sales where a
24marketplace facilitator remitted the applicable State and
25local retailers' occupation taxes unless the marketplace
26facilitator seeks relief as a result of incorrect information

 

 

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1provided to the marketplace facilitator by a marketplace
2seller as set forth in this Section. The marketplace
3facilitator shall not be held liable for tax on any sales made
4by a marketplace seller that take place outside of the
5marketplace and which are not a part of any agreement between a
6marketplace facilitator and a marketplace seller. In addition,
7marketplace facilitators shall not be held liable to State and
8local governments of Illinois for having charged and remitted
9an incorrect amount of State and local retailers' occupation
10tax if, at the time of the sale, the tax is computed based on
11erroneous data provided by the State in database files on tax
12rates, boundaries, or taxing jurisdictions or incorrect
13information provided to the marketplace facilitator by the
14marketplace seller.
15    (d) A marketplace facilitator shall:
16        (1) certify to each marketplace seller that the
17    marketplace facilitator assumes the rights and duties of a
18    retailer under this Act with respect to sales made by the
19    marketplace seller through the marketplace; and
20        (2) remit taxes imposed by this Act as required by
21    this Act for sales made through the marketplace.
22    (e) A marketplace seller shall retain books and records
23for all sales made through a marketplace in accordance with
24the requirements of this Act.
25    (f) A marketplace facilitator is subject to audit on all
26marketplace sales for which it is considered to be the

 

 

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1retailer, but shall not be liable for tax or subject to audit
2on sales made by marketplace sellers outside of the
3marketplace.
4    (g) A marketplace facilitator required to collect taxes
5imposed under the Use Tax Act on marketplace sales made to
6Illinois purchasers shall be liable to the Department for such
7taxes, except when the marketplace facilitator is relieved of
8the duty to remit such taxes by virtue of having paid to the
9Department taxes imposed by this Act in accordance with this
10Section upon his or her gross receipts from such sales.
11    (h) Nothing in this Section shall allow the Department to
12collect retailers' occupation taxes from both the marketplace
13facilitator and marketplace seller on the same transaction.
14    (i) If, for any reason, the Department is prohibited from
15enforcing the marketplace facilitator's duty under this Act to
16remit taxes pursuant to this Section, the duty to remit such
17taxes remains with the marketplace seller.
18    (j) Nothing in this Section affects the obligation of any
19consumer to remit use tax for any taxable transaction for
20which a certified service provider acting on behalf of a
21remote retailer or a marketplace facilitator does not collect
22and remit the appropriate tax.
23    (k) Nothing in this Section shall allow the Department to
24collect the retailers' occupation tax from both the
25marketplace facilitator and the marketplace seller.
26(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.)
 

 

 

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1    (35 ILCS 120/2-12)
2    Sec. 2-12. Location where retailer is deemed to be engaged
3in the business of selling. The purpose of this Section is to
4specify where a retailer is deemed to be engaged in the
5business of selling tangible personal property for the
6purposes of this Act, the Use Tax Act, the Service Use Tax Act,
7and the Service Occupation Tax Act, and for the purpose of
8collecting any other local retailers' occupation tax
9administered by the Department. This Section applies only with
10respect to the particular selling activities described in the
11following paragraphs. The provisions of this Section are not
12intended to, and shall not be interpreted to, affect where a
13retailer is deemed to be engaged in the business of selling
14with respect to any activity that is not specifically
15described in the following paragraphs.
16        (1) If a purchaser who is present at the retailer's
17    place of business, having no prior commitment to the
18    retailer, agrees to purchase and makes payment for
19    tangible personal property at the retailer's place of
20    business, then the transaction shall be deemed an
21    over-the-counter sale occurring at the retailer's same
22    place of business where the purchaser was present and made
23    payment for that tangible personal property if the
24    retailer regularly stocks the purchased tangible personal
25    property or similar tangible personal property in the

 

 

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1    quantity, or similar quantity, for sale at the retailer's
2    same place of business and then either (i) the purchaser
3    takes possession of the tangible personal property at the
4    same place of business or (ii) the retailer delivers or
5    arranges for the tangible personal property to be
6    delivered to the purchaser.
7        (2) If a purchaser, having no prior commitment to the
8    retailer, agrees to purchase tangible personal property
9    and makes payment over the phone, in writing, or via the
10    Internet and takes possession of the tangible personal
11    property at the retailer's place of business, then the
12    sale shall be deemed to have occurred at the retailer's
13    place of business where the purchaser takes possession of
14    the property if the retailer regularly stocks the item or
15    similar items in the quantity, or similar quantities,
16    purchased by the purchaser.
17        (3) A retailer is deemed to be engaged in the business
18    of selling food, beverages, or other tangible personal
19    property through a vending machine at the location where
20    the vending machine is located at the time the sale is made
21    if (i) the vending machine is a device operated by coin,
22    currency, credit card, token, coupon or similar device;
23    (2) the food, beverage or other tangible personal property
24    is contained within the vending machine and dispensed from
25    the vending machine; and (3) the purchaser takes
26    possession of the purchased food, beverage or other

 

 

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1    tangible personal property immediately.
2        (4) Minerals. A producer of coal or other mineral
3    mined in Illinois is deemed to be engaged in the business
4    of selling at the place where the coal or other mineral
5    mined in Illinois is extracted from the earth. With
6    respect to minerals (i) the term "extracted from the
7    earth" means the location at which the coal or other
8    mineral is extracted from the mouth of the mine, and (ii) a
9    "mineral" includes not only coal, but also oil, sand,
10    stone taken from a quarry, gravel and any other thing
11    commonly regarded as a mineral and extracted from the
12    earth. This paragraph does not apply to coal or another
13    mineral when it is delivered or shipped by the seller to
14    the purchaser at a point outside Illinois so that the sale
15    is exempt under the United States Constitution as a sale
16    in interstate or foreign commerce.
17        (5) A retailer selling tangible personal property to a
18    nominal lessee or bailee pursuant to a lease with a dollar
19    or other nominal option to purchase is engaged in the
20    business of selling at the location where the property is
21    first delivered to the lessee or bailee for its intended
22    use.
23        (6) Beginning on January 1, 2021, a remote retailer
24    making retail sales of tangible personal property that
25    meet or exceed the thresholds established in paragraph (1)
26    or (2) of subsection (b) of Section 2 of this Act is

 

 

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1    engaged in the business of selling at the Illinois
2    location to which the tangible personal property is
3    shipped or delivered or at which possession is taken by
4    the purchaser.
5        (7) Beginning January 1, 2021, a marketplace
6    facilitator facilitating sales of tangible personal
7    property that meet or exceed one of the thresholds
8    established in paragraph (1) or (2) of subsection (c) of
9    Section 2 of this Act is deemed to be engaged in the
10    business of selling at the Illinois location to which the
11    tangible personal property is shipped or delivered or at
12    which possession is taken by the purchaser when the sale
13    is made by a marketplace seller on the marketplace
14    facilitator's marketplace.
15        (8) Beginning on January 1, 2025, for sales that would
16    otherwise be sourced outside of this State, a retailer
17    maintaining a place of business in this State that makes
18    retail sales of tangible personal property to Illinois
19    customers from a location or locations outside of Illinois
20    is engaged in the business of selling at the Illinois
21    location to which the tangible personal property is
22    shipped or delivered or at which possession is taken by
23    the purchaser.
24(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.)
 
25    Section 99. Effective date. This Act takes effect January
261, 2025.