SB0082sam004 96TH GENERAL ASSEMBLY

Sen. Pamela J. Althoff

Filed: 3/25/2009

09600SB0082sam004 LRB096 03320 RLJ 24297 a

AMENDMENT TO SENATE BILL 82

AMENDMENT NO. ______. Amend Senate Bill 82 on page 10, by replacing line 20 with the following: "the extent otherwise provided in Section 5-1095.1 of the Counties Code and Sections 8-11-2.5 and 11-42-11.05 of the"; and

on page 11, immediately below line 23, by inserting the following:

"Section 15. The Counties Code is amended by adding Section 5-1095.1 as follows:

(55 ILCS 5/5-1095.1 new)

Sec. 5-1095.1. County tax and franchise fee review; requests for information.

(a) If a county has imposed a tax or franchisee fee under Section 5-1095, then the county may conduct an audit of tax receipts or franchise fees collected from the incumbent cable operator that is subject to the tax or franchise fee or that collects the tax or franchise fee from purchasers on behalf of the county to determine whether the amount of tax or franchise fee that was paid by the incumbent cable operator was accurate.

(b) Not more than once every 2 years, a county that has imposed a tax or franchise fee under this Act may, subject to the limitations and protections stated in Section 22-501 of the Cable and Video Customer Protection Law and in the Local Government Taxpayers' Bill of Rights Act, request any information from the incumbent cable operator in the format maintained by the incumbent cable operator in the ordinary course of its business that the county reasonably requires in order to perform an audit under subsection (a). The information that may be requested by the county includes, without limitation:

(1) in an electronic format used by the incumbent cable operator in the ordinary course of its business, the database used by the incumbent cable operator to determine the amount of tax or franchise fee due to the county; and

(2) in a format used by the incumbent cable operator in the ordinary course of its business, summary data, as needed by the county, to determine the gross revenues collected and the associated taxes or franchise fees assessed.

(c) Each incumbent cable operator must provide the information requested under subsection (b) within:

(1) 60 days after the date of the request if the population of the requesting county is 500,000 or less; or

(2) 90 days after the date of the request if the population of the requesting county exceeds 500,000.

The time in which an incumbent cable operator must provide the information requested under subsection (b) may be extended by an agreement between the county and the incumbent cable operator. If an incumbent cable operator receives, during a single month, information requests from more than 2 counties, or the aggregate population of the requesting counties is 100,000 customers or more, the incumbent cable operator is entitled to an additional 30 days to respond to those requests. The Illinois Department of Revenue may grant the incumbent cable operator additional extensions to respond.

(d) If an audit by the county or its agents finds an error by the incumbent cable operator in the amount of taxes or franchise fees paid by the incumbent cable operator, then the county may notify the incumbent cable operator of the error. Any such notice must be made by the county no later than 4 years after the date the tax or franchise fee required to be paid under this Law was due or any lesser period of time that may be specified in the county ordinance imposing the tax or franchise fee. Upon such a notice, the incumbent cable operator must submit a written response within 60 days after the date the notice was postmarked stating that it has corrected the error on a prospective basis or stating the reason that the error is inapplicable or inaccurate. The county then has 60 days after the receipt of the incumbent cable operator's response to review and contest the conclusion of the incumbent cable operator. If the parties are unable to agree on the disposition of the audit findings within 120 days after the notification of the error to the incumbent cable operator, then either party may submit the matter to the Illinois Department of Revenue for resolution.

(e) No incumbent cable operator is liable for any error in past collections and payments that was unknown by it prior to the audit process unless (i) the error was due to gross negligence by the incumbent cable operator in the collection or processing of required data and (ii) the county had not failed to respond in writing on an accurate and timely basis to any written request of the incumbent cable operator to review and correct information used by the incumbent cable operator to collect the county's tax or franchise fee if a diligent review of such information by the county reasonably could have been expected to discover such error. If, however, an error in past collections or payments resulted in a customer who should not have owed a tax or franchise fee to any county, having paid a tax or franchise fee to a county, then the customer may recover the tax or franchise fee from the incumbent cable operator, and any amount so paid by the incumbent cable operator may be deducted by that incumbent cable operator from any taxes or franchise fees then or thereafter owed by the incumbent cable operator to that county.

(f) All account specific information provided by an incumbent cable operator under this Section may be used only for the purpose of an audit of taxes or franchise fees conducted under this Section and the enforcement of any related tax or franchise fee claim. All such information must be held in strict confidence by the county and its agents and may not be disclosed to the public under the Freedom of Information Act or under any other similar statutes allowing for or requiring public disclosure.

(g) An incumbent cable operator that collects less than $1,000 annually in taxes and franchise fees under this Act is exempt from the provisions of subsections (a) through (e) of this Section.

(h) The Department of Revenue shall adopt any rules that are required to effectively enforce this Section. The Department of Revenue has the exclusive jurisdiction to resolve any disputes arising under this Section, subject to review by the courts under the Administrative Review Law.

(i) Any incumbent cable operator that fails to comply with the provisions of subsection (c) or (d) of this Section shall pay for all costs of enforcement by the Illinois Department of Revenue, including reasonable legal fees.

(j) For the purposes of this Section, "incumbent cable operator" means a person or entity that provided cable services or video services in a particular area under a franchise agreement with a unit of local government pursuant to Section 11-42-11 of the Illinois Municipal Code or Section 5-1095 of the Counties Code on January 1, 2007."; and

on page 11, by replacing lines 24 and 25 with the following:

"Section 20. The Illinois Municipal Code is amended by adding Sections 8-11-2.5 and 11-42-11.05 as follows:"; and

on page 16, immediately above line 10, by inserting the following:

"(65 ILCS 5/11-42-11.05 new)

Sec. 11-42-11.05. Municipal tax and franchise fee review; requests for information.

(a) If a municipality has imposed a tax or franchise fee under Section 11-42-11, then the municipality may conduct an audit of tax or franchise fee receipts collected from the incumbent cable operator that is subject to the tax or franchise fee or that collects the tax or franchise fee from purchasers on behalf of the municipality to determine whether the amount of tax or franchise fee that was paid by the incumbent cable operator was accurate.

(b) Not more than once every 2 years, a municipality that has imposed a tax or franchise fee under this Act may, subject to the limitations and protections stated in Section 22-501 of the Cable and Video Customer Protection Law and in the Local Government Taxpayers' Bill of Rights Act, request any information from the incumbent cable operator in the format maintained by the incumbent cable operator in the ordinary course of its business that the municipality reasonably requires in order to perform an audit under subsection (a). The information that may be requested by the municipality includes, without limitation:

(1) in an electronic format used by the incumbent cable operator in the ordinary course of its business, the database used by the incumbent cable operator to determine the amount of tax or franchise fee due to the municipality; and

(2) in a format used by the incumbent cable operator in the ordinary course of its business, summary data, as needed by the municipality, to determine the gross revenues collected and the associated taxes or franchise fees assessed.

(c) Each incumbent cable operator must provide the information requested under subsection (b) within:

(1) 60 days after the date of the request if the population of the requesting municipality is 500,000 or less; or

(2) 90 days after the date of the request if the population of the requesting municipality exceeds 500,000.

The time in which an incumbent cable operator must provide the information requested under subsection (b) may be extended by an agreement between the municipality and the incumbent cable operator. If an incumbent cable operator receives, during a single month, information requests from more than 2 municipalities, or the aggregate population of the requesting municipalities is 100,000 customers or more, the incumbent cable operator is entitled to an additional 30 days to respond to those requests. The Illinois Department of Revenue may grant the incumbent cable operator additional extensions to respond.

(d) If an audit by the municipality or its agents finds an error by the incumbent cable operator in the amount of taxes or franchise fees paid by the incumbent cable operator, then the municipality may notify the incumbent cable operator of the error. Any such notice must be made by the municipality no later than 4 years after the date the tax or franchise fee required to be paid under this Law was due or any lesser period of time that may be specified in the municipal ordinance imposing the tax or franchise fee. Upon such a notice, the incumbent cable operator must submit a written response within 60 days after the date the notice was postmarked stating that it has corrected the error on a prospective basis or stating the reason that the error is inapplicable or inaccurate. The municipality then has 60 days after the receipt of the incumbent cable operator's response to review and contest the conclusion of the incumbent cable operator. If the parties are unable to agree on the disposition of the audit findings within 120 days after the notification of the error to the incumbent cable operator, then either party may submit the matter to the Illinois Department of Revenue for resolution.

(e) No incumbent cable operator is liable for any error in past collections and payments that was unknown by it prior to the audit process unless (i) the error was due to gross negligence by the incumbent cable operator in the collection or processing of required data and (ii) the municipality had not failed to respond in writing on an accurate and timely basis to any written request of the incumbent cable operator to review and correct information used by the incumbent cable operator to collect the municipality's tax or franchise fee if a diligent review of such information by the municipality reasonably could have been expected to discover such error. If, however, an error in past collections or payments resulted in a customer who should not have owed a tax or franchise fee to any municipality, having paid a tax or franchise fee to a municipality, then the customer may recover the tax or franchise fee from the incumbent cable operator, and any amount so paid by the incumbent cable operator may be deducted by that incumbent cable operator from any taxes or franchise fees then or thereafter owed by the incumbent cable operator to that municipality.

(f) All account specific information provided by an incumbent cable operator under this Section may be used only for the purpose of an audit of taxes or franchise fees conducted under this Section and the enforcement of any related tax or franchise fee claim. All such information must be held in strict confidence by the municipality and its agents and may not be disclosed to the public under the Freedom of Information Act or under any other similar statutes allowing for or requiring public disclosure.

(g) An incumbent cable operator that collects less than $1,000 annually in taxes and franchise fees under this Act is exempt from the provisions of subsections (a) through (e) of this Section.

(h) The Department of Revenue shall adopt any rules that are required to effectively enforce this Section. The Department of Revenue has the exclusive jurisdiction to resolve any disputes arising under this Section, subject to review by the courts under the Administrative Review Law.

(i) Any incumbent cable operator that fails to comply with the provisions of subsection (c) or (d) of this Section shall pay for all costs of enforcement by the Illinois Department of Revenue, including reasonable legal fees.

(j) For the purposes of this Section, "incumbent cable operator" means a person or entity that provided cable services or video services in a particular area under a franchise agreement with a unit of local government pursuant to Section 11-42-11 of the Illinois Municipal Code or Section 5-1095 of the Counties Code on January 1, 2007.".