Sen. Don Harmon

Filed: 2/24/2012

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3129

2    AMENDMENT NO. ______. Amend House Bill 3129 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Prepaid Wireless 9-1-1 Surcharge Act is
5amended by changing Sections 15 and 20 as follows:
 
6    (50 ILCS 753/15)
7    Sec. 15. Prepaid wireless 9-1-1 surcharge.
8    (a) There is hereby imposed on consumers a prepaid wireless
99-1-1 surcharge of 1.5% per retail transaction. The surcharge
10authorized by this subsection (a) does not apply in a home rule
11municipality having a population in excess of 500,000. The
12amount of the surcharge may be reduced or increased pursuant to
13subsection (e).
14    (a-5) A home rule municipality having a population in
15excess of 500,000 on the effective date of this Act may only
16impose a prepaid wireless 9-1-1 surcharge not to exceed 7% per

 

 

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1retail transaction sourced to that jurisdiction and collected
2and remitted in accordance with the provisions of subsection
3(b-5).
4    (b) The prepaid wireless 9-1-1 surcharge shall be collected
5by the seller from the consumer with respect to each retail
6transaction occurring in this State and shall be remitted to
7the Department by the seller as provided in this Act. The
8amount of the prepaid wireless 9-1-1 surcharge shall be
9separately stated as a distinct item apart from the charge for
10the prepaid wireless telecommunications service on an invoice,
11receipt, or other similar document that is provided to the
12consumer by the seller or shall be otherwise disclosed to the
13consumer. If the seller does not separately state the surcharge
14as a distinct item to the consumer as provided in this Section,
15then the seller shall maintain books and records as required by
16this Act which clearly identify the amount of the 9-1-1
17surcharge for retail transactions.
18    For purposes of this subsection (b), a retail transaction
19occurs in this State if (i) the retail transaction is made in
20person by a consumer at the seller's business location and the
21business is located within the State; (ii) the seller is a
22provider and sells prepaid wireless telecommunications service
23to a consumer located in Illinois; (iii) the retail transaction
24is treated as occurring in this State for purposes of the
25Retailers' Occupation Tax Act; or (iv) a seller that is
26included within the definition of a "retailer maintaining a

 

 

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1place of business in this State" under Section 2 of the Use Tax
2Act makes a sale of prepaid wireless telecommunications service
3to a consumer located in Illinois. In the case of a retail
4transaction which does not occur in person at a seller's
5business location, if a consumer uses a credit card to purchase
6prepaid wireless telecommunications service on-line or over
7the telephone, and no product is shipped to the consumer, the
8transaction occurs in this State if the billing address for the
9consumer's credit card is in this State.
10    (b-5) The prepaid wireless 9-1-1 surcharge imposed under
11subsection (a-5) of this Section shall be collected by the
12seller from the consumer with respect to each retail
13transaction occurring in the municipality imposing the
14surcharge. The amount of the prepaid wireless 9-1-1 surcharge
15shall be separately stated on an invoice, receipt, or other
16similar document that is provided to the consumer by the seller
17or shall be otherwise disclosed to the consumer. If the seller
18does not separately state the surcharge as a distinct item to
19the consumer as provided in this Section, then the seller shall
20maintain books and records as required by this Act which
21clearly identify the amount of the 9-1-1 surcharge for retail
22transactions.
23    For purposes of this subsection (b-5), a retail transaction
24occurs in the municipality if (i) the retail transaction is
25made in person by a consumer at the seller's business location
26and the business is located within the municipality; (ii) the

 

 

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1seller is a provider and sells prepaid wireless
2telecommunications service to a consumer located in the
3municipality; (iii) the retail transaction is treated as
4occurring in the municipality for purposes of the Retailers'
5Occupation Tax Act; or (iv) a seller that is included within
6the definition of a "retailer maintaining a place of business
7in this State" under Section 2 of the Use Tax Act makes a sale
8of prepaid wireless telecommunications service to a consumer
9located in the municipality. In the case of a retail
10transaction which does not occur in person at a seller's
11business location, if a consumer uses a credit card to purchase
12prepaid wireless telecommunications service on-line or over
13the telephone, and no product is shipped to the consumer, the
14transaction occurs in the municipality if the billing address
15for the consumer's credit card is in the municipality.
16    (c) The prepaid wireless 9-1-1 surcharge is imposed on the
17consumer and not on any provider. The seller shall be liable to
18remit all prepaid wireless 9-1-1 surcharges that the seller
19collects from consumers as provided in Section 20, including
20all such surcharges that the seller is deemed to collect where
21the amount of the surcharge has not been separately stated on
22an invoice, receipt, or other similar document provided to the
23consumer by the seller. The surcharge collected or deemed
24collected by a seller shall constitute a debt owed by the
25seller to this State, and any such surcharge actually collected
26shall be held in trust for the benefit of the Department.

 

 

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1    For purposes of this subsection (c), the surcharge shall
2not be imposed or collected from entities that have an active
3tax exemption identification number issued by the Department
4are tax exempt under Section 1g of the Retailers' Occupation
5Tax Act.
6    (d) The amount of the prepaid wireless 9-1-1 surcharge that
7is collected by a seller from a consumer, if such amount is
8separately stated on an invoice, receipt, or other similar
9document provided to the consumer by the seller, shall not be
10included in the base for measuring any tax, fee, surcharge, or
11other charge that is imposed by this State, any political
12subdivision of this State, or any intergovernmental agency.
13    (e) The prepaid wireless 9-1-1 charge imposed under
14subsection (a) of this Section shall be proportionately
15increased or reduced, as applicable, upon any change to the
16surcharge imposed under Section 17 of the Wireless Emergency
17Telephone Safety Act. The adjusted rate shall be determined by
18dividing the amount of the surcharge imposed under Section 17
19of the Wireless Emergency Telephone Safety Act by $50. Such
20increase or reduction shall be effective on the first day of
21the first calendar month to occur at least 60 days after the
22enactment of the change to the surcharge imposed under Section
2317 of the Wireless Emergency Telephone Safety Act. The
24Department shall provide not less than 30 days' notice of an
25increase or reduction in the amount of the surcharge on the
26Department's website.

 

 

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1    (e-5) Any changes in the rate of the surcharge imposed by a
2municipality under the authority granted in subsection (a-5) of
3this Section shall be effective on the first day of the first
4calendar month to occur at least 60 days after the enactment of
5the change. The Department shall provide not less than 30 days'
6notice of the increase or reduction in the rate of such
7surcharge on the Department's website.
8    (f) When prepaid wireless telecommunications service is
9sold with one or more other products or services for a single,
10non-itemized price, then the percentage specified in
11subsection (a) or (a-5) of this Section 15 shall be applied to
12the entire non-itemized price unless the seller elects to apply
13the percentage to (i) the dollar amount of the prepaid wireless
14telecommunications service if that dollar amount is disclosed
15to the consumer or (ii) the portion of the price that is
16attributable to the prepaid wireless telecommunications
17service if the retailer can identify that portion by reasonable
18and verifiable standards from its books and records that are
19kept in the regular course of business for other purposes,
20including, but not limited to, books and records that are kept
21for non-tax purposes. However, if a minimal amount of prepaid
22wireless telecommunications service is sold with a prepaid
23wireless device for a single, non-itemized price, then the
24seller may elect not to apply the percentage specified in
25subsection (a) or (a-5) of this Section 15 to such transaction.
26For purposes of this subsection, an amount of service

 

 

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1denominated as 10 minutes or less or $5 or less is considered
2minimal.
3(Source: P.A. 97-463, eff. 1-1-12.)
 
4    (50 ILCS 753/20)
5    Sec. 20. Administration of prepaid wireless 9-1-1
6surcharge.
7    (a) In the administration and enforcement of this Act, the
8provisions of Sections 2a, 2b, 2c, 3, 4, 5, 5a, 5b, 5c, 5d, 5e,
95f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, 11, and 12 of the
10Retailers' Occupation Tax Act that are not inconsistent with
11this Act, and Section 3-7 of the Uniform Penalty and Interest
12Act shall apply, as far as practicable, to the subject matter
13of this Act to the same extent as if those provisions were
14included in this Act. References to "taxes" in these
15incorporated Sections shall be construed to apply to the
16administration, payment, and remittance of all surcharges
17under this Act. The Department shall establish registration and
18payment procedures that substantially coincide with the
19registration and payment procedures that apply to the
20Retailers' Occupation Tax Act.
21    (b) For the first 12 months after the effective date of
22this Act, a seller shall be permitted to deduct and retain 5%
23of prepaid wireless 9-1-1 surcharges that are collected by the
24seller from consumers and that are remitted and timely filed
25with the Department. After the first 12 months, a seller shall

 

 

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1be permitted to deduct and retain 3% of prepaid wireless 9-1-1
2surcharges that are collected by the seller from consumers and
3that are remitted and timely filed with the Department.
4    (c) Other than the amounts for deposit into the Municipal
5Wireless Service Emergency Fund, the Department shall pay to
6the State Treasurer all prepaid wireless E911 charges and
7penalties collected under this Act for deposit into the
8Wireless Service Emergency Fund. On or before the 25th day of
9each calendar month, the Department shall prepare and certify
10to the Comptroller the amount available to the Illinois
11Commerce Commission for distribution out of the Wireless
12Service Emergency Fund. The amount certified shall be the
13amount (not including credit memoranda) collected during the
14second preceding calendar month by the Department plus an
15amount the Department determines is necessary to offset any
16amounts which were erroneously paid to a different taxing body.
17The amount paid to the Wireless Service Emergency Fund shall
18not include any amount equal to the amount of refunds made
19during the second preceding calendar month by the Department to
20retailers under this Act or any amount that the Department
21determines is necessary to offset any amounts which were
22payable to a different taxing body but were erroneously paid to
23the Wireless Service Emergency Fund. The Illinois Commerce
24Commission shall distribute the funds in the same proportion as
25they are distributed under the Wireless Emergency Telephone
26Safety Act and the funds may only be used in accordance with

 

 

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1the provisions of the Wireless Emergency Telephone Safety Act.
2The Department shall pay all remitted prepaid wireless E911
3charges over to the State Treasurer for deposit into the
4Wireless Service Emergency Fund within 30 days after receipt.
5The Illinois Commerce Commission shall distribute such funds in
6the same proportion as they are distributed under the Wireless
7Emergency Telephone Safety Act and such funds may only be used
8in accordance with the provisions of the Wireless Emergency
9Telephone Safety Act. The Department may deduct an amount, not
10to exceed 3% during the first year following the effective date
11of this Act and not to exceed 2% during every year thereafter
12of remitted charges, to be transferred into retained by the Tax
13Compliance and Administration Fund Department to reimburse the
14Department for its direct costs of administering the collection
15and remittance of prepaid wireless 9-1-1 surcharges.
16    (d) The Department shall administer the collection of all
179-1-1 surcharges and may adopt and enforce reasonable rules
18relating to the administration and enforcement of the
19provisions of this Act as may be deemed expedient. The
20Department shall require all surcharges collected under this
21Act to be reported on existing forms or combined forms,
22including, but not limited to, Form ST-1. Any overpayments
23received by the Department for liabilities reported on existing
24or combined returns shall be applied as an overpayment of
25retailers' occupation tax, use tax, service occupation tax, or
26service use tax liability.

 

 

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1    (e) If a home rule municipality having a population in
2excess of 500,000 as of the effective date of this amendatory
3Act of the 97th General Assembly imposes an E911 surcharge
4under subsection (a-5) of Section 15 of this Act, then the
5Department shall pay to the State Treasurer all prepaid
6wireless E911 charges, penalties, and interest collected for
7deposit into the Municipal Wireless Service Emergency Fund. All
8deposits into the Municipal Wireless Service Emergency Fund
9shall be held by the State Treasurer as ex officio custodian
10separate and apart from all public moneys or funds of this
11State. Moneys in the Municipal Wireless Service Emergency Fund
12are not subject to appropriation. On or before the 25th day of
13each calendar month, the Department shall prepare and certify
14to the Comptroller the amount available for disbursement to the
15home rule municipality out of the Municipal Wireless Service
16Emergency Fund. The amount to be paid to the Municipal Wireless
17Service Emergency Fund shall be the amount (not including
18credit memoranda) collected during the second preceding
19calendar month by the Department plus an amount the Department
20determines is necessary to offset any amounts which were
21erroneously paid to a different taxing body. The amount paid to
22the Municipal Wireless Service Emergency Fund shall not include
23any amount equal to the amount of refunds made during the
24second preceding calendar month by the Department to retailers
25under this Act or any amount that the Department determines is
26necessary to offset any amounts which were payable to a

 

 

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1different taxing body but were erroneously paid to the
2Municipal Wireless Service Emergency Fund. Within 10 days after
3receipt by the Comptroller of the certification provided for in
4this subsection, the Comptroller shall cause the orders to be
5drawn for the respective amounts in accordance with the
6directions in the certification. The Department may deduct an
7amount, not to exceed 3% during the first year following the
8effective date of this amendatory Act of the 97th General
9Assembly and not to exceed 2% during every year thereafter of
10remitted charges, to be transferred into the Tax Compliance and
11Administration Fund to reimburse the Department for its direct
12costs of administering the collection and remittance of prepaid
13wireless 9-1-1 surcharges.
14(Source: P.A. 97-463, eff. 1-1-12.)
 
15    Section 10. The State Finance Act is amended by adding
16Section 5.811 as follows:
 
17    (30 ILCS 105/5.811 new)
18    Sec. 5.811. The Municipal Wireless Service Emergency Fund.
 
19    Section 99. Effective date. This Act takes effect upon
20becoming law.".