Rep. David Harris

Filed: 3/3/2015

 

 


 

 


 
09900HB0391ham001LRB099 00126 JLS 31790 a

1
AMENDMENT TO HOUSE BILL 391

2    AMENDMENT NO. ______. Amend House Bill 391 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Business Corporation Act of 1983 is amended
5by changing Sections 13.70, 14.30, 15.35, 15.65, 15.97, and
616.05 as follows:
 
7    (805 ILCS 5/13.70)  (from Ch. 32, par. 13.70)
8    Sec. 13.70. Transacting business without authority.
9    (a) No foreign corporation transacting business in this
10State without authority to do so is permitted to maintain a
11civil action in any court of this State, until the corporation
12obtains that authority. Nor shall a civil action be maintained
13in any court of this State by any successor or assignee of the
14corporation on any right, claim or demand arising out of the
15transaction of business by the corporation in this State, until
16authority to transact business in this State is obtained by the

 

 

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1corporation or by a corporation that has acquired all or
2substantially all of its assets.
3    (b) The failure of a foreign corporation to obtain
4authority to transact business in this State does not impair
5the validity of any contract or act of the corporation, and
6does not prevent the corporation from defending any action in
7any court of this State.
8    (c) A foreign corporation that transacts business in this
9State without authority is liable to this State, for the years
10or parts thereof during which it transacted business in this
11State without authority, in an amount equal to all fees,
12franchise taxes, penalties and other charges that would have
13been imposed by this Act upon the corporation had it duly
14applied for and received authority to transact business in this
15State as required by this Act, but failed to pay the franchise
16taxes that would have been computed thereon, and thereafter
17filed all reports required by this Act; and, if a corporation
18fails to file an application for authority within 60 days after
19it commences business in this State, in addition thereto it is
20liable for a penalty of either 10% of the filing fee, license
21fee and franchise taxes or $500 $200 plus $25 $5.00 for each
22month or fraction thereof in which it has continued to transact
23business in this State without authority therefor, whichever
24penalty is greater. The Attorney General shall bring
25proceedings to recover all amounts due this State under this
26Section.

 

 

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1    (d) The Attorney General shall bring an action to restrain
2a foreign corporation from transacting business in this State,
3if the authority of the foreign corporation to transact
4business has been revoked under subsection (m) of Section 13.50
5of this Act.
6(Source: P.A. 95-515, eff. 8-28-07.)
 
7    (805 ILCS 5/14.30)  (from Ch. 32, par. 14.30)
8    Sec. 14.30. Cumulative report of changes in issued shares
9or paid-in capital.
10        (a) Each domestic corporation and each foreign
11corporation authorized to transact business in this State that
12effects any change in the number of issued shares or the amount
13of paid-in capital prior to January 1, 2016 that has not
14theretofore been reported in any report other than an annual
15report, interim annual report, or final transition annual
16report, shall execute and file, in accordance with Section 1.10
17of this Act, a report with respect to the changes in its issued
18shares or paid-in capital:
19        (1) that have occurred subsequent to the last day of
20    the third month preceding its anniversary month in the
21    preceding year and prior to the first day of the second
22    month immediately preceding its anniversary month in the
23    current year; or
24        (2) in the case of a corporation that has established
25    an extended filing month, that have occurred during its

 

 

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1    fiscal year; or
2        (3) in the case of a statutory merger or consolidation
3    or an amendment to the corporation's articles of
4    incorporation that affects the number of issued shares or
5    the amount of paid-in capital, that have occurred between
6    the last day of the third month immediately preceding its
7    anniversary month and the date of the merger,
8    consolidation, or amendment or, in the case of a
9    corporation that has established an extended filing month,
10    that have occurred between the first day of its fiscal year
11    and the date of the merger, consolidation, or amendment; or
12        (4) in the case of a statutory merger or consolidation
13    or an amendment to the corporation's articles of
14    incorporation that affects the number of issued shares or
15    the amount of paid-in capital, that have occurred between
16    the date of the merger, consolidation, or amendment (but
17    not including the merger, consolidation, or amendment) and
18    the first day of the second month immediately preceding its
19    anniversary month in the current year, or in the case of a
20    corporation that has established an extended filing month,
21    that have occurred between the date of the merger,
22    consolidation or amendment (but not including the merger,
23    consolidation or amendment) and the last day of its fiscal
24    year.
25    (b) The corporation shall file the report required under
26subsection (a) not later than (i) the time its annual report is

 

 

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1required to be filed in 1992 and in each subsequent year and
2(ii) not later than the time of filing the articles of merger,
3consolidation, or amendment to the articles of incorporation
4that affects the number of issued shares or the amount of
5paid-in capital of a domestic corporation or the certified copy
6of merger of a foreign corporation.
7    (c) The report shall net decreases against increases that
8occur during the same taxable period. The report shall set
9forth:
10        (1) The name of the corporation and the state or
11    country under the laws of which it is organized.
12        (2) A statement of the aggregate number of shares which
13    the corporation has authority to issue, itemized by classes
14    and series, if any, within a class.
15        (3) A statement of the aggregate number of issued
16    shares as last reported to the Secretary of State in any
17    document required or permitted by this Act to be filed,
18    other than an annual report, interim annual report or final
19    transition annual report, itemized by classes and series,
20    if any, within a class.
21        (4) A statement, expressed in dollars, of the amount of
22    paid-in capital of the corporation as last reported to the
23    Secretary of State in any document required or permitted by
24    this Act to be filed, other than an annual report, interim
25    annual report or final transition annual report.
26        (5) A statement, if applicable, of the aggregate number

 

 

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1    of shares issued by the corporation not theretofore
2    reported to the Secretary of State as having been issued,
3    and a statement, expressed in dollars, of the value of the
4    entire consideration received, less expenses, including
5    commissions, paid or incurred in connection with the
6    issuance, for, or on account of, the issuance of the
7    shares, itemized by classes, and series, if any, within a
8    class; and in the case of shares issued as a share
9    dividend, the amount added or transferred to the paid-in
10    capital of the corporation for, or on account of, the
11    issuance of the shares; provided, however, that the report
12    shall also include the date of each issuance made prior to
13    the current reporting period, and the number of issued
14    shares and consideration received in each case.
15        (6) A statement, if applicable, expressed in dollars,
16    of the amount added or transferred to paid-in capital of
17    the corporation without the issuance of shares; provided,
18    however, that the report shall also include the date of
19    each increase made prior to the current reporting period,
20    and the consideration received in each case.
21        (7) In case of an exchange or reclassification of
22    issued shares resulting in an increase in the amount of
23    paid-in capital, a statement of the manner in which it was
24    effected, and a statement, expressed in dollars, of the
25    amount added or transferred to the paid-in capital of the
26    corporation as a result thereof, except any portion thereof

 

 

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1    reported under any other subsection of this Section as a
2    part of the consideration received by the corporation for,
3    or on account of, its issued shares; provided, however,
4    that the report shall also include the date of each
5    exchange or reclassification made prior to the current
6    reporting period and the consideration received in each
7    case.
8        (8) If the consideration received for the issuance of
9    any shares not theretofore reported as having been issued
10    consists of labor or services performed or of property,
11    other than cash, then a statement, expressed in dollars, of
12    the value of that consideration as fixed by the board of
13    directors.
14        (9) In the case of a cancellation of shares or a
15    reduction in paid-in capital made pursuant to Section 9.20,
16    the aggregate reduction in paid-in capital; provided,
17    however, that the report shall also include the date of
18    each reduction made prior to the current reporting period.
19        (10) A statement of the aggregate number of issued
20    shares itemized by classes and series, if any, within a
21    class, after giving effect to the changes reported.
22        (11) A statement, expressed in dollars, of the amount
23    of paid-in capital of the corporation after giving effect
24    to the changes reported.
25    (d) No additional license fees or franchise taxes shall be
26payable upon the filing of the report to the extent that

 

 

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1license fees or franchise taxes shall have been previously paid
2by the corporation in respect of shares previously issued which
3are being exchanged for the shares the issuance of which is
4being reported, provided those facts are shown in the report.
5    (e) The report shall be made on forms prescribed and
6furnished by the Secretary of State.
7    (f) Until the report under this Section or a report under
8Section 14.25 shall have been filed in the Office of the
9Secretary of State showing a reduction in paid-in capital, the
10basis of the annual franchise tax payable by the corporation
11shall not be reduced, provided, however, in no event shall the
12annual franchise tax for any taxable year be reduced if the
13report is not filed prior to the first day of the anniversary
14month or, in the case of a corporation which has established an
15extended filing month, the extended filing month of the
16corporation of that taxable year and before payment of its
17annual franchise tax.
18(Source: P.A. 90-421, eff. 1-1-98.)
 
19    (805 ILCS 5/15.35)  (from Ch. 32, par. 15.35)
20    Sec. 15.35. Franchise taxes payable by domestic
21corporations. For the privilege of exercising its franchises in
22this State, each domestic corporation shall pay to the
23Secretary of State the following franchise taxes, computed on
24the basis, at the rates and for the periods prescribed in this
25Act:

 

 

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1    (a) An initial franchise tax at the time of filing its
2first report of issuance of shares.
3    (b) An additional franchise tax at the time of filing (1) a
4report of the issuance of additional shares, or (2) a report of
5an increase in paid-in capital without the issuance of shares,
6or (3) an amendment to the articles of incorporation or a
7report of cumulative changes in paid-in capital, whenever any
8amendment or such report discloses an increase in its paid-in
9capital over the amount thereof last reported in any document,
10other than an annual report, interim annual report or final
11transition annual report required by this Act to be filed in
12the office of the Secretary of State.
13    (c) An additional franchise tax at the time of filing a
14report of paid-in capital following a statutory merger or
15consolidation, which discloses that the paid-in capital of the
16surviving or new corporation immediately after the merger or
17consolidation is greater than the sum of the paid-in capital of
18all of the merged or consolidated corporations as last reported
19by them in any documents, other than annual reports, required
20by this Act to be filed in the office of the Secretary of
21State; and in addition, the surviving or new corporation shall
22be liable for a further additional franchise tax on the paid-in
23capital of each of the merged or consolidated corporations as
24last reported by them in any document, other than an annual
25report, required by this Act to be filed with the Secretary of
26State from their taxable year end to the next succeeding

 

 

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1anniversary month or, in the case of a corporation which has
2established an extended filing month, the extended filing month
3of the surviving or new corporation; however if the taxable
4year ends within the 2 month period immediately preceding the
5anniversary month or, in the case of a corporation which has
6established an extended filing month, the extended filing month
7of the surviving or new corporation the tax will be computed to
8the anniversary month or, in the case of a corporation which
9has established an extended filing month, the extended filing
10month of the surviving or new corporation in the next
11succeeding calendar year.
12    (d) An annual franchise tax payable each year with the
13annual report which the corporation is required by this Act to
14file.
15    (e) The provisions of this Section shall not apply to
16require the payment of any franchise tax that would otherwise
17have been due and payable on or after January 1, 2016. There
18shall be no refunds or proration of franchise tax for any taxes
19due and payable prior to January 1, 2016 on the basis that a
20portion of the corporation's taxable year extends beyond
21January 1, 2016. This amendatory Act of the 99th General
22Assembly shall not affect any right accrued or established, or
23any liability or penalty incurred prior to January 1, 2016.
24(Source: P.A. 86-985.)
 
25    (805 ILCS 5/15.65)  (from Ch. 32, par. 15.65)

 

 

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1    Sec. 15.65. Franchise taxes payable by foreign
2corporations. For the privilege of exercising its authority to
3transact such business in this State as set out in its
4application therefor or any amendment thereto, each foreign
5corporation shall pay to the Secretary of State the following
6franchise taxes, computed on the basis, at the rates and for
7the periods prescribed in this Act:
8    (a) An initial franchise tax at the time of filing its
9application for authority to transact business in this State.
10    (b) An additional franchise tax at the time of filing (1) a
11report of the issuance of additional shares, or (2) a report of
12an increase in paid-in capital without the issuance of shares,
13or (3) a report of cumulative changes in paid-in capital or a
14report of an exchange or reclassification of shares, whenever
15any such report discloses an increase in its paid-in capital
16over the amount thereof last reported in any document, other
17than an annual report, interim annual report or final
18transition annual report, required by this Act to be filed in
19the office of the Secretary of State.
20    (c) Whenever the corporation shall be a party to a
21statutory merger and shall be the surviving corporation, an
22additional franchise tax at the time of filing its report
23following merger, if such report discloses that the amount
24represented in this State of its paid-in capital immediately
25after the merger is greater than the aggregate of the amounts
26represented in this State of the paid-in capital of such of the

 

 

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1merged corporations as were authorized to transact business in
2this State at the time of the merger, as last reported by them
3in any documents, other than annual reports, required by this
4Act to be filed in the office of the Secretary of State; and in
5addition, the surviving corporation shall be liable for a
6further additional franchise tax on the paid-in capital of each
7of the merged corporations as last reported by them in any
8document, other than an annual report, required by this Act to
9be filed with the Secretary of State, from their taxable year
10end to the next succeeding anniversary month or, in the case of
11a corporation which has established an extended filing month,
12the extended filing month of the surviving corporation; however
13if the taxable year ends within the 2 month period immediately
14preceding the anniversary month or the extended filing month of
15the surviving corporation, the tax will be computed to the
16anniversary or, extended filing month of the surviving
17corporation in the next succeeding calendar year.
18    (d) An annual franchise tax payable each year with any
19annual report which the corporation is required by this Act to
20file.
21    (e) The provisions of this Section shall not apply to
22require the payment of any franchise tax that would otherwise
23have been due and payable on or after January 1, 2016. There
24shall be no refunds or proration of franchise tax for any taxes
25due and payable prior to January 1, 2016 on the basis that a
26portion of the corporation's taxable year extends beyond

 

 

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1January 1, 2016. This amendatory Act of the 99th General
2Assembly shall not affect any right accrued or established, or
3any liability or penalty incurred prior to January 1, 2016.
4(Source: P.A. 92-33, eff. 7-1-01.)
 
5    (805 ILCS 5/15.97)  (from Ch. 32, par. 15.97)
6    Sec. 15.97. Corporate Franchise Tax Refund Fund.
7    (a) Beginning July 1, 1993, a percentage of the amounts
8collected under Sections 15.35, 15.45, 15.65, and 15.75 of this
9Act shall be deposited into the Corporate Franchise Tax Refund
10Fund, a special Fund hereby created in the State treasury. From
11July 1, 1993, until December 31, 1994, there shall be deposited
12into the Fund 3% of the amounts received under those Sections.
13Beginning January 1, 1995, and for each fiscal year beginning
14thereafter, 2% of the amounts collected under those Sections
15during the preceding fiscal year shall be deposited into the
16Fund.
17    (b) Beginning July 1, 1993, moneys in the Fund shall be
18expended exclusively for the purpose of paying refunds payable
19because of overpayment of franchise taxes, penalties, or
20interest under Sections 13.70, 15.35, 15.45, 15.65, 15.75, and
2116.05 of this Act and making transfers authorized under this
22Section. Refunds in accordance with the provisions of
23subsections (f) and (g) of Section 1.15 and Section 1.17 of
24this Act may be made from the Fund only to the extent that
25amounts collected under Sections 15.35, 15.45, 15.65, and 15.75

 

 

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1of this Act have been deposited in the Fund and remain
2available. Within a reasonable time after the 30th day of June
3of each year, the Secretary of State shall direct and the
4Comptroller shall order transferred to the General Revenue Fund
5all amounts in excess of $100,000 remaining in the fund as of
6June 30. Notwithstanding the above, for the period commencing
7on the effective date of this amendatory Act of the 99th
8General Assembly and continuing through December 31, 2018,
9amounts in the fund shall not be transferred to the General
10Revenue Fund and shall be used to pay refunds in accordance
11with the provisions of this Act. Within a reasonable time after
12January 1, 2019, the Secretary of State shall direct and the
13Comptroller shall order transferred to the General Revenue Fund
14all amounts remaining in the fund.
15    (c) This Act shall constitute an irrevocable and continuing
16appropriation from the Corporate Franchise Tax Refund Fund for
17the purpose of paying refunds upon the order of the Secretary
18of State in accordance with the provisions of this Section.
19(Source: P.A. 93-59, eff. 7-1-03.)
 
20    (805 ILCS 5/16.05)  (from Ch. 32, par. 16.05)
21    Sec. 16.05. Penalties and interest imposed upon
22corporations.
23    (a) Each corporation, domestic or foreign, that fails or
24refuses to file any annual report or report of cumulative
25changes in paid-in capital and pay any franchise tax due

 

 

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1pursuant to the report prior to the first day of its
2anniversary month or, in the case of a corporation which has
3established an extended filing month, the extended filing month
4of the corporation shall pay a penalty of 10% of the amount of
5any delinquent franchise tax due for the report. From February
61, 2008 through March 15, 2008, no penalty shall be imposed
7with respect to any amount of delinquent franchise tax paid
8pursuant to the Franchise Tax and License Fee Amnesty Act of
92007. Notwithstanding the above, commencing on January 1, 2016,
10each corporation, domestic or foreign, that fails or refuses to
11file any annual report prior to the first day of its
12anniversary month, or in the case of a corporation which has
13established an extended filing month, the extended filing month
14of the corporation, shall pay a penalty of $50 plus $10 for
15each calendar month or part of the month that it is delinquent.
16    (b) Each corporation, domestic or foreign, that fails or
17refuses to file a report of issuance of shares or increase in
18paid-in capital within the time prescribed by this Act is
19subject to a penalty on any obligation occurring prior to
20January 1, 1991, and interest on those obligations on or after
21January 1, 1991, for each calendar month or part of month that
22it is delinquent in the amount of 2% of the amount of license
23fees and franchise taxes provided by this Act to be paid on
24account of the issuance of shares or increase in paid-in
25capital. From February 1, 2008 through March 15, 2008, no
26penalty shall be imposed, or interest charged, with respect to

 

 

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1any amount of delinquent license fees and franchise taxes paid
2pursuant to the Franchise Tax and License Fee Amnesty Act of
32007.
4    (c) Each corporation, domestic or foreign, that fails or
5refuses to file a report of cumulative changes in paid-in
6capital or report following merger within the time prescribed
7by this Act is subject to interest on or after January 1, 1992,
8for each calendar month or part of month that it is delinquent,
9in the amount of 2% of the amount of franchise taxes provided
10by this Act to be paid on account of the issuance of shares or
11increase in paid-in capital disclosed on the report of
12cumulative changes in paid-in capital or report following
13merger, or $1, whichever is greater. From February 1, 2008
14through March 15, 2008, no interest shall be charged with
15respect to any amount of delinquent franchise tax paid pursuant
16to the Franchise Tax and License Fee Amnesty Act of 2007.
17Notwithstanding the above, commencing on January 1, 2016, each
18corporation, domestic or foreign, that fails or refuses to file
19any report following merger within the time prescribed by this
20Act, shall pay a penalty of $50 plus $10 for each calendar
21month or part of the month that it is delinquent.
22    (d) If the annual franchise tax, or the supplemental annual
23franchise tax for any 12-month period commencing July 1, 1968,
24or July 1 of any subsequent year through June 30, 1983,
25assessed in accordance with this Act, is not paid by July 31,
26it is delinquent, and there is added a penalty prior to January

 

 

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11, 1991, and interest on and after January 1, 1991, of 2% for
2each month or part of month that it is delinquent commencing
3with the month of August, or $1, whichever is greater. From
4February 1, 2008 through March 15, 2008, no penalty shall be
5imposed, or interest charged, with respect to any amount of
6delinquent franchise taxes paid pursuant to the Franchise Tax
7and License Fee Amnesty Act of 2007.
8    (e) If the supplemental annual franchise tax assessed in
9accordance with the provisions of this Act for the 12-month
10period commencing July 1, 1967, is not paid by September 30,
111967, it is delinquent, and there is added a penalty prior to
12January 1, 1991, and interest on and after January 1, 1991, of
132% for each month or part of month that it is delinquent
14commencing with the month of October, 1967. From February 1,
152008 through March 15, 2008, no penalty shall be imposed, or
16interest charged, with respect to any amount of delinquent
17franchise taxes paid pursuant to the Franchise Tax and License
18Fee Amnesty Act of 2007.
19    (f) If any annual franchise tax for any period beginning on
20or after July 1, 1983, is not paid by the time period herein
21prescribed, it is delinquent and there is added a penalty prior
22to January 1, 1991, and interest on and after January 1, 1991,
23of 2% for each month or part of a month that it is delinquent
24commencing with the anniversary month or in the case of a
25corporation that has established an extended filing month, the
26extended filing month, or $1, whichever is greater. From

 

 

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1February 1, 2008 through March 15, 2008, no penalty shall be
2imposed, or interest charged, with respect to any amount of
3delinquent franchise taxes paid pursuant to the Franchise Tax
4and License Fee Amnesty Act of 2007.
5    (g) Any corporation, domestic or foreign, failing to pay
6the prescribed fee for assumed corporate name renewal when due
7and payable shall be given notice of nonpayment by the
8Secretary of State by regular mail; and if the fee together
9with a penalty fee of $5 is not paid within 90 days after the
10notice is mailed, the right to use the assumed name shall
11cease.
12    (h) Any corporation which (i) puts forth any sign or
13advertisement, assuming any name other than that by which it is
14incorporated or otherwise authorized by law to act or (ii)
15violates Section 3.25, shall be guilty of a Class C misdemeanor
16and shall be deemed guilty of an additional offense for each
17day it shall continue to so offend.
18    (i) Each corporation, domestic or foreign, that fails or
19refuses (1) to answer truthfully and fully within the time
20prescribed by this Act interrogatories propounded by the
21Secretary of State in accordance with this Act or (2) to
22perform any other act required by this Act to be performed by
23the corporation, is guilty of a Class C misdemeanor.
24    (j) Each corporation that fails or refuses to file articles
25of revocation of dissolution within the time prescribed by this
26Act is subject to a penalty for each calendar month or part of

 

 

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1the month that it is delinquent in the amount of $50.
2(Source: P.A. 95-233, eff. 8-16-07; 95-707, eff. 1-11-08;
396-1121, eff. 1-1-11.)".