Sen. Omar Aquino

Filed: 10/29/2019





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2    AMENDMENT NO. ______. Amend House Bill 2455 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Illinois Secure Choice Savings Program Act
5is amended by changing Section 85 as follows:
6    (820 ILCS 80/85)
7    Sec. 85. Penalties.
8    (a) An employer who fails without reasonable cause to
9enroll an employee in the Program within the time prescribed
10under Section 60 of this Act shall be subject to a penalty
11equal to:
12        (1) $250 per for each employee for the first each
13    calendar year the employer is noncompliant or portion of a
14    calendar year during which the employee neither was
15    enrolled in the Program nor had elected out of
16    participation in the Program; or



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1        (2) $500 per employee for each subsequent calendar year
2    the employer is noncompliant; noncompliance does not need
3    to be consecutive to qualify for the $500 penalty beginning
4    after the date a penalty has been assessed with respect to
5    an employee, $500 for any portion of that calendar year
6    during which such employee continues to be unenrolled
7    without electing out of participation in the Program.
8    The Department shall determine total employee count using
9the annual average from employer-reported quarterly data.
10    (b) After determining that an employer is subject to a
11penalty under this Section for a calendar year, the Department
12shall issue a notice of proposed assessment to such employer,
13stating the number of employees for which the penalty is
14proposed under item (1) of subsection (a) of this Section or
15and the number of employees for which the penalty is proposed
16under item (2) of subsection (a) of this Section for such
17calendar year, and the total amount of penalties proposed.
18    Upon the expiration of 90 days after the date on which a
19notice of proposed assessment was issued, the penalties
20specified therein shall be deemed assessed, unless the employer
21had filed a protest with the Department under subsection (c) of
22this Section.
23    If, within 90 days after the date on which it was issued, a
24protest of a notice of proposed assessment is filed under
25subsection (c) of this Section, the penalties specified therein
26shall be deemed assessed upon the date when the decision of the



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1Department with respect to the protest becomes final.
2    (c) A written protest against the proposed assessment shall
3be filed with the Department in such form as the Department may
4by rule prescribe, setting forth the grounds on which such
5protest is based. If such a protest is filed within 90 days
6after the date the notice of proposed assessment is issued, the
7Department shall reconsider the proposed assessment and shall
8grant the employer a hearing. As soon as practicable after such
9reconsideration and hearing, the Department shall issue a
10notice of decision to the employer, setting forth the
11Department's findings of fact and the basis of decision. The
12decision of the Department shall become final:
13        (1) if no action for review of the decision is
14    commenced under the Administrative Review Law, on the date
15    on which the time for commencement of such review has
16    expired; or
17        (2) if a timely action for review of the decision is
18    commenced under the Administrative Review Law, on the date
19    all proceedings in court for the review of such assessment
20    have terminated or the time for the taking thereof has
21    expired without such proceedings being instituted.
22    (d) As soon as practicable after the penalties specified in
23a notice of proposed assessment are deemed assessed, the
24Department shall give notice to the employer liable for any
25unpaid portion of such assessment, stating the amount due and
26demanding payment. If an employer neglects or refuses to pay



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1the entire liability shown on the notice and demand within 10
2days after the notice and demand is issued, the unpaid amount
3of the liability shall be a lien in favor of the State of
4Illinois upon all property and rights to property, whether real
5or personal, belonging to the employer, and the provisions in
6the Illinois Income Tax Act regarding liens, levies and
7collection actions with regard to assessed and unpaid
8liabilities under that Act, including the periods for taking
9any action, shall apply.
10    (e) An employer who has overpaid a penalty assessed under
11this Section may file a claim for refund with the Department. A
12claim shall be in writing in such form as the Department may by
13rule prescribe and shall state the specific grounds upon which
14it is founded. As soon as practicable after a claim for refund
15is filed, the Department shall examine it and either issue a
16refund or issue a notice of denial. If such a protest is filed,
17the Department shall reconsider the denial and grant the
18employer a hearing. As soon as practicable after such
19reconsideration and hearing, the Department shall issue a
20notice of decision to the employer. The notice shall set forth
21briefly the Department's findings of fact and the basis of
22decision in each case decided in whole or in part adversely to
23the employer. A denial of a claim for refund becomes final 90
24days after the date of issuance of the notice of the denial
25except for such amounts denied as to which the employer has
26filed a protest with the Department. If a protest has been



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1timely filed, the decision of the Department shall become
3        (1) if no action for review of the decision is
4    commenced under the Administrative Review Law, on the date
5    on which the time for commencement of such review has
6    expired; or
7        (2) if a timely action for review of the decision is
8    commenced under the Administrative Review Law, on the date
9    all proceedings in court for the review of such assessment
10    have terminated or the time for the taking thereof has
11    expired without such proceedings being instituted.
12    (f) No notice of proposed assessment may be issued with
13respect to a calendar year after June 30 of the fourth
14subsequent calendar year. No claim for refund may be filed more
15than 1 year after the date of payment of the amount to be
17    (g) The provisions of the Administrative Review Law and the
18rules adopted pursuant to it shall apply to and govern all
19proceedings for the judicial review of final decisions of the
20Department in response to a protest filed by the employer under
21subsections (c) and (e) of this Section. Final decisions of the
22Department shall constitute "administrative decisions" as
23defined in Section 3-101 of the Code of Civil Procedure. The
24Department may adopt any rules necessary to carry out its
25duties pursuant to this Section.
26    (h) Whenever notice is required by this Section, it may be



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1given or issued by mailing it by first-class mail addressed to
2the person concerned at his or her last known address or in an
3electronic format as determined by the Department.
4    (i) All books and records and other papers and documents
5relevant to the determination of any penalty due under this
6Section shall, at all times during business hours of the day,
7be subject to inspection by the Department or its duly
8authorized agents and employees.
9    (j) The Department may require employers to report
10information relevant to their compliance with this Act on
11returns otherwise due from the employers under Section 704A of
12the Illinois Income Tax Act and failure to provide the
13requested information on a return shall cause such return to be
14treated as unprocessable.
15    (k) For purposes of any provision of State law allowing the
16Department or any other agency of this State to offset an
17amount owed to a taxpayer against a tax liability of that
18taxpayer or allowing the Department to offset an overpayment of
19tax against any liability owed to the State, a penalty assessed
20under this Section shall be deemed to be a tax liability of the
21employer and any refund due to an employer shall be deemed to
22be an overpayment of tax of the employer.
23    (l) Except as provided in this subsection, all information
24received by the Department from returns filed by an employer or
25from any investigation conducted under the provisions of this
26Act shall be confidential, except for official purposes within



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1the Department or pursuant to official procedures for
2collection of penalties assessed under this Act. Nothing
3contained in this subsection shall prevent the Director from
4publishing or making available to the public reasonable
5statistics concerning the operation of this Act wherein the
6contents of returns are grouped into aggregates in such a way
7that the specific information of any employer shall not be
8disclosed. Nothing contained in this subsection shall prevent
9the Director from divulging information to an authorized
10representative of the employer or to any person pursuant to a
11request or authorization made by the employer or by an
12authorized representative of the employer.
13    (m) Civil penalties collected under this Act and fees
14collected pursuant to subsection (n) of this Section shall be
15deposited into the Tax Compliance and Administration Fund. The
16Department may, subject to appropriation, use moneys in the
17fund to cover expenses it incurs in the performance of its
18duties under this Act. Interest attributable to moneys in the
19Tax Compliance and Administration Fund shall be credited to the
20Tax Compliance and Administration Fund.
21    (n) The Department may charge the Board a reasonable fee
22for its costs in performing its duties under this Section to
23the extent that such costs have not been recovered from
24penalties imposed under this Section.
25    (o) By January 1, 2021, This Section shall become operative
269 months after the Board notifies the Director that the Program



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1has been implemented. Upon receipt of such notification from
2the Board, the Department shall immediately post on its
3Internet website a notice stating that this Section is
4operative and the date that it is first operative. This notice
5shall include a statement that rather than enrolling employees
6in the Program under this Act, employers may sponsor an
7alternative arrangement, including, but not limited to, a
8defined benefit plan, 401(k) plan, a Simplified Employee
9Pension (SEP) plan, a Savings Incentive Match Plan for
10Employees (SIMPLE) plan, or an automatic enrollment payroll
11deduction IRA offered through a private provider. The Board
12shall provide a link to the vendor Internet website described
13in subsection (i) of Section 60 of this Act, if applicable.
14(Source: P.A. 98-1150, eff. 6-1-15; 99-464, eff. 8-26-15.)".