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91_HB1976
LRB9103932PTdv
1 AN ACT to create the Home Rule Integrity Act, repealing
2 certain home rule preemptions and amending named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Home Rule Integrity Act.
7 Section 95. The Illinois Municipal Code is amended by
8 changing Sections 8-3-19, 8-11-6a, and 8-11-6b as follows:
9 (65 ILCS 5/8-3-19)
10 Sec. 8-3-19. Home rule real estate transfer taxes.
11 (a) After the effective date of this amendatory Act of
12 1996 and subject to this Section, a home rule municipality
13 may impose or may increase a tax or other fee on the
14 privilege of transferring title to real estate, as
15 represented by the deed that is filed for recordation, and on
16 the privilege of transferring a beneficial interest in a land
17 trust holding legal title to real property, as represented by
18 the trust document that is filed for recordation. A tax or
19 other fee on the privilege of transferring title to real
20 estate, as represented by the deed that is filed for
21 recordation, and on the privilege of transferring a
22 beneficial interest in a land trust holding legal title to
23 real property, as represented by the trust document that is
24 filed for recordation, shall hereafter be referred to as a
25 real estate transfer tax.
26 (b) Before adopting a resolution to submit the question
27 of imposing or increasing a real estate transfer tax to
28 referendum, the corporate authorities shall give public
29 notice of and hold a public hearing on the intent to submit
30 the question to referendum. This hearing may be part of a
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1 regularly scheduled meeting of the corporate authorities.
2 The notice shall be published not more than 30 nor less than
3 10 days prior to the hearing in a newspaper of general
4 circulation within the municipality. The notice shall be
5 published in the following form:
6 Notice of Proposed (Increased) Real Estate Transfer
7 Tax for (commonly known name of municipality).
8 A public hearing on a resolution to submit to
9 referendum the question of a proposed (increased) real
10 estate transfer tax for (legal name of the municipality)
11 in an amount of (rate) to be paid by the buyer (seller)
12 of the real estate transferred will be held on (date) at
13 (time) at (location). The current rate of real estate
14 transfer tax imposed by (name of municipality) is (rate).
15 Any person desiring to appear at the public hearing
16 and present testimony to the taxing district may do so.
17 (c) A notice that includes any information not specified
18 and required by this Section is an invalid notice. All
19 hearings shall be open to the public. At the public hearing,
20 the corporate authorities of the municipality shall explain
21 the reasons for the proposed or increased real estate
22 transfer tax and shall permit persons desiring to be heard an
23 opportunity to present testimony within reasonable time
24 limits determined by the corporate authorities. A copy of the
25 proposed ordinance shall be made available to the general
26 public for inspection before the public hearing.
27 (d) No home rule municipality shall impose a new real
28 estate transfer tax after the effective date of this
29 amendatory Act of 1996 without prior approval by referendum.
30 No home rule municipality shall impose an increase of the
31 rate of a current real estate transfer tax without prior
32 approval by referendum. A home rule municipality may impose
33 a new real estate transfer tax or may increase an existing
34 real estate transfer tax with prior referendum approval. The
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1 referendum shall be conducted as provided in subsection (e).
2 (e) The home rule municipality shall, by resolution,
3 provide for submission of the proposition to the voters. The
4 home rule municipality shall certify the resolution and the
5 proposition to the proper election officials in accordance
6 with the general election law. If the proposition is to
7 impose a new real estate transfer tax, it shall be in
8 substantially the following form: "Shall (name of
9 municipality) impose a real estate transfer tax at a rate of
10 (rate) to be paid by the buyer (seller) of the real estate
11 transferred, with the revenue of the proposed transfer tax to
12 be used for (purpose)?". If the proposition is to increase
13 an existing real estate transfer tax, it shall be in the
14 following form: "Shall (name of municipality) impose a real
15 estate transfer tax increase of (percent increase) to
16 establish a new transfer tax rate of (rate) to be paid by the
17 buyer (seller) of the real estate transferred? The current
18 rate of the real estate transfer tax is (rate), and the
19 revenue is used for (purpose). The revenue from the increase
20 is to be used for (purpose).".
21 If a majority of the electors voting on the proposition
22 vote in favor of it, the municipality may impose or increase
23 the municipal real estate transfer tax or fee.
24 (f) Nothing in this amendatory Act of 1996 shall limit
25 the purposes for which real estate transfer tax revenues may
26 be collected or expended.
27 (g) A home rule municipality may not impose real estate
28 transfer taxes other than as authorized by this Section. This
29 Section is a denial and limitation of home rule powers and
30 functions under subsection (g) of Section 6 of Article VII of
31 the Illinois Constitution.
32 (Source: P.A. 89-701, eff. 1-17-97.)
33 (65 ILCS 5/8-11-6a) (from Ch. 24, par. 8-11-6a)
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1 Sec. 8-11-6a. Home rule municipalities; preemption of
2 certain taxes. Except as provided in Sections 8-11-1,
3 8-11-5, 8-11-6, and 8-11-6b of this Code on and after
4 September 1, 1990, no home rule municipality has the
5 authority to impose, pursuant to its home rule authority, a
6 retailer's occupation tax, service occupation tax, use tax,
7 sales tax or other tax on the use, sale or purchase of
8 tangible personal property based on the gross receipts from
9 such sales or the selling or purchase price of said tangible
10 personal property. Notwithstanding the foregoing, this
11 Section does not preempt any home rule imposed tax such as
12 the following: (1) a tax on alcoholic beverages, whether
13 based on gross receipts, volume sold or any other
14 measurement; (2) a tax based on the number of units of
15 cigarettes or tobacco products (provided, however, that a
16 home rule municipality that has not imposed a tax based on
17 the number of units of cigarettes or tobacco products before
18 July 1, 1993, shall not impose such a tax after that date);
19 (3) a tax, however measured, based on the use of a hotel or
20 motel room or similar facility; (4) a tax, however measured,
21 on the sale or transfer of real property; (5) a tax, however
22 measured, on lease receipts; (6) a tax on food prepared for
23 immediate consumption and on alcoholic beverages sold by a
24 business which provides for on premise consumption of said
25 food or alcoholic beverages; or (7) other taxes not based on
26 the selling or purchase price or gross receipts from the use,
27 sale or purchase of tangible personal property. This Section
28 is not intended to affect any existing tax on food and
29 beverages prepared for immediate consumption on the premises
30 where the sale occurs, or any existing tax on alcoholic
31 beverages, or any existing tax imposed on the charge for
32 renting a hotel or motel room, which was in effect January
33 15, 1988, or any extension of the effective date of such an
34 existing tax by ordinance of the municipality imposing the
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1 tax, which extension is hereby authorized, in any non-home
2 rule municipality in which the imposition of such a tax has
3 been upheld by judicial determination, nor is this Section
4 intended to preempt the authority granted by Public Act
5 85-1006. This Section is a limitation, pursuant to subsection
6 (g) of Section 6 of Article VII of the Illinois Constitution,
7 on the power of home rule units to tax.
8 (Source: P.A. 88-507; 88-527; 88-670, eff. 12-2-94.)
9 (65 ILCS 5/8-11-6b)
10 Sec. 8-11-6b. Home rule soft drink taxes.
11 (a) Except as provided in Sections 8-11-1, 8-11-5 and
12 8-11-6 of this Code, or as provided in this Section, no home
13 rule municipality has the authority to impose, pursuant to
14 its home rule authority, a tax on the sale, purchase, or use
15 of soft drinks regardless of whether the measure of the tax
16 is selling price, purchase price, gross receipts, unit of
17 volumetric measure, or any other measure. For purposes of
18 this subsection, the term "soft drink" has the meaning set
19 forth in Section 2-10 of the Retailers' Occupation Tax Act,
20 as may be amended from time to time, except that the term
21 shall not be limited to drinks contained in a closed or
22 sealed bottle, can, carton, or container. This Section is a
23 denial and limitation, under subsection (g) of Section 6 of
24 Article VII of the Illinois Constitution, on the power of
25 home rule units to tax.
26 (b) The corporate authorities of a home rule
27 municipality with a population in excess of 1,000,000 may
28 impose a tax, which shall not take effect prior to April 1,
29 1994, upon all persons engaged in the business of selling
30 soft drinks (other than fountain soft drinks) at retail in
31 the municipality based on the gross receipts from those sales
32 made in the course of such business. If imposed, the tax
33 shall only be in 1/4% increments and shall not exceed 3%. For
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1 purposes of this subsection, the term "soft drink" has the
2 meaning set forth in Section 2-10 of the Retailers'
3 Occupation Tax Act, as may be amended from time to time,
4 except that the term shall not be limited to drinks contained
5 in a closed or sealed bottle, can, carton or container; the
6 term "fountain soft drinks" means soft drinks which are
7 prepared by the retail seller of the soft drinks by mixing
8 syrup or concentrate with water, by hand or through a soft
9 drink dispensing machine, at or near the point and time of
10 sale to the retail purchaser; and the term "soft drink
11 dispensing machine" means a device which mixes soft drink
12 syrup or concentrate with water and dispenses the mixture
13 into an open container as a ready to drink soft drink.
14 The tax imposed under this subsection and all civil
15 penalties that may be assessed as an incident to that tax
16 shall be collected and enforced by the Illinois Department of
17 Revenue. The Department shall have full power to administer
18 and enforce this subsection, to collect all taxes and
19 penalties so collected in the manner provided in this
20 subsection, and to determine all rights to credit memoranda
21 arising on account of the erroneous payment of tax or penalty
22 under this subsection. In the administration of and
23 compliance with this subsection, the Department and persons
24 who are subject to this subsection shall have the same
25 rights, remedies, privileges, immunities, powers and duties,
26 shall be subject to the same conditions, restrictions,
27 limitations, penalties, exclusions, exemptions, and
28 definitions of terms, and shall employ the same modes of
29 procedure applicable to the Retailers' Occupation Tax as are
30 prescribed in Sections 1, 2 through 2-65 (in respect to all
31 provisions of those Sections other than the State rate of
32 taxes), 2c, 2h, 2i, 3 (except as to the disposition of taxes
33 and penalties collected), 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g,
34 5i, 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, 11, 12, 13 and, until
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1 January 1, 1994, 13.5 of the Retailers' Occupation Tax Act,
2 and on and after January 1, 1994, all applicable provisions
3 of the Uniform Penalty and Interest Act that are not
4 inconsistent with this subsection, as fully as if provisions
5 contained in those Sections of the Retailers' Occupation Tax
6 Act were set forth in this subsection.
7 Persons subject to any tax imposed under the authority
8 granted by this subsection may reimburse themselves for their
9 seller's tax liability under this subsection by separately
10 stating that tax as an additional charge, which charge may be
11 stated in combination, in a single amount, with State taxes
12 that sellers are required to collect under the Use Tax Act
13 pursuant to bracket schedules as the Department may
14 prescribe. The retailer filing the return shall, at the time
15 of filing the return, pay to the Department the amount of tax
16 imposed under this subsection, less the discount of 1.75%,
17 which is allowed to reimburse the retailer for the expenses
18 incurred in keeping records, preparing the filing returns,
19 remitting the tax, and supplying data to the Department on
20 request.
21 Whenever the Department determines that a refund should
22 be made under this subsection to a claimant instead of
23 issuing a credit memoranda, the Department shall notify the
24 State Comptroller, who shall cause a warrant to be drawn for
25 the amount specified and to the person named in the
26 notification from the Department. The refund shall be paid
27 by the State Treasurer out of the Home Rule Municipal Soft
28 Drink Retailers' Occupation Tax Fund.
29 The Department shall forthwith pay over to the State
30 Treasurer, ex officio, as trustee, all taxes and penalties
31 collected hereunder. On or before the 25th day of each
32 calendar month, the Department shall prepare and certify to
33 the Comptroller the amount to be paid to named
34 municipalities, the municipalities to be those from which
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1 retailers have paid taxes or penalties hereunder to the
2 Department during the second preceding calendar month. The
3 amount to be paid to each municipality shall be the amount
4 collected hereunder during the second preceding calendar
5 month by the Department, less any amounts determined by the
6 Department to be necessary for the payment of refunds, and
7 less 4% for the first year the tax is in effect and 2%
8 thereafter of such balance, which sum shall be deposited by
9 the State Treasurer into the Tax Compliance and
10 Administration Fund in the State treasury from which it shall
11 be appropriated to the Department to cover the costs of the
12 Department in administering and enforcing the provisions of
13 this subsection. Within 10 days after receipt by the
14 Comptroller of the certification, the Comptroller shall cause
15 the orders to be drawn for the respective amount in
16 accordance with the directions contained in such
17 certification.
18 Nothing in this Section shall be construed to authorize a
19 municipality to impose a tax upon the privilege of engaging
20 in any business which under the Constitution of the United
21 States may not be made the subject of taxation by the State.
22 A certificate of registration issued by the Illinois
23 Department of Revenue to a retailer under the Retailers'
24 Occupation Tax Act shall permit the registrant to engage in a
25 business that is taxed under the tax imposed under this
26 subsection and no additional registration shall be required
27 under the ordinance imposing a tax or under this subsection.
28 A certified copy of any ordinance imposing or
29 discontinuing any tax under this subsection or effecting a
30 change in the rate of that tax shall be filed with the
31 Department, whereupon the Department shall proceed to
32 administer and enforce this subsection on behalf of such
33 municipality as of the first day of February following the
34 date of filing. This tax shall be known and cited as the
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1 Home Rule Municipal Soft Drink Retailers' Occupation Tax.
2 (c) The corporate authorities of a home rule
3 municipality with a population in excess of 1,000,000 may
4 impose a tax, which shall not take effect prior to April 1,
5 1994, on persons engaged in the business of selling fountain
6 soft drinks at retail at a rate not to exceed 9% of the cost
7 price of the fountain soft drinks at retail in such
8 municipality. For purposes of this subsection, the term
9 "soft drink" has the meaning set forth in Section 2-10 of the
10 Retailers' Occupation Tax Act, as may be amended from time to
11 time, except that the term shall not be limited to drinks
12 contained in a closed or sealed bottle, can, carton, or
13 container; the term "fountain soft drinks" means soft drinks
14 which are prepared by the retail seller of the soft drinks by
15 mixing soft drink syrup or concentrate with water, by hand or
16 through a soft drink dispensing machine at or near the point
17 and time of sale to the retail purchaser; the term "soft
18 drink dispensing machine" means a device which mixes soft
19 drink syrup or concentrate with water and dispenses such
20 mixture into an open container as a ready to drink soft
21 drink; the term "sold at retail" shall mean any transfer of
22 the ownership or title to tangible personal property to a
23 purchaser, for the purpose of use or consumption, and not for
24 the purpose of resale, for valuable consideration; the term
25 "cost price of the fountain soft drinks" means the
26 consideration paid by the retail seller of the fountain soft
27 drink, valued in money, whether paid in money or otherwise,
28 including cash, credits and services, and shall be determined
29 without any deduction on account of the supplier's cost of
30 the property sold or on account or any other expenses
31 incurred by the supplier, for the purchase of soft drink
32 syrup or concentrate which is designed to be further mixed
33 with water before it is consumed as a soft drink; and the
34 term "supplier" means any person who makes sales of soft
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1 drink syrup or concentrate to a retail seller of fountain
2 soft drinks for purposes of resale as fountain soft drinks.
3 The tax authorized by this subsection shall be collected,
4 enforced, and administered by the municipality imposing the
5 tax. Persons subject to the tax may reimburse themselves for
6 their tax liability hereunder by separately stating an amount
7 equal to the tax as an additional charge to their retail
8 purchasers or may include such amount as part of the selling
9 price of the soft drink. The municipality imposing the tax
10 shall provide for its collection from the person subject to
11 the tax by requiring that the supplier to the person subject
12 to the tax collect and remit the tax to the municipality. If
13 the supplier fails to collect the tax or if the person
14 subject to the tax fails to pay the tax to its supplier, the
15 person subject to the tax shall make the tax payment directly
16 to the municipality. Payment of the tax by the retailer to
17 the supplier shall relieve the retailer of any further
18 liability for the tax.
19 (d) If either tax imposed or authorized by this Section
20 8-11-6b is repealed by the General Assembly or has its
21 maximum rate reduced by the General Assembly, or is declared
22 unlawful or unconstitutional on its face by any court of
23 competent jurisdiction after all appeals have been exhausted
24 or the time to appeal has expired, then this Section 8-11-6b
25 is automatically repealed and no longer effective without
26 further action by the General Assembly.
27 (e) Notwithstanding the preemption of taxes on the sale,
28 purchase or use of soft drinks, taxes on the sale, purchase,
29 or use of soft drinks which had been imposed by a
30 municipality prior to the effective date of this amendatory
31 Act of 1993 are specifically authorized under this Section
32 for sales made on or after the effective date of this
33 amendatory Act of 1993 through March 31, 1994.
34 (Source: P.A. 88-507.)