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91st General Assembly
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Public Act 91-0535

SB799 Enrolled                                 LRB9101226PTpk

    AN ACT to amend the Illinois Income Tax Act  by  changing
Section 1501.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section 5.  The Illinois Income Tax  Act  is  amended  by
changing Section 1501 as follows:

    (35 ILCS 5/1501) (from Ch. 120, par. 15-1501)
    Sec. 1501.  Definitions.
    (a)  In  general.  When  used  in  this  Act,  where  not
otherwise  distinctly  expressed  or  manifestly incompatible
with the intent thereof:
         (1)  Business income.  The  term  "business  income"
    means  income  arising  from transactions and activity in
    the regular course of the taxpayer's trade  or  business,
    net  of  the  deductions  allocable thereto, and includes
    income from  tangible  and  intangible  property  if  the
    acquisition,  management, and disposition of the property
    constitute integral parts of the taxpayer's regular trade
    or  business  operations.  Such  term  does  not  include
    compensation or the deductions allocable thereto.
         (2)  Commercial  domicile.  The   term   "commercial
    domicile"  means the principal place from which the trade
    or business of the taxpayer is directed or managed.
         (3)  Compensation.  The  term  "compensation"  means
    wages,  salaries,  commissions  and  any  other  form  of
    remuneration paid to employees for personal services.
         (4)  Corporation. The  term  "corporation"  includes
    associations,  joint-stock companies, insurance companies
    and  cooperatives.  Any  entity,  including   a   limited
    liability  company  formed  under  the  Illinois  Limited
    Liability  Company Act, shall be treated as a corporation
    if it is so classified for federal income tax purposes.
         (5)  Department. The  term  "Department"  means  the
    Department of Revenue of this State.
         (6)  Director.   The   term   "Director"  means  the
    Director of Revenue of this State.
         (7)  Fiduciary.  The  term   "fiduciary"   means   a
    guardian,  trustee, executor, administrator, receiver, or
    any person acting  in  any  fiduciary  capacity  for  any
    person.
         (8)  Financial organization.
              (A)  The  term  "financial  organization" means
         any  bank,  bank  holding  company,  trust  company,
         savings  bank,  industrial  bank,  land  bank,  safe
         deposit company, private banker,  savings  and  loan
         association,  building  and loan association, credit
         union, currency exchange,  cooperative  bank,  small
         loan  company,  sales  finance  company,  investment
         company,  or  any person which is owned by a bank or
         bank holding  company.   For  the  purpose  of  this
         Section  a  "person" will include only those persons
         which a bank holding company may acquire and hold an
         interest  in,  directly  or  indirectly,  under  the
         provisions of the Bank Holding Company Act  of  1956
         (12 U.S.C. 1841, et seq.), except where interests in
         any  person  must  be  disposed  of  within  certain
         required  time limits under the Bank Holding Company
         Act of 1956.
              (B)  For purposes of subparagraph (A)  of  this
         paragraph,  the  term "bank" includes (i) any entity
         that is regulated by the Comptroller of the Currency
         under the National  Bank  Act,  or  by  the  Federal
         Reserve  Board,  or by the Federal Deposit Insurance
         Corporation  and  (ii)  any   federally   or   State
         chartered bank operating as a credit card bank.
              (C)  For  purposes  of subparagraph (A) of this
         paragraph, the term "sales finance company" has  the
         meaning  provided in the following item (i) or (ii):
         means
                   (i)  A person primarily engaged in one  or
              more of the following businesses:  the business
              of   purchasing   customer   receivables,   the
              business  of  or making loans upon the security
              of customer receivables, the business of making
              loans  for  the  express  purpose  of   funding
              purchases  of  tangible  personal  property  or
              services  by  the  borrower, or the business of
              finance leasing.  For  purposes  of  this  item
              (i), "customer receivable" means:
                   (a)  a   retail  installment  contract  or
              retail charge agreement within the  meaning  of
              the   Sales  Finance  Agency  Act,  the  Retail
              Installment Sales Act,  or  the  Motor  Vehicle
              Retail Installment Sales Act;
                   (b)  an  installment,  charge,  credit, or
              similar contract or agreement arising from  the
              sale  of tangible personal property or services
              in a transaction involving a  deferred  payment
              price  payable  in  one  or  more  installments
              subsequent to the sale; or
                   (c)  the outstanding balance of a contract
              or agreement described in provisions (a) or (b)
              of this item (i).
              A  customer  receivable  need  not  provide for
              payment of interest on  deferred  payments.   A
              sales  finance  company may purchase a customer
              receivable from, or make a loan  secured  by  a
              customer  receivable  to,  the  seller  in  the
              original   transaction   or  to  a  person  who
              purchased the customer receivable  directly  or
              indirectly from that seller.
                   (ii)  A  corporation  meeting  each of the
              following criteria:
                   (a)  the corporation must be a  member  of
              an  "affiliated  group"  within  the meaning of
              Section 1504(a) of the Internal  Revenue  Code,
              determined without regard to Section 1504(b) of
              the Internal Revenue Code;
                   (b)  more  than 50% of the gross income of
              the corporation for the taxable  year  must  be
              interest  income derived from qualifying loans.
              A "qualifying loan" is a loan made to a  member
              of  the  corporation's  affiliated  group  that
              originates  customer  receivables  (within  the
              meaning  of  item  (i))  or  to  whom  customer
              receivables  originated  by  a  member  of  the
              affiliated  group have been transferred, to the
              extent the average outstanding balance of loans
              from  that  corporation  to  members   of   its
              affiliated group during the taxable year do not
              exceed   the   limitation   amount   for   that
              corporation.   The  "limitation  amount"  for a
              corporation is the average outstanding balances
              during the taxable year of customer receivables
              (within the meaning of item (i)) originated  by
              all  members  of  the affiliated group.  If the
              average outstanding balances of the loans  made
              by  a  corporation to members of its affiliated
              group  exceed  the   limitation   amount,   the
              interest   income   of  that  corporation  from
              qualifying loans shall be equal to its interest
              income from loans to members of its  affiliated
              groups times a fraction equal to the limitation
              amount   divided  by  the  average  outstanding
              balances of the loans made by that  corporation
              to members of its affiliated group;
                   (c)  the total of all shareholder's equity
              (including, without limitation, paid-in capital
              on  common  and  preferred  stock  and retained
              earnings) of the corporation plus the total  of
              all   of   its   loans,   advances,  and  other
              obligations payable or owed to members  of  its
              affiliated  group  may  not  exceed  20% of the
              total assets of the  corporation  at  any  time
              during the tax year; and
                   (d)  more than 50% of all interest-bearing
              obligations  of the affiliated group payable to
              persons  outside  the   group   determined   in
              accordance  with  generally accepted accounting
              principles   must   be   obligations   of   the
              corporation.
         This amendatory Act of the 91st General Assembly  is
    declaratory of existing law. retail installment contracts
    or  retail  charge agreements or the outstanding balances
    under such contracts or agreements.   The  term  includes
    but  is  not  limited  to  persons: (i) to whom the Sales
    Finance Agency Act is rendered inapplicable by subsection
    (b) of Section 17 thereof; (ii) engaged in consumer sales
    finance activities governed by the Sales  Finance  Agency
    Act or that would be governed by that Act if conducted in
    this  State;  (iii) engaged in activities governed by the
    Retail Installment Sales Act,  including  the  making  or
    purchasing  of  retail  installment  contracts  or retail
    charge agreements for "goods" or "services" as defined in
    that Act, or activities that would be  governed  by  that
    Act   if   conducted  in  this  State;  (iv)  engaged  in
    activities  governed  by   the   Motor   Vehicle   Retail
    Installment  Sales  Act or that would be governed by that
    Act if conducted in this State; (v) engaged in commercial
    finance  activities  governed  by  the  Illinois  Uniform
    Commercial Code or that would be governed by that Code if
    conducted in this State; or (vi) engaged in  the  finance
    leasing  of  tangible  personal  property  where "finance
    leasing" is activity that is the economic  equivalent  of
    an  extension  of  credit  and  for which a deduction for
    depreciation under Section 167 of  the  Internal  Revenue
    Code of 1986 is not available to a lessor.
              (D)  Subparagraphs   (B)   and   (C)   of  this
         paragraph are declaratory of existing law and  apply
         retroactively,  for  all  tax  years beginning on or
         before December 31, 1996,  to all original  returns,
         to  all  amended returns filed no later than 30 days
         after the effective date of this amendatory  Act  of
         1996,  and  to  all  notices issued on or before the
         effective date of this amendatory Act of 1996  under
         subsection  (a)  of  Section  903, subsection (a) of
         Section 904,  subsection  (e)  of  Section  909,  or
         Section   912.  A  taxpayer  that  is  a  "financial
         organization" that engages in any  transaction  with
         an affiliate shall be a "financial organization" for
         all purposes of this Act.
              (E)  For  all  tax years beginning on or before
         December 31, 1996, a taxpayer that falls within  the
         definition   of  a  "financial  organization"  under
         subparagraphs (B) or (C) of this paragraph, but  who
         does  not fall within the definition of a "financial
         organization" under the Proposed Regulations  issued
         by  the  Department of Revenue on July 19, 1996, may
         irrevocably elect to apply the Proposed  Regulations
         for  all  of  those  years  as  though  the Proposed
         Regulations had been lawfully promulgated,  adopted,
         and  in effect for all of those years.  For purposes
         of  applying  subparagraphs  (B)  or  (C)  of   this
         paragraph  to  all  of  those  years,  the  election
         allowed  by  this  subparagraph  applies only to the
         taxpayer making the election and to those members of
         the  taxpayer's  unitary  business  group  who   are
         ordinarily  required  to  apportion  business income
         under the same subsection of Section 304 of this Act
         as the taxpayer making the  election.   No  election
         allowed  by  this subparagraph shall be made under a
         claim filed under subsection (d) of Section 909 more
         than 30  days  after  the  effective  date  of  this
         amendatory Act of 1996.
              (F)  Finance  Leases.   For  purposes  of  this
         subsection,  a  finance  lease shall be treated as a
         loan or other extension of credit, rather than as  a
         lease,   regardless   of   how  the  transaction  is
         characterized for any other purpose,  including  the
         purposes  of  any  regulatory  agency  to  which the
         lessor  is  subject.    A  finance  lease   is   any
         transaction  in  the  form  of  a lease in which the
         lessee is treated as the owner of the  leased  asset
         entitled  to  any deduction for depreciation allowed
         under Section 167 of the Internal Revenue Code.
         (9)  Fiscal year. The term "fiscal  year"  means  an
    accounting  period of 12 months ending on the last day of
    any month other than December.
         (10)  Includes and including. The  terms  "includes"
    and  "including"  when  used in a definition contained in
    this Act shall not be  deemed  to  exclude  other  things
    otherwise within the meaning of the term defined.
         (11)  Internal  Revenue  Code.  The  term  "Internal
    Revenue  Code"  means  the United States Internal Revenue
    Code of 1954 or any successor law  or  laws  relating  to
    federal income taxes in effect for the taxable year.
         (12)  Mathematical  error.  The  term  "mathematical
    error" includes the following types of errors, omissions,
    or defects in a return filed by a taxpayer which prevents
    acceptance of the return as filed for processing:
              (A)  arithmetic     errors     or     incorrect
         computations on the return or supporting schedules;
              (B)  entries on the wrong lines;
              (C)  omission  of  required supporting forms or
         schedules or the  omission  of  the  information  in
         whole or in part called for thereon; and
              (D)  an  attempt  to claim, exclude, deduct, or
         improperly report, in a manner directly contrary  to
         the provisions of the Act and regulations thereunder
         any item of income, exemption, deduction, or credit.
         (13)  Nonbusiness   income.  The  term  "nonbusiness
    income" means all income other than  business  income  or
    compensation.
         (14)  Nonresident.  The  term  "nonresident" means a
    person who is not a resident.
         (15)  Paid, incurred and accrued. The terms  "paid",
    "incurred"  and "accrued" shall be construed according to
    the method of accounting upon  the  basis  of  which  the
    person's base income is computed under this Act.
         (16)  Partnership     and    partner.    The    term
    "partnership" includes a syndicate,  group,  pool,  joint
    venture  or other unincorporated organization, through or
    by means of which any business, financial  operation,  or
    venture  is  carried  on,  and  which  is not, within the
    meaning of this Act, a trust or estate or a  corporation;
    and   the  term  "partner"  includes  a  member  in  such
    syndicate, group, pool, joint venture or organization.
         Any entity, including a  limited  liability  company
    formed  under the Illinois Limited Liability Company Act,
    shall be treated as a partnership if it is so  classified
    for federal income tax purposes.
         For purposes of the tax imposed at subsection (c) of
    Section  201 of this Act, the term "partnership" does not
    include a syndicate, group, pool, joint venture or  other
    unincorporated  organization  established  for  the  sole
    purpose of playing the Illinois State Lottery.
         (17)  Part-year   resident.   The   term  "part-year
    resident" means  an  individual  who  became  a  resident
    during the taxable year or ceased to be a resident during
    the  taxable  year.  Under  Section 1501 (a) (20) (A) (i)
    residence commences with presence in this State for other
    than a temporary or transitory purpose  and  ceases  with
    absence  from  this  State  for other than a temporary or
    transitory purpose. Under Section 1501 (a) (20) (A)  (ii)
    residence commences with the establishment of domicile in
    this  State and ceases with the establishment of domicile
    in another State.
         (18)  Person. The term "person" shall  be  construed
    to  mean  and  include  an  individual,  a trust, estate,
    partnership,  association,  firm,  company,  corporation,
    limited liability company, or fiduciary. For purposes  of
    Section  1301  and 1302 of this Act, a "person" means (i)
    an individual, (ii)  a  corporation,  (iii)  an  officer,
    agent, or employee of a corporation, (iv) a member, agent
    or  employee  of a partnership, or (v) a member, manager,
    employee,  officer,  director,  or  agent  of  a  limited
    liability company who in such capacity commits an offense
    specified in Section 1301 and 1302.
         (18A)  Records.  The  term  "records"  includes  all
    data  maintained  by  the  taxpayer,  whether  on  paper,
    microfilm,  microfiche,  or  any type of machine-sensible
    data compilation.
         (19)  Regulations. The term  "regulations"  includes
    rules promulgated and forms prescribed by the Department.
         (20)  Resident. The term "resident" means:
              (A)  an individual (i) who is in this State for
         other  than a temporary or transitory purpose during
         the taxable year; or (ii) who is domiciled  in  this
         State  but  is absent from the State for a temporary
         or transitory purpose during the taxable year;
              (B)  The estate of a decedent who at his or her
         death was domiciled in this State;
              (C)  A trust created by a will  of  a  decedent
         who at his death was domiciled in this State; and
              (D)  An irrevocable trust, the grantor of which
         was  domiciled  in this State at the time such trust
         became   irrevocable.   For    purpose    of    this
         subparagraph,    a   trust   shall   be   considered
         irrevocable to the extent that the  grantor  is  not
         treated  as  the  owner  thereof  under Sections 671
         through 678 of the Internal Revenue Code.
         (21)  Sales.  The  term  "sales"  means  all   gross
    receipts  of  the  taxpayer  not allocated under Sections
    301, 302 and 303.
         (22)  State. The term  "state"  when  applied  to  a
    jurisdiction other than this State means any state of the
    United States, the District of Columbia, the Commonwealth
    of Puerto Rico, any Territory or Possession of the United
    States,   and  any  foreign  country,  or  any  political
    subdivision of any of the foregoing.  For purposes of the
    foreign tax credit under Section 601,  the  term  "state"
    means  any  state  of  the United States, the District of
    Columbia,  the  Commonwealth  of  Puerto  Rico,  and  any
    territory or possession of  the  United  States,  or  any
    political  subdivision of any of the foregoing, effective
    for tax years ending on or after December 31, 1989.
         (23)  Taxable year. The term  "taxable  year"  means
    the  calendar year, or the fiscal year ending during such
    calendar year, upon the basis of which the base income is
    computed under this Act. "Taxable  year"  means,  in  the
    case  of  a  return  made for a fractional part of a year
    under the provisions of this Act, the  period  for  which
    such return is made.
         (24)  Taxpayer. The term "taxpayer" means any person
    subject to the tax imposed by this Act.
         (25)  International   banking  facility.   The  term
    international  banking  facility  shall  have  the   same
    meaning as is set forth in the Illinois Banking Act or as
    is  set  forth  in  the  laws  of  the  United  States or
    regulations of the Board  of  Governors  of  the  Federal
    Reserve System.
         (26)  Income Tax Return Preparer.
              (A)  The  term  "income  tax  return  preparer"
         means  any  person who prepares for compensation, or
         who employs one  or  more  persons  to  prepare  for
         compensation,  any return of tax imposed by this Act
         or any claim for refund of tax imposed by this  Act.
         The preparation of a substantial portion of a return
         or   claim  for  refund  shall  be  treated  as  the
         preparation of that return or claim for refund.
              (B)  A person  is  not  an  income  tax  return
         preparer if all he or she does is
                   (i)  furnish typing, reproducing, or other
              mechanical assistance;
                   (ii)  prepare   returns   or   claims  for
              refunds for the employer by whom he or  she  is
              regularly and continuously employed;
                   (iii)  prepare  as  a fiduciary returns or
              claims for refunds for any person; or
                   (iv)  prepare claims  for  refunds  for  a
              taxpayer   in   response   to   any  notice  of
              deficiency  issued  to  that  taxpayer  or   in
              response to any waiver of restriction after the
              commencement of an audit of that taxpayer or of
              another  taxpayer  if  a  determination  in the
              audit  of  the  other  taxpayer   directly   or
              indirectly  affects  the  tax  liability of the
              taxpayer whose claims he or she is preparing.
         (27)  Unitary business  group.   The  term  "unitary
    business  group" means a group of persons related through
    common ownership whose business activities are integrated
    with, dependent upon and contribute to each  other.   The
    group  will  not  include  those  members  whose business
    activity outside the United States is 80% or more of  any
    such  member's  total  business activity; for purposes of
    this paragraph and clause (a) (3)  (B)  (ii)  of  Section
    304,  business activity within the United States shall be
    measured by means of the  factors  ordinarily  applicable
    under  subsections  (a), (b), (c), (d), or (h) of Section
    304 except  that,  in  the  case  of  members  ordinarily
    required  to  apportion business income by means of the 3
    factor formula of property, payroll and  sales  specified
    in  subsection  (a) of Section 304, including the formula
    as weighted  in  subsection  (h)  of  Section  304,  such
    members shall not use the sales factor in the computation
    and  the  results  of  the  property  and  payroll factor
    computations of subsection (a) of Section  304  shall  be
    divided  by  2  (by one if either the property or payroll
    factor  has  a  denominator  of  zero).  The  computation
    required by the preceding sentence shall, in  each  case,
    involve  the  division of the member's property, payroll,
    or revenue miles in the United States, insurance premiums
    on property or risk in the United  States,  or  financial
    organization  business  income  from  sources  within the
    United States, as the case  may  be,  by  the  respective
    worldwide  figures  for  such items.  Common ownership in
    the case  of  corporations  is  the  direct  or  indirect
    control  or ownership of more than 50% of the outstanding
    voting stock of the persons carrying on unitary  business
    activity.   Unitary  business  activity can ordinarily be
    illustrated where the activities of the members are:  (1)
    in  the  same  general  line  (such   as   manufacturing,
    wholesaling,  retailing  of  tangible  personal property,
    insurance, transportation or finance); or (2)  are  steps
    in a vertically structured enterprise or process (such as
    the   steps   involved   in  the  production  of  natural
    resources,  which  might  include  exploration,   mining,
    refining,  and  marketing);  and, in either instance, the
    members are functionally integrated through the  exercise
    of  strong  centralized  management  (where, for example,
    authority over such matters as purchasing, financing, tax
    compliance,  product  line,  personnel,   marketing   and
    capital  investment  is  not  left to each member). In no
    event, however, will any unitary business  group  include
    members   which  are  ordinarily  required  to  apportion
    business income under different  subsections  of  Section
    304 except that for tax years ending on or after December
    31,  1987  this  prohibition shall not apply to a unitary
    business group composed of one or more taxpayers  all  of
    which  apportion  business  income pursuant to subsection
    (b) of Section 304, or all of  which  apportion  business
    income  pursuant  to subsection (d) of Section 304, and a
    holding company  of  such  single-factor  taxpayers  (see
    definition of "financial organization" for rule regarding
    holding  companies  of  financial  organizations).   If a
    unitary business  group  would,  but  for  the  preceding
    sentence, include members that are ordinarily required to
    apportion  business income under different subsections of
    Section 304, then for each subsection of Section 304  for
    which  there  are  two  or more members, there shall be a
    separate unitary business group composed of such members.
    For purposes of the preceding two sentences, a member  is
    "ordinarily  required to apportion business income" under
    a particular subsection of Section 304  if  it  would  be
    required  to  use  the apportionment method prescribed by
    such subsection except  for  the  fact  that  it  derives
    business  income  solely  from  Illinois.  If the unitary
    business group members' accounting  periods  differ,  the
    common  parent's  accounting  period  or,  if there is no
    common parent, the accounting period of the  member  that
    is  expected  to have, on a recurring basis, the greatest
    Illinois income tax liability must be used  to  determine
    whether  to  use  the  apportionment  method  provided in
    subsection (a) or subsection (h)  of  Section  304.   The
    prohibition  against  membership  in  a  unitary business
    group for  taxpayers  ordinarily  required  to  apportion
    income  under  different  subsections of Section 304 does
    not apply to taxpayers required to apportion income under
    subsection (a) and subsection (h) of  Section  304.   The
    provisions  of  this  amendatory Act of 1998 apply to tax
    years ending on or after December 31, 1998.
         (28)  Subchapter   S    corporation.     The    term
    "Subchapter  S corporation" means a corporation for which
    there is in effect an election under Section 1362 of  the
    Internal  Revenue  Code,  or for which there is a federal
    election to opt out of the provisions of the Subchapter S
    Revision Act of 1982 and have applied instead  the  prior
    federal Subchapter S rules as in effect on July 1, 1982.

    (b)  Other definitions.
         (1)  Words  denoting  number,  gender, and so forth,
    when used in this Act,  where  not  otherwise  distinctly
    expressed  or  manifestly  incompatible  with  the intent
    thereof:
              (A)  Words importing the singular  include  and
         apply to several persons, parties or things;
              (B)  Words  importing  the  plural  include the
         singular; and
              (C)  Words  importing  the   masculine   gender
         include the feminine as well.
         (2)  "Company"   or   "association"   as   including
    successors   and   assigns.   The   word   "company"   or
    "association",  when  used in reference to a corporation,
    shall be deemed to  embrace  the  words  "successors  and
    assigns  of  such  company  or  association", and in like
    manner as if these last-named words, or words of  similar
    import, were expressed.
         (3)  Other  terms.  Any  term used in any Section of
    this Act with  respect  to  the  application  of,  or  in
    connection  with,  the provisions of any other Section of
    this Act shall have the same meaning  as  in  such  other
    Section.
(Source:  P.A.  89-399,  eff.  8-20-95; 89-711, eff. 2-14-97;
90-613, eff. 7-9-98.)

    Section 99.  Effective date.  This Act  takes  effect  on
January 1, 2000.

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