Bill Text: IL HB3366 | 2017-2018 | 100th General Assembly | Introduced

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Bill Title: Amends the Retailers' Occupation Tax Act. Makes a technical change in a Section concerning credit memorandums and refunds.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Failed) 2019-01-08 - Session Sine Die [HB3366 Detail]

Download: Illinois-2017-HB3366-Introduced.html

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100TH GENERAL ASSEMBLY State of Illinois 2017 and 2018 HB3366 Introduced , by Rep. Elgie R. Sims, Jr. SYNOPSIS AS INTRODUCED:
35 ILCS 120/6 from Ch. 120, par. 445
Amends the Retailers' Occupation Tax Act. Makes a technical change in a Section concerning credit memorandums and refunds.
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A BILL FOR
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AN ACT concerning revenue.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Retailers' Occupation Tax Act is amended by
changing Section 6 as follows:
(35 ILCS 120/6) (from Ch. 120, par. 445)
Sec. 6. Credit memorandum or refund. If it appears, after
claim therefor filed with the the Department, that an amount of
tax or penalty or interest has been paid which was not due
under this Act, whether as the result of a mistake of fact or
an error of law, except as hereinafter provided, then the
Department shall issue a credit memorandum or refund to the
person who made the erroneous payment or, if that person died
or became a person under legal disability, to his or her legal
representative, as such. For purposes of this Section, the tax
is deemed to be erroneously paid by a retailer when the
manufacturer of a motor vehicle sold by the retailer accepts
the return of that automobile and refunds to the purchaser the
selling price of that vehicle as provided in the New Vehicle
Buyer Protection Act. When a motor vehicle is returned for a
refund of the purchase price under the New Vehicle Buyer
Protection Act, the Department shall issue a credit memorandum
or a refund for the amount of tax paid by the retailer under

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this Act attributable to the initial sale of that vehicle.
Claims submitted by the retailer are subject to the same
restrictions and procedures provided for in this Act. If it is
determined that the Department should issue a credit memorandum
or refund, the Department may first apply the amount thereof
against any tax or penalty or interest due or to become due
under this Act or under the Use Tax Act, the Service Occupation
Tax Act, the Service Use Tax Act, any local occupation or use
tax administered by the Department, Section 4 of the Water
Commission Act of 1985, subsections (b), (c) and (d) of Section
5.01 of the Local Mass Transit District Act, or subsections
(e), (f) and (g) of Section 4.03 of the Regional Transportation
Authority Act, from the person who made the erroneous payment.
If no tax or penalty or interest is due and no proceeding is
pending to determine whether such person is indebted to the
Department for tax or penalty or interest, the credit
memorandum or refund shall be issued to the claimant; or (in
the case of a credit memorandum) the credit memorandum may be
assigned and set over by the lawful holder thereof, subject to
reasonable rules of the Department, to any other person who is
subject to this Act, the Use Tax Act, the Service Occupation
Tax Act, the Service Use Tax Act, any local occupation or use
tax administered by the Department, Section 4 of the Water
Commission Act of 1985, subsections (b), (c) and (d) of Section
5.01 of the Local Mass Transit District Act, or subsections
(e), (f) and (g) of Section 4.03 of the Regional Transportation

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Authority Act, and the amount thereof applied by the Department
against any tax or penalty or interest due or to become due
under this Act or under the Use Tax Act, the Service Occupation
Tax Act, the Service Use Tax Act, any local occupation or use
tax administered by the Department, Section 4 of the Water
Commission Act of 1985, subsections (b), (c) and (d) of Section
5.01 of the Local Mass Transit District Act, or subsections
(e), (f) and (g) of Section 4.03 of the Regional Transportation
Authority Act, from such assignee. However, as to any claim for
credit or refund filed with the Department on and after each
January 1 and July 1 no amount of tax or penalty or interest
erroneously paid (either in total or partial liquidation of a
tax or penalty or amount of interest under this Act) more than
3 years prior to such January 1 and July 1, respectively, shall
be credited or refunded, except that if both the Department and
the taxpayer have agreed to an extension of time to issue a
notice of tax liability as provided in Section 4 of this Act,
such claim may be filed at any time prior to the expiration of
the period agreed upon.
No claim may be allowed for any amount paid to the
Department, whether paid voluntarily or involuntarily, if paid
in total or partial liquidation of an assessment which had
become final before the claim for credit or refund to recover
the amount so paid is filed with the Department, or if paid in
total or partial liquidation of a judgment or order of court.
No credit may be allowed or refund made for any amount paid by

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or collected from any claimant unless it appears (a) that the
claimant bore the burden of such amount and has not been
relieved thereof nor reimbursed therefor and has not shifted
such burden directly or indirectly through inclusion of such
amount in the price of the tangible personal property sold by
him or her or in any manner whatsoever; and that no
understanding or agreement, written or oral, exists whereby he
or she or his or her legal representative may be relieved of
the burden of such amount, be reimbursed therefor or may shift
the burden thereof; or (b) that he or she or his or her legal
representative has repaid unconditionally such amount to his or
her vendee (1) who bore the burden thereof and has not shifted
such burden directly or indirectly, in any manner whatsoever;
(2) who, if he or she has shifted such burden, has repaid
unconditionally such amount to his own vendee; and (3) who is
not entitled to receive any reimbursement therefor from any
other source than from his or her vendor, nor to be relieved of
such burden in any manner whatsoever. No credit may be allowed
or refund made for any amount paid by or collected from any
claimant unless it appears that the claimant has
unconditionally repaid, to the purchaser, any amount collected
from the purchaser and retained by the claimant with respect to
the same transaction under the Use Tax Act.
Any credit or refund that is allowed under this Section
shall bear interest at the rate and in the manner specified in
the Uniform Penalty and Interest Act.

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In case the Department determines that the claimant is
entitled to a refund, such refund shall be made only from such
appropriation as may be available for that purpose. If it
appears unlikely that the amount appropriated would permit
everyone having a claim allowed during the period covered by
such appropriation to elect to receive a cash refund, the
Department, by rule or regulation, shall provide for the
payment of refunds in hardship cases and shall define what
types of cases qualify as hardship cases.
If a retailer who has failed to pay retailers' occupation
tax on gross receipts from retail sales is required by the
Department to pay such tax, such retailer, without filing any
formal claim with the Department, shall be allowed to take
credit against such retailers' occupation tax liability to the
extent, if any, to which such retailer has paid an amount
equivalent to retailers' occupation tax or has paid use tax in
error to his or her vendor or vendors of the same tangible
personal property which such retailer bought for resale and did
not first use before selling it, and no penalty or interest
shall be charged to such retailer on the amount of such credit.
However, when such credit is allowed to the retailer by the
Department, the vendor is precluded from refunding any of that
tax to the retailer and filing a claim for credit or refund
with respect thereto with the Department. The provisions of
this amendatory Act shall be applied retroactively, regardless
of the date of the transaction.

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(Source: P.A. 91-901, eff. 1-1-01.)