Bill Text: IL HB5632 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Illinois Municipal Code. Makes a technical change in a Section concerning taxes on soft drinks imposed by home rule municipalities.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2010-03-26 - Rule 19(a) / Re-referred to Rules Committee [HB5632 Detail]

Download: Illinois-2009-HB5632-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB5632 Introduced 2/9/2010, by Rep. Tom Cross - Michael G. Connelly SYNOPSIS AS INTRODUCED:
65 ILCS 5/8-11-6b
Amends the Illinois Municipal Code. Makes a technical change in a Section concerning taxes on soft drinks imposed by home rule municipalities.
LRB096 18686 RLJ 34070 b
A BILL FOR
HB5632 LRB096 18686 RLJ 34070 b
AN ACT concerning local government.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Municipal Code is amended by
changing Section 8-11-6b as follows:
(65 ILCS 5/8-11-6b)
Sec. 8-11-6b. Home rule soft drink taxes.
(a) Except as provided in Sections 8-11-1, 8-11-5 and and
8-11-6, or as provided in this Section, no home rule
municipality has the authority to impose, pursuant to its home
rule authority, a tax on the sale, purchase, or use of soft
drinks regardless of whether the measure of the tax is selling
price, purchase price, gross receipts, unit of volumetric
measure, or any other measure. For purposes of this subsection,
the term "soft drink" has the meaning set forth in Section 2-10
of the Retailers' Occupation Tax Act, as may be amended from
time to time, except that the term shall not be limited to
drinks contained in a closed or sealed bottle, can, carton, or
container. This Section is a denial and limitation, under
subsection (g) of Section 6 of Article VII of the Illinois
Constitution, on the power of home rule units to tax.
(b) The corporate authorities of a home rule municipality
with a population in excess of 1,000,000 may impose a tax,

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which shall not take effect prior to April 1, 1994, upon all
persons engaged in the business of selling soft drinks (other
than fountain soft drinks) at retail in the municipality based
on the gross receipts from those sales made in the course of
such business. If imposed, the tax shall only be in 1/4%
increments and shall not exceed 3%. For purposes of this
subsection, the term "soft drink" has the meaning set forth in
Section 2-10 of the Retailers' Occupation Tax Act, as may be
amended from time to time, except that the term shall not be
limited to drinks contained in a closed or sealed bottle, can,
carton or container; the term "fountain soft drinks" means soft
drinks which are prepared by the retail seller of the soft
drinks by mixing syrup or concentrate with water, by hand or
through a soft drink dispensing machine, at or near the point
and time of sale to the retail purchaser; and the term "soft
drink dispensing machine" means a device which mixes soft drink
syrup or concentrate with water and dispenses the mixture into
an open container as a ready to drink soft drink.
The tax imposed under this subsection and all civil
penalties that may be assessed as an incident to that tax shall
be collected and enforced by the Illinois Department of
Revenue. The Department shall have full power to administer and
enforce this subsection, to collect all taxes and penalties so
collected in the manner provided in this subsection, and to
determine all rights to credit memoranda arising on account of
the erroneous payment of tax or penalty under this subsection.

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In the administration of and compliance with this subsection,
the Department and persons who are subject to this subsection
shall have the same rights, remedies, privileges, immunities,
powers and duties, shall be subject to the same conditions,
restrictions, limitations, penalties, exclusions, exemptions,
and definitions of terms, and shall employ the same modes of
procedure applicable to the Retailers' Occupation Tax as are
prescribed in Sections 1, 2 through 2-65 (in respect to all
provisions of those Sections other than the State rate of
taxes), 2c, 2h, 2i, 3 (except as to the disposition of taxes
and penalties collected), 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i,
5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, 11, 12, 13 and, until January 1,
1994, 13.5 of the Retailers' Occupation Tax Act, and on and
after January 1, 1994, all applicable provisions of the Uniform
Penalty and Interest Act that are not inconsistent with this
subsection, as fully as if provisions contained in those
Sections of the Retailers' Occupation Tax Act were set forth in
this subsection.
Persons subject to any tax imposed under the authority
granted by this subsection may reimburse themselves for their
seller's tax liability under this subsection by separately
stating that tax as an additional charge, which charge may be
stated in combination, in a single amount, with State taxes
that sellers are required to collect under the Use Tax Act
pursuant to bracket schedules as the Department may prescribe.
The retailer filing the return shall, at the time of filing the

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return, pay to the Department the amount of tax imposed under
this subsection, less the discount of 1.75%, which is allowed
to reimburse the retailer for the expenses incurred in keeping
records, preparing the filing returns, remitting the tax, and
supplying data to the Department on request.
Whenever the Department determines that a refund should be
made under this subsection to a claimant instead of issuing a
credit memoranda, the Department shall notify the State
Comptroller, who shall cause a warrant to be drawn for the
amount specified and to the person named in the notification
from the Department. The refund shall be paid by the State
Treasurer out of the Home Rule Municipal Soft Drink Retailers'
Occupation Tax Fund.
The Department shall forthwith pay over to the State
Treasurer, ex officio, as trustee, all taxes and penalties
collected hereunder. On or before the 25th day of each calendar
month, the Department shall prepare and certify to the
Comptroller the amount to be paid to named municipalities, the
municipalities to be those from which retailers have paid taxes
or penalties hereunder to the Department during the second
preceding calendar month. The amount to be paid to each
municipality shall be the amount collected hereunder during the
second preceding calendar month by the Department, less any
amounts determined by the Department to be necessary for the
payment of refunds, and less 4% for the first year the tax is
in effect and 2% thereafter of such balance, which sum shall be

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deposited by the State Treasurer into the Tax Compliance and
Administration Fund in the State treasury from which it shall
be appropriated to the Department to cover the costs of the
Department in administering and enforcing the provisions of
this subsection. Within 10 days after receipt by the
Comptroller of the certification, the Comptroller shall cause
the orders to be drawn for the respective amount in accordance
with the directions contained in such certification.
Nothing in this Section shall be construed to authorize a
municipality to impose a tax upon the privilege of engaging in
any business which under the Constitution of the United States
may not be made the subject of taxation by the State.
A certificate of registration issued by the Illinois
Department of Revenue to a retailer under the Retailers'
Occupation Tax Act shall permit the registrant to engage in a
business that is taxed under the tax imposed under this
subsection and no additional registration shall be required
under the ordinance imposing a tax or under this subsection.
A certified copy of any ordinance imposing or discontinuing
any tax under this subsection or effecting a change in the rate
of that tax shall be filed with the Department, whereupon the
Department shall proceed to administer and enforce this
subsection on behalf of such municipality as of the first day
of February following the date of filing. This tax shall be
known and cited as the Home Rule Municipal Soft Drink
Retailers' Occupation Tax.

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(c) The corporate authorities of a home rule municipality
with a population in excess of 1,000,000 may impose a tax,
which shall not take effect prior to April 1, 1994, on persons
engaged in the business of selling fountain soft drinks at
retail at a rate not to exceed 9% of the cost price of the
fountain soft drinks at retail in such municipality. For
purposes of this subsection, the term "soft drink" has the
meaning set forth in Section 2-10 of the Retailers' Occupation
Tax Act, as may be amended from time to time, except that the
term shall not be limited to drinks contained in a closed or
sealed bottle, can, carton, or container; the term "fountain
soft drinks" means soft drinks which are prepared by the retail
seller of the soft drinks by mixing soft drink syrup or
concentrate with water, by hand or through a soft drink
dispensing machine at or near the point and time of sale to the
retail purchaser; the term "soft drink dispensing machine"
means a device which mixes soft drink syrup or concentrate with
water and dispenses such mixture into an open container as a
ready to drink soft drink; the term "sold at retail" shall mean
any transfer of the ownership or title to tangible personal
property to a purchaser, for the purpose of use or consumption,
and not for the purpose of resale, for valuable consideration;
the term "cost price of the fountain soft drinks" means the
consideration paid by the retail seller of the fountain soft
drink, valued in money, whether paid in money or otherwise,
including cash, credits and services, and shall be determined

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without any deduction on account of the supplier's cost of the
property sold or on account or any other expenses incurred by
the supplier, for the purchase of soft drink syrup or
concentrate which is designed to be further mixed with water
before it is consumed as a soft drink; and the term "supplier"
means any person who makes sales of soft drink syrup or
concentrate to a retail seller of fountain soft drinks for
purposes of resale as fountain soft drinks. The tax authorized
by this subsection shall be collected, enforced, and
administered by the municipality imposing the tax. Persons
subject to the tax may reimburse themselves for their tax
liability hereunder by separately stating an amount equal to
the tax as an additional charge to their retail purchasers or
may include such amount as part of the selling price of the
soft drink. The municipality imposing the tax shall provide for
its collection from the person subject to the tax by requiring
that the supplier to the person subject to the tax collect and
remit the tax to the municipality. If the supplier fails to
collect the tax or if the person subject to the tax fails to
pay the tax to its supplier, the person subject to the tax
shall make the tax payment directly to the municipality.
Payment of the tax by the retailer to the supplier shall
relieve the retailer of any further liability for the tax.
(d) If either tax imposed or authorized by this Section
8-11-6b is repealed by the General Assembly or has its maximum
rate reduced by the General Assembly, or is declared unlawful

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or unconstitutional on its face by any court of competent
jurisdiction after all appeals have been exhausted or the time
to appeal has expired, then this Section 8-11-6b is
automatically repealed and no longer effective without further
action by the General Assembly.
(e) Notwithstanding the preemption of taxes on the sale,
purchase or use of soft drinks, taxes on the sale, purchase, or
use of soft drinks which had been imposed by a municipality
prior to the effective date of this amendatory Act of 1993 are
specifically authorized under this Section for sales made on or
after the effective date of this amendatory Act of 1993 through
March 31, 1994.
(Source: P.A. 88-507.)