There Is a Newer Version of the Illinois Compiled Statutes
2005 Illinois Code - Chapter 35 Revenue 35 ILCS 135/ Cigarette Use Tax Act.
(35 ILCS 135/1) (from Ch. 120, par. 453.31)
Sec. 1.
For the purpose of this Act, unless otherwise required by the
context:
"Use" means the exercise by any person of any right or power over
cigarettes incident to the ownership or possession thereof, other than the
making of a sale thereof in the course of engaging in a business of selling
cigarettes and shall include the keeping or retention of cigarettes for use.
"Cigarette" means any roll for smoking made wholly or in part of tobacco
irrespective of size or shape and whether or not such tobacco is flavored,
adulterated or mixed with any other ingredient, and the wrapper or cover of
which is made of paper or any other substance or material except tobacco.
"Person" means any natural individual, firm, partnership, association,
joint stock company, joint adventure, public or private corporation,
however formed, limited liability company, or a receiver, executor,
administrator, trustee, guardian or other representative appointed by order of
any court.
"Department" means the Department of Revenue.
"Sale" means any transfer, exchange or barter in any manner or by any
means whatsoever for a consideration, and includes and means all sales made
by any person.
"Original Package" means the individual packet, box or other container
whatsoever used to contain and to convey cigarettes to the consumer.
"Distributor" means any and each of the following:
a. Any person engaged in the business of selling | ||
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b. Any person who makes, manufactures or fabricates | ||
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c. Any person who makes, manufactures or fabricates | ||
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"Distributor maintaining a place of business in this State", or any like
term, means any distributor having or maintaining within this State,
directly or by a subsidiary, an office, distribution house, sales house,
warehouse or other place of business, or any agent operating within this
State under the authority of the distributor or its subsidiary,
irrespective of whether such place of business or agent is located here
permanently or temporarily, or whether such distributor or subsidiary is
licensed to transact business within this State.
"Business" means any trade, occupation, activity or enterprise engaged
in or conducted in this State for the purpose of selling cigarettes.
"Prior Continuous Compliance Taxpayer" means any person who is licensed
under this Act and who, having been a licensee for a continuous period of 5
years, is determined by the Department not to have been either delinquent
or deficient in the payment of tax liability during that period or
otherwise in violation of this Act. Also, any taxpayer who has, as
verified by the Department, continuously complied with the
condition of his bond or other security under provisions of this Act of a
period of 5 consecutive years shall be considered to be a "prior
continuous compliance taxpayer". In calculating the consecutive period of
time described herein for qualification as a "prior continuous compliance
taxpayer", a consecutive period of time of qualifying compliance
immediately prior to the effective date of this amendatory Act of 1987 shall be
credited to any licensee who became licensed on or before the effective date
of this amendatory Act of 1987.
(Source: P.A. 88‑480.)
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(35 ILCS 135/2) (from Ch. 120, par. 453.32)
Sec. 2.
A tax is imposed upon the privilege of using cigarettes in this
State, at the rate of 6 mills per cigarette so used. On and after
December 1, 1985, in addition to any other tax imposed by this Act, a tax
is imposed upon the privilege of using cigarettes in this State at a rate
of 4 mills per cigarette so used. On and after the effective date of this
amendatory Act of 1989, in addition to any other tax imposed by this Act, a
tax is imposed upon the privilege of using cigarettes in this State at the
rate of 5 mills per cigarette so used. On and after the effective date of this
amendatory Act of 1993, in addition to any other tax imposed by this Act, a tax
is imposed upon the privilege of using cigarettes in this State at a rate of 7
mills per cigarette so used. On and after December 15,
1997, in addition to any other tax imposed by this Act, a tax
is imposed upon the privilege of using cigarettes in this State at a rate of
7 mills per cigarette so used.
On and after July 1, 2002, in addition to any other tax imposed by
this Act, a tax is imposed
upon the privilege of using cigarettes in this State at a rate of 20.0 mills
per cigarette so used.
The taxes herein imposed shall be in
addition to
all other occupation or privilege taxes imposed by the State of Illinois or by
any political subdivision thereof or by any municipal corporation.
When any tax imposed herein terminates or has terminated, distributors
who have bought stamps while such tax was in effect and who therefore paid
such tax, but who can show, to the Department's satisfaction, that they
sold the cigarettes to which they affixed such stamps after such tax had
terminated and did not recover the tax or its equivalent from purchasers,
shall be allowed by the Department to take credit for such absorbed tax
against subsequent tax stamp purchases from the Department by such
distributors.
When the word "tax" is used in this Act, it shall include any tax or tax
rate imposed by this Act and shall mean the singular of "tax" or the plural
"taxes" as the context may require.
Any distributor having cigarettes to which stamps have been affixed in
his possession for sale on the effective date of this amendatory Act of
1989 shall not be required to pay the additional tax imposed by this
amendatory Act of 1989 on such stamped cigarettes. Any distributor having
cigarettes to which stamps have been affixed in his or her possession for sale
at 12:01 a.m. on the effective date of this amendatory Act of 1993, is required
to pay the additional tax imposed by this amendatory Act of 1993 on such
stamped cigarettes. This payment shall be due when the distributor first makes
a purchase of cigarette tax stamps after the effective date of this amendatory
Act of 1993, or on the first due date of a return under this Act after the
effective date of this amendatory Act of 1993, whichever occurs first. Once a
distributor tenders payment of the additional tax to the Department, the
distributor may purchase stamps from the Department.
Any distributor having cigarettes to which stamps have been affixed
in his possession for sale on December 15, 1997
shall not be required to pay the additional tax imposed by this amendatory Act
of 1997 on such stamped cigarettes.
Any distributor having cigarettes to which stamps have been affixed in his
or her possession for sale on July 1, 2002 shall not be required to pay the
additional
tax imposed by this amendatory Act of the 92nd General Assembly on those
stamped
cigarettes.
(Source: P.A. 92‑536, eff. 6‑6‑02.)
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(35 ILCS 135/3) (from Ch. 120, par. 453.33)
Sec. 3.
Stamp payment.
The tax hereby imposed shall be collected by a
distributor
maintaining a place of business in this State or a distributor authorized
by the Department pursuant to Section 7 hereof to collect the tax, and the
amount of the tax shall be added to the price of the cigarettes sold by
such distributor. Collection of the tax shall be evidenced by a stamp or
stamps affixed to each original package of cigarettes or by an authorized
substitute for such stamp imprinted on each original package of such
cigarettes underneath the sealed transparent outside wrapper of such
original package, except as hereinafter provided. Each distributor who is
required or authorized to collect the tax herein imposed, before delivering
or causing to be delivered any original packages of cigarettes in this
State to any purchaser, shall firmly affix a proper stamp or stamps to each
such package, or (in the case of manufacturers of cigarettes in original
packages which are contained inside a sealed transparent wrapper) shall
imprint the required language on the original package of cigarettes beneath
such outside wrapper as hereinafter provided. Such stamp or stamps need not
be affixed to the original package of any cigarettes with respect to which
the distributor is required to affix a like stamp or stamps by virtue of
the Cigarette Tax Act, however, and no tax imprint need be placed
underneath the sealed transparent wrapper of an original package of
cigarettes with respect to which the distributor is required or authorized
to employ a like tax imprint by virtue of the Cigarette Tax Act.
No stamp or imprint may be affixed to, or made upon, any package of
cigarettes unless that package complies with all requirements of the federal
Cigarette Labeling and Advertising Act, 15 U.S.C. 1331 and following, for the
placement of labels, warnings, or any other information upon a package of
cigarettes that is sold within the United States. Under the authority of
Section 6, the Department shall revoke the license of any distributor that is
determined to have violated this paragraph.
A person may not affix a stamp on a package of cigarettes, cigarette papers,
wrappers, or tubes if that individual package has been marked for export
outside the United States with a label or notice in compliance with Section
290.185 of Title 27 of the Code of Federal Regulations. It is not a defense to
a proceeding for violation of this paragraph that the label or notice has been
removed, mutilated, obliterated, or altered in any manner.
Stamps, when required hereunder, shall be purchased from the Department, or
any person authorized by the Department, by distributors. On and after July
1, 2003, payment for such stamps must be made by means of
electronic funds transfer. The Department may
refuse to sell stamps to any person who does not comply with the provisions
of this Act. Beginning on June 6, 2002 and through June 30, 2002,
persons holding valid licenses as distributors may purchase cigarette tax
stamps up to an amount equal to 115% of the distributor's average monthly
cigarette tax stamp purchases over the 12 calendar months prior to June
6, 2002.
Prior to December 1, 1985, the Department shall
allow a distributor
21 days in which to make final
payment of the amount to be paid for such stamps, by allowing the
distributor to make payment for the stamps at the time of purchasing them
with a draft which shall be in such form as the Department prescribes, and
which shall be payable within 21 days thereafter: Provided that such
distributor has filed with the Department, and has received the
Department's approval of, a bond, which is in addition to the bond required
under Section 4 of this Act, payable to the Department in an amount equal
to 80% of such distributor's average monthly tax liability to
the Department under this Act during the preceding calendar year or
$500,000, whichever is less. The bond shall be joint and
several and shall be in the form of a surety company bond in such form as
the Department prescribes, or it may be in the form of a bank certificate
of deposit or bank letter of credit. The bond shall be conditioned upon the
distributor's payment of the amount of any 21‑day draft which the
Department accepts from that distributor for the delivery of stamps to that
distributor under this Act. The distributor's failure to pay any such
draft, when due, shall also make such distributor automatically liable to
the Department for a penalty equal to 25% of the amount of such draft.
On and after December 1, 1985 and until July 1, 2003, the Department
shall allow a distributor
30 days in which to make
final payment of the amount to be paid for such stamps, by allowing the
distributor to make payment for the stamps at the time of purchasing them
with a draft which shall be in such form as the Department prescribes, and
which shall be payable within 30 days thereafter, and beginning on January 1,
2003 and thereafter, the draft shall be payable by means of electronic funds
transfer: Provided that such
distributor has filed with the Department, and has received the
Department's approval of, a bond, which is in addition to the bond required
under Section 4 of this Act, payable to the Department in an amount equal
to 150% of such distributor's average monthly tax liability to the
Department under this Act during the preceding calendar year or $750,000,
whichever is less, except that as to bonds filed on or after January 1,
1987, such additional bond shall be in an amount equal to 100% of such
distributor's average monthly tax liability under this Act during the
preceding calendar year or $750,000, whichever is less. The bond shall be
joint and several and shall be in the form of a surety company bond in such
form as the Department prescribes, or it may be in the form of a bank
certificate of deposit or bank letter of credit.
The bond shall be conditioned upon the distributor's payment of the amount
of any 30‑day draft which the Department accepts from that distributor for
the delivery of stamps to that distributor under this Act. The
distributor's failure to pay any such draft, when due, shall also make such
distributor automatically liable to the Department for a penalty equal to
25% of the amount of such draft.
Every prior continuous compliance taxpayer shall be exempt from all
requirements under this Section concerning the furnishing of such bond, as
defined in this Section, as a condition precedent to his being authorized
to engage in the business licensed under this Act. This exemption shall
continue for each such taxpayer until such time as he may be determined by
the Department to be delinquent in the filing of any returns, or is
determined by the Department (either through the Department's issuance of a
final assessment which has become final under the Act, or by the taxpayer's
filing of a return which admits tax to be due that is not paid) to be
delinquent or deficient in the paying of any tax under this Act, at which
time that taxpayer shall become subject to the bond requirements of this
Section and, as a condition of being allowed to continue to engage in the
business licensed under this Act, shall be required to furnish bond to the
Department in such form as provided in this Section. Such taxpayer shall
furnish such bond for a period of 2 years, after which, if the taxpayer has
not been delinquent in the filing of any returns, or delinquent or
deficient in the paying of any tax under this Act, the Department may
reinstate such person as a prior continuance compliance taxpayer. Any
taxpayer who fails to pay an admitted or established liability under this
Act may also be required to post bond or other acceptable security with the
Department guaranteeing the payment of such admitted or established liability.
Any person aggrieved by any decision of the Department under this
Section may, within the time allowed by law, protest and request a hearing,
whereupon the Department shall give notice and shall hold a hearing in
conformity with the provisions of this Act and then issue its final
administrative decision in the matter to such person. In the absence of
such a protest filed within the time allowed by law, the Department's
decision shall become final without any further determination being made or
notice given.
The Department shall discharge any surety and shall release and return
any bond or security deposited, assigned, pledged, or otherwise provided to
it by a taxpayer under this Section within 30 days after:
(1) such Taxpayer becomes a prior continuous | ||
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(2) such taxpayer has ceased to collect receipts on | ||
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At the time of purchasing such stamps from the Department when purchase
is required by this Act, or at the time when the tax which he has collected
is remitted by a distributor to the Department without the purchase of
stamps from the Department when that method of remitting the tax that has
been collected is required or authorized by this Act, the distributor shall
be allowed a discount during any year commencing July 1 and ending the
following June 30 in accordance with the schedule set out hereinbelow, from
the amount to be paid by him to the Department for such stamps, or to be
paid by him to the Department on the basis of monthly remittances (as the
case may be), to cover the cost, to such distributor, of collecting the tax
herein imposed by affixing such stamps to the original packages of
cigarettes sold by such distributor or by placing tax imprints underneath
the sealed transparent wrapper of original packages of cigarettes sold by
such distributor (as the case may be): (1) Prior to December 1, 1985, a
discount equal to 1‑2/3% of the amount of the tax up to and including the
first $700,000 paid hereunder by
such distributor to the Department during any such year; 1‑1/3% of the next
$700,000 of tax or any part thereof, paid hereunder by such distributor to
the Department during any such year; 1% of the next $700,000 of tax, or any
part thereof, paid hereunder by such distributor to the Department during
any such year; and 2/3 of 1% of the amount of any additional tax paid
hereunder by such distributor to the Department during any such year or
(2) On and after December 1, 1985, a discount equal to 1.75% of the
amount of the tax payable under this Act up to and including the first
$3,000,000 paid hereunder by such distributor to the Department during any
such year and 1.5% of the amount of any additional tax paid hereunder by
such distributor to the Department during any such year.
Two or more distributors that use a common means of affixing revenue tax
stamps or that are owned or controlled by the same interests shall be
treated as a single distributor for the purpose of computing the discount.
Cigarette manufacturers who are distributors under this Act, and who
place their cigarettes in original packages which are contained inside a
sealed transparent wrapper, shall be required to remit the tax which they
are required to collect under this Act to the Department by remitting the
amount thereof to the Department by the 5th day of each month, covering
cigarettes shipped or otherwise delivered to points in Illinois to
purchasers during the preceding calendar month, but a distributor need not
remit to the Department the tax so collected by him from purchasers under
this Act to the extent to which such distributor is required to remit the
tax imposed by the Cigarette Tax Act to the Department with respect to the
same cigarettes. All taxes upon cigarettes under this Act are a direct tax
upon the retail consumer and shall conclusively be presumed to be
precollected for the purpose of convenience and facility only.
Distributors who are manufacturers of cigarettes in original packages which
are contained inside a sealed transparent wrapper, before delivering such
cigarettes or causing such cigarettes to be delivered in this State to
purchasers, shall evidence their obligation to collect and remit the tax
due with respect to such cigarettes by imprinting language to be prescribed
by the Department on each original package of such cigarettes underneath
the sealed transparent outside wrapper of such original package, in such
place thereon and in such manner as the Department may prescribe; provided
(as stated hereinbefore) that this requirement does not apply when such
distributor is required or authorized by the Cigarette Tax Act to place the
tax imprint provided for in the last paragraph of Section 3 of that Act
underneath the sealed transparent wrapper of such original package of
cigarettes. Such imprinted language shall acknowledge the manufacturer's
collection and payment of or liability for the tax imposed by this Act with
respect to such cigarettes.
The Department shall adopt the design or designs of the tax stamps and
shall procure the printing of such stamps in such amounts and denominations
as it deems necessary to provide for the affixation of the proper amount of
tax stamps to each original package of cigarettes.
Where tax stamps are required, the Department may authorize distributors
to affix revenue tax stamps by imprinting tax meter stamps upon original
packages of cigarettes. The Department shall adopt rules and regulations
relating to the imprinting of such tax meter stamps as will result in
payment of the proper taxes as herein imposed. No distributor may affix
revenue tax stamps to original packages of cigarettes by imprinting meter
stamps thereon unless such distributor has first obtained permission from
the Department to employ this method of affixation. The Department shall
regulate the use of tax meters and may, to assure the proper collection of
the taxes imposed by this Act, revoke or suspend the privilege, theretofore
granted by the Department to any distributor, to imprint tax meter stamps
upon original packages of cigarettes.
The tax hereby imposed and not paid pursuant to this Section shall be
paid to the Department directly by any person using such cigarettes within
this State, pursuant to Section 12 hereof.
A distributor shall not affix, or cause to be affixed, any stamp or imprint
to a package
of cigarettes, as provided for in this Section, if the tobacco product
manufacturer, as defined in Section 10 of the Tobacco Product Manufacturers'
Escrow
Act, that made or sold the cigarettes has failed to become a participating
manufacturer, as defined in subdivision (a)(1) of Section 15 of the Tobacco
Product Manufacturers' Escrow Act, or has failed to create a qualified escrow
fund for any cigarettes manufactured by the tobacco
product manufacturer and sold in this State or otherwise failed to bring itself
into
compliance with subdivision (a)(2) of Section 15 of the Tobacco Product
Manufacturers' Escrow Act.
(Source: P.A. 92‑322, eff. 1‑1‑02; 92‑536, eff. 6‑6‑02;
92‑737, eff. 7‑25‑02; 93‑22, eff. 6‑20‑03.)
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(35 ILCS 135/3‑5)
Sec. 3‑5.
Sunset of exemptions, credits, and deductions.
The application
of every exemption, credit, and deduction against tax imposed by this Act that
becomes law after the effective date of this amendatory Act of 1994 shall be
limited by a reasonable and appropriate sunset date. A taxpayer is not
entitled to take the exemption, credit, or deduction beginning on the sunset
date and thereafter. If a reasonable and appropriate sunset date is not
specified in the Public Act that creates the exemption, credit, or deduction, a
taxpayer shall not be entitled to take the exemption, credit, or deduction
beginning 5 years after the effective date of the Public Act creating the
exemption, credit, or deduction and thereafter.
(Source: P.A. 88‑660, eff. 9‑16‑94.)
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(35 ILCS 135/3‑10)
Sec. 3‑10.
Cigarette enforcement.
(a) Prohibitions. It is unlawful for any person:
(1) to sell or distribute in this State; to acquire, | ||
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(A) any cigarettes the package of which:
(i) bears any statement, label, stamp, | ||
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(ii) does not comply with:
(aa) all requirements imposed by or | ||
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(bb) all federal trademark and copyright | ||
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(B) any cigarettes imported into the United | ||
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(C) any cigarettes that such person otherwise | ||
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(D) any cigarettes for which there has not been | ||
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(2) to alter the package of any cigarettes, prior to | ||
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(A) any statement, label, stamp, sticker, or | ||
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(B) any health warning that is not specified in, | ||
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(3) to affix any stamp required pursuant to this Act | ||
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(b) Documentation. On the first business day of each month, each person
licensed
to affix the State tax stamp to cigarettes shall file with the Department, for
all cigarettes
imported into the United States to which the person has affixed the tax stamp
in the
preceding month:
(1) a copy of:
(A) the permit issued pursuant to the Internal | ||
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(B) the customs form containing, with respect to | ||
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(2) a statement, signed by the person under penalty | ||
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(3) a statement, signed by an officer of the | ||
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(A) the package health warning and ingredient | ||
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(B) the provisions of Exhibit T of the Master | ||
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(c) Administrative sanctions.
(1) Upon finding that a distributor has committed | ||
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(2) Cigarettes that are acquired, held, owned, | ||
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(d) Unfair trade practices. A violation of subsection (a) or subsection
(b) of this Section shall constitute an unlawful practice as provided in the
Consumer Fraud and Deceptive Business Practices Act.
(e) Unfair cigarette sales. For purposes of the Trademark Registration and
Protection Act and the Counterfeit Trademark Act, cigarettes imported or
reimported into the United States for sale or distribution under any trade
name, trade dress, or trademark that is the same as, or is confusingly similar
to, any trade name, trade dress, or trademark used for cigarettes manufactured
in the United States for sale or distribution in the United States shall be
presumed to have been purchased outside of the ordinary channels of trade.
(f) General provisions.
(1) This Section shall be enforced by the | ||
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(2) For the purpose of enforcing this Section, the | ||
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(3) In addition to any other remedy provided by law, | ||
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(g) Definitions. As used in this Section:
"Importer" means that term as defined in 26 U.S.C. 5702(1).
"Package" means that term as defined in 15 U.S.C. 1332(4).
(h) Applicability.
(1) This Section does not apply to:
(A) cigarettes allowed to be imported or brought | ||
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(B) cigarettes sold or intended to be sold as | ||
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(2) The penalties provided in this Section are in | ||
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(Source: P.A. 91‑810, eff. 6‑13‑00.)
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(35 ILCS 135/4) (from Ch. 120, par. 453.34)
Sec. 4.
Distributor's license.
A distributor maintaining a place of business in this State, if required
to procure a license or allowed to obtain a permit as a distributor under
the Cigarette Tax Act, need not obtain an additional license or permit
under this Act, but shall be deemed to be sufficiently licensed or
registered by virtue of his being licensed or registered under the
Cigarette Tax Act.
Every distributor maintaining a place of business in this State, if not
required to procure a license or allowed to obtain a permit as a
distributor under the Cigarette Tax Act, shall make a verified application
to the Department (upon a form prescribed and furnished by the Department)
for a license to act as a distributor under this Act. In completing such
application, the applicant shall furnish such information as the Department
may reasonably require.
The annual license fee payable to the Department for each distributor's
license shall be $250. The purpose of such annual license fee is to defray
the cost, to the Department, of
serializing cigarette tax stamps. The applicant for license shall pay such
fee to the Department at the time of submitting the application for license
to the Department.
Such applicant shall file, with his application, a joint and several
bond. Such bond shall be executed to the Department of Revenue, with good
and sufficient surety or sureties residing or licensed to do business
within the State of Illinois, in the amount of $2,500, conditioned upon the
true and faithful compliance by the licensee with all of the provisions of
this Act. Such bond, or a reissue thereof, or a substitute therefor, shall
be kept in effect during the entire period covered by the license. A
separate application for license shall be made, a separate annual license
fee paid, and a separate bond filed, for each place of business at or from
which the applicant proposes to act as a distributor under this Act and for
which the applicant is not required to procure a license or allowed to
obtain a permit as a distributor under the Cigarette Tax Act.
The following are ineligible to receive a distributor's license under
this Act:
(1) a person who is not of good character and | ||
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(2) a person who has been convicted of a felony | ||
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(3) a corporation, if any officer, manager or | ||
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Upon approval of such application and bond and payment of the required
annual license fee, the Department shall issue a license to the applicant.
Such license shall permit the applicant to engage in business as a
distributor at or from the place shown in his application. All licenses
issued by the Department under this Act shall be valid for not to exceed
one year after issuance unless sooner revoked, canceled or suspended as in
this Act provided. No license issued under this Act is transferable or
assignable. Such license shall be conspicuously displayed at the place of
business for which it is issued.
Any person aggrieved by any decision of the Department under this Section
may, within 20 days after notice of the decision, protest and request a
hearing. Upon receiving a request for a hearing, the Department shall give
notice to the person requesting the hearing of the time and place fixed for the
hearing and shall hold a hearing in conformity with the provisions of this Act
and then issue its final administrative decision in the matter to that person.
In the absence of a protest and request for a hearing within 20 days, the
Department's decision shall become final without any further determination
being made or notice given.
(Source: P.A. 91‑901, eff. 1‑1‑01; 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/5) (from Ch. 120, par. 453.35)
Sec. 5.
If a licensee shall be convicted of the violation of
this Act, or if his license shall be revoked and no review
is had of the order of revocation, or if on review thereof the decision is
adverse to the licensee, or if a licensee fails to pay an assessment as to
which no judicial review is sought and which has become final, or pursuant
to which, upon review thereof, the circuit court has
entered a judgment that is in favor of the Department and that has become
final, the bond filed pursuant to this Act shall thereupon be forfeited,
and the Department may institute a suit upon such bond in its own name for
the entire amount of such bond and costs. Such
suit upon the bond shall be
in addition to any other remedy provided for herein.
(Source: P.A. 79‑1366.)
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(35 ILCS 135/6) (from Ch. 120, par. 453.36)
Sec. 6.
Revocation, cancellation, or suspension of license.
The Department may, after notice and hearing as provided for by this
Act, revoke, cancel or suspend the license of any distributor for the
violation of any provision of this Act, or for non‑compliance with any
provision herein contained, or for any non‑compliance with any lawful rule
or regulation promulgated by the Department under Section 21 of this Act,
or because the licensee is determined to be ineligible for a distributor's
license for any one or more of the reasons provided for in Section 4 of
this Act. However, no such license shall be revoked, canceled or suspended,
except after a hearing by the Department with notice to the distributor, as
aforesaid, and affording such distributor a reasonable opportunity to
appear and defend, and any distributor aggrieved by any decision of the
Department with respect thereto may have the determination of the
Department judicially reviewed, as herein provided.
The Department may revoke, cancel, or suspend the license of any
distributor for a violation of the Tobacco Product Manufacturers' Escrow
Enforcement Act as provided in Section 20 of that Act.
Any distributor aggrieved by any decision of the Department under this
Section
may, within 20 days after notice of the decision, protest and request a
hearing. Upon receiving a request for a hearing, the Department shall give
notice in writing to the distributor requesting the hearing that contains a
statement of the charges preferred against the distributor and that states the
time and place fixed for the hearing. The Department shall hold the hearing in
conformity with the provisions of this Act and then issue its final
administrative decision in the matter to the distributor. In the absence of a
protest and request for a hearing within 20 days, the Department's decision
shall become final without any further determination being made or notice
given.
No license so revoked, shall be reissued to any such
distributor within a period of 6 months after the date of the final
determination of such revocation. No such license shall be reissued at all
so long as the person who would receive the license is ineligible to
receive a distributor's license under this Act for any one or more of the
reasons provided for in Section 4 of this Act.
The Department upon complaint filed in the circuit court may by injunction
restrain any person who fails, or refuses, to comply with
this Act from acting as a distributor of cigarettes in this State.
(Source: P.A. 91‑901, eff. 1‑1‑01; 92‑737, eff. 7‑25‑02.)
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(35 ILCS 135/7) (from Ch. 120, par. 453.37)
Sec. 7.
The Department may, in its discretion, upon application, issue
permits authorizing the collection of the tax herein imposed by those
out‑of‑State cigarette manufacturers who are not required to be licensed as
distributors of cigarettes in this State, but who elect to qualify under
this Act as distributors of cigarettes in this State, and who, to the
satisfaction of the Department, furnish adequate security to insure
collection and payment of the tax, provided that any such permit shall
extend only to cigarettes which such permittee manufacturer places in
original packages that are contained inside a sealed transparent wrapper,
and provided that no such permit shall be issued under this Act to such a
manufacturer who has obtained the permit provided for in Section 4b of the
Cigarette Tax Act. Such distributor shall be issued, without charge, a
permit to collect such tax in such manner, and subject to such reasonable
regulations and agreements as the Department shall prescribe. When so
authorized, it shall be the duty of such distributor to collect the tax
upon all cigarettes which he delivers (or causes to be delivered) within
this State to purchasers, in the same manner and subject to the same
requirements as a distributor maintaining a place of business within this
State. Such permit shall be in such form as the Department may prescribe
and shall not be transferable or assignable.
The following are ineligible to receive a distributor's permit under
this Act:
(1) a person who is not of good character and reputation in the
community in which he resides;
(2) a person who has been convicted of a felony under any Federal or
State law, if the Department, after investigation and a hearing, if
requested by the applicant, determines that such person has not been
sufficiently rehabilitated to warrant the public trust;
(3) a corporation, if any officer, manager or director thereof, or any
stockholder or stockholders owning in the aggregate more than 5% of the
stock of such corporation, would not be eligible to receive a permit under
this Act for any reason.
With respect to cigarettes which come within the scope of such a permit
and which any such permittee delivers or causes to be delivered in Illinois
to purchasers, such permittee shall collect the tax imposed by this Act and
shall remit such tax to the Department by the 5th day of each month for the
preceding calendar month. Each such remittance shall be accompanied by a
return filed with the Department on a form to be prescribed and furnished
by the Department and shall disclose such information as the Department may
lawfully require. Each such return shall be accompanied by a copy of each
invoice rendered by the permittee to any purchaser to whom the permittee
delivered cigarettes of the type covered by the permit (or caused
cigarettes of the type covered by the permit to be delivered) in Illinois
during the period covered by such return.
Such authority and permit may be suspended, canceled or revoked when, at
any time, the Department considers that the security given is inadequate,
or that such tax can more effectively be collected from the person using
such cigarettes in this State or through distributors located in this
State, or whenever the permittee violates any provision of this Act or any
lawful rule or regulation issued by the Department pursuant to this Act or
is determined to be ineligible for a distributor's permit under this Act as
provided in this Section, or whenever the permittee shall notify the
Department in writing of his desire to have the permit canceled. The
Department shall have the power, in its discretion, to issue a new permit
after such suspension, cancellation or revocation, except when the person
who would receive the permit is ineligible to receive a distributor's
permit under this Act.
All permits issued by the Department under this Act shall be valid for
not to exceed one year after issuance unless sooner revoked, canceled or
suspended as in this Act provided.
(Source: P.A. 79‑387.)
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(35 ILCS 135/8) (from Ch. 120, par. 453.38)
Sec. 8.
Evidence that cigarettes were sold by any person for delivery to a
person residing or engaged in business in this State shall be prima facie
evidence that such cigarettes were sold for use in this State.
Whenever any original package of cigarettes is found in the place of
business or in the possession of any person who is not a licensed
distributor under this Act without proper stamps affixed thereto or an
authorized substitute therefor imprinted thereon, underneath the sealed
transparent wrapper of such original package, as required by this Act, the
prima facie presumption shall arise that such original package of
cigarettes is kept therein or is held by such person in violation of the
provisions of this Act.
The affixation of a proper Illinois Cigarette Tax Stamp or stamps to the
original package of any cigarettes, or the placing of a proper tax imprint
underneath the sealed transparent wrapper of the original package of any
cigarettes, shall be prima facie evidence that the tax herein imposed has
been paid with respect to such cigarettes.
(Source: Laws 1953, p. 265.)
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(35 ILCS 135/9) (from Ch. 120, par. 453.39)
Sec. 9.
It shall be unlawful for any distributor to advertise or hold out
or state to the public or to any purchaser, consumer or user, directly or
indirectly, that the tax or any part thereof imposed by this Act will be
assumed or absorbed by the distributor or that it will not be added to the
selling price of the cigarettes sold, or if added that it or any part
thereof will be refunded. Any person violating any of the provisions of
this Section within this State shall be guilty of a Class B misdemeanor.
(Source: P. A. 77‑2229.)
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(35 ILCS 135/10) (from Ch. 120, par. 453.40)
Sec. 10.
The tax herein required to be collected by any distributor shall
constitute a debt owed by the distributor to this State, except when such
distributor is relieved, by Section 3 hereof, of the duty of affixing tax
stamps to the original packages of cigarettes by virtue of his being
required by the Cigarette Tax Act to affix stamps to the same original
packages of cigarettes, or (in the case of manufacturers of cigarettes in
original packages which are contained inside a sealed transparent wrapper)
when such distributor is relieved, by Section 3 hereof, of the duty of
placing tax imprints underneath the sealed transparent wrapper of original
packages of cigarettes and of remitting tax to the Department with respect
thereto by virtue of his being required by the Cigarette Tax Act to place
such tax imprints on the same original packages of cigarettes and to remit
tax with respect thereto to the Department.
(Source: Laws 1953, p. 265.)
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(35 ILCS 135/11) (from Ch. 120, par. 453.41)
Sec. 11.
Return by distributor or manufacturer.
Every distributor, who is required or authorized to collect tax
under this Act, but who is not a manufacturer of cigarettes in original
packages which are contained in a sealed transparent wrapper, shall, on or
before the 15th day of each calendar month, file a return with the
Department, showing such information as the Department may reasonably
require.
The Department may promulgate rules to require that the distributor's return
be accompanied by appropriate computer‑generated magnetic media supporting
schedule data in the format required by the Department, unless, as provided by
rule, the Department grants an exception upon petition of a distributor.
Illinois manufacturers of cigarettes in original packages which
are contained inside a sealed transparent wrapper shall file a return by
the 5th day of each month covering the preceding calendar month. Each such
return shall be accompanied by the appropriate remittance for tax as
provided in Section 3 of this Act. Each such return shall disclose such
information as the Department may lawfully require. Each such return shall
be accompanied by a copy of each invoice rendered by such manufacturer to
any purchaser to whom such manufacturer delivered cigarettes (or caused
cigarettes to be delivered) during the period covered by the return.
The Department may promulgate rules to require that the manufacturer's return
be accompanied by appropriate computer‑generated magnetic media supporting
schedule data in the format required by the Department, unless, as provided by
rule, the Department grants an exception upon petition of a manufacturer.
No distributor shall be required to return information to the extent to which
the reporting of such information would be a duplication of such
distributor's reporting of information in any return which he is required
to file with the Department under the Cigarette Tax Act. Returns shall be
filed on forms prescribed by the Department.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/12) (from Ch. 120, par. 453.42)
Sec. 12.
Declaration of possession of cigarettes on which tax not paid.
(a) When cigarettes are acquired for use in this State by a person
(including a distributor as well as any other person), who did not pay the
tax herein imposed to a distributor, the person, within 30 days after
acquiring the cigarettes, shall file with the Department a return
declaring the possession of the cigarettes and shall transmit with
the
return to the Department the tax imposed by this Act.
(b) On receipt of the return and payment of the tax as required by
paragraph (a), the Department may furnish the person with a suitable tax stamp
to be
affixed to the package of cigarettes upon which the tax has been paid
if the Department determines that the cigarettes still exist.
(c) The return referred to in paragraph
(a) shall
contain the name and address of the person possessing the cigarettes
involved, the location of the cigarettes and the quantity, brand
name,
place, and date of the acquisition of the cigarettes.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/13) (from Ch. 120, par. 453.43)
Sec. 13.
Examination and correction of return.
As soon as practicable
after any return is filed, the Department
shall examine such return and shall correct such return according to its
best judgment and information, which return so corrected by the Department
shall be prima facie correct and shall be prima facie evidence of the
correctness of the amount of tax due, as shown therein. Proof of such
correction by the Department may be made at any hearing before the
Department or in any legal proceeding by a reproduced copy of the
Department's record relating thereto in the name of the Department under
the certificate of the Director of Revenue. Such reproduced copy shall,
without further proof, be admitted into evidence before the Department or
in any legal proceeding and shall be prima facie proof of the correctness
of the amount of tax due, as shown therein. If the tax as fixed by the
Department is greater than the amount of the tax due under the return as
filed, the Department shall issue the person filing such return a notice of
tax liability for the amount of tax claimed by the Department to be due,
together with a penalty in an amount determined in accordance with
Sections 3‑3, 3‑5 and 3‑6 of the Uniform Penalty and Interest Act. If,
in administering the provisions of this Act,
comparison of a return or returns of a distributor with the books, records
and inventories of such distributor discloses a deficiency which cannot be
allocated by the Department to a particular month or months, the Department
shall issue the distributor a notice of tax liability for the amount of tax
claimed by the Department to be due for a given period, but without any
obligation upon the Department to allocate such deficiency to any
particular month or months, together with a penalty in an amount
determined in accordance with Sections 3‑3, 3‑5 and 3‑6 of the Uniform
Penalty and Interest Act, under which circumstances the aforesaid notice of
tax liability shall be prima facie correct and shall be prima facie
evidence of the correctness of the amount of tax due, as shown therein; and
proof of such correctness may be made in accordance with, and the
admissibility of a reproduced copy of such notice of tax liability shall be
governed by, all the provisions of this Act applicable to corrected returns.
If any person filing any return dies or becomes a person under legal
disability at any time before the Department issues its notice of tax
liability, such notice shall be issued to the administrator, executor or
other legal representative, as such, of such person.
If within 60 days after such notice of tax liability, the person
to whom
such notice is issued or his legal representative files a protest to such
notice of tax liability and requests a hearing thereon, the Department
shall give notice to such person or legal representative of the time and
place fixed for such hearing, and shall hold a hearing in conformity with
the provisions of this Act, and pursuant thereto shall issue a final
assessment to such person or legal representative for the amount found to
be due as a result of such hearing. If a protest to the notice of tax
liability and a request for a hearing thereon is not filed within 60
days
after such notice of tax liability, such notice of tax liability shall
become final without the necessity of a final assessment being issued and
shall be deemed to be a final assessment.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/13a) (from Ch. 120, par. 453.43a)
Sec. 13a.
Failure to file return.
In case any person who is required to
file a return under this
Act fails to file such return, the Department shall determine the amount of
tax due from him according to its best judgment and information, which
amount so fixed by the Department shall be prima facie correct and shall be
prima facie evidence of the correctness of the amount of tax due, as shown
in such determination. Proof of such determination by the Department may be
made at any hearing before the Department or in any legal proceeding by a
reproduced copy of the Department's record relating thereto in the name of
the Department under the certificate of the Director of Revenue. Such
reproduced copy shall, without further proof, be admitted into evidence
before the Department or in any legal proceeding and shall be prima facie
proof of the correctness of the amount of tax due, as shown therein. The
Department shall issue such person a notice of tax liability for the amount
of tax claimed by the Department to be due, together with a penalty in
an amount determined in accordance with Sections 3‑3, 3‑5 and 3‑6 of the
Uniform Penalty and Interest Act. If such person or the legal representative of
such person, within 60 days after such notice, files a protest to
such
notice of tax liability and requests a hearing thereon, the Department
shall give notice to such person or the legal representative of such person
of the time and place fixed for such hearing, and shall hold a hearing in
conformity with the provisions of this Act, and pursuant thereto shall
issue a final assessment to such person or to the legal representative of
such person for the amount found to be due as a result of such hearing. If
a protest to the notice of tax liability and a request for a hearing
thereon is not filed within 60 days after such notice of tax
liability,
such notice of tax liability shall become final without the necessity of a
final assessment being issued and shall be deemed to be a final assessment.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/14) (from Ch. 120, par. 453.44)
Sec. 14.
In case of failure to pay the tax, or any portion thereof, or any
penalty provided for in this Act, when due, the Department may bring an
action to recover the amount of such tax, or portion thereof, or penalty;
or, if the taxpayer shall have died or shall have become a person under legal
disability, by filing claim therefor against his or her estate; provided
that no such action with respect to any tax, or portion thereof, or
penalty, shall be instituted more than 2 years after the cause of action
accrues, except with the consent of the person from whom such tax or penalty
is due.
After the expiration of the period within which the person assessed may
file an action for judicial review under the Administrative Review Law without
such an action being filed, a certified copy of the final assessment or
revised final assessment of the Department may be filed with the Circuit
Court of the county in which the taxpayer has his or her principal place of
business, or of Sangamon County in those cases in which the taxpayer does
not have his or her principal place of business in this State. The certified
copy of the final assessment or revised final assessment shall be accompanied
by a certification which recites facts that are sufficient to show that the
Department complied with the jurisdictional requirements of the Act in
arriving at its final assessment or its revised final assessment and that
the taxpayer had his opportunity for an administrative hearing and for
judicial review, whether he availed himself or herself of either or both
of these opportunities or not. If the court is satisfied that the Department
complied with the jurisdictional requirements of the Act in arriving at its
final assessment or its revised final assessment and that the taxpayer had
his or her opportunity for an administrative hearing and for judicial review,
whether he availed himself or herself of either or both of these opportunities
or not, the court shall enter judgment in favor of the Department and against
the taxpayer for the amount shown to be due by the final assessment or the
revised final assessment, and such judgment shall be entered of record in
the court. Such judgment shall bear the rate of interest set in the Uniform
Penalty and Interest Act, but otherwise shall have the same effect as other
judgments. The judgment shall be enforceable, and all laws applicable to
sales for the enforcement of a judgment shall be applicable to sales made
under such judgments. The Department shall file the certified copy of its
assessment, as herein provided, with the Circuit Court within 2 years after
such assessment becomes final except when the taxpayer consents in writing
to an extension of such filing period.
If, when the cause of action for a proceeding in court accrues against a
person, he or she is out of the State, the action may be commenced within the
times herein limited, after his or her coming into or return to the State;
and if, after the cause of action accrues, he or she departs from and
remains out of the State, the time of his or her absence is no part of the
time limited for the commencement of the action; but the foregoing
provisions concerning absence from the State shall not apply to any case in
which, at the time the cause of action accrues, the party against whom the
cause of action accrues is not a resident of this State. The time within
which a court action is to be commenced by the Department hereunder shall
not run while the taxpayer is a debtor in any proceeding under the Federal
Bankruptcy Act nor thereafter until 90 days after the Department is
notified by such debtor of being discharged in bankruptcy.
No claim shall be filed against the estate of any deceased person or
person under legal disability for any tax or penalty or part of either
except in the manner prescribed and within the time limited by the Probate
Act of 1975, as amended.
The remedies provided for herein shall not be exclusive, but all
remedies available to creditors for the collection of debts shall be
available for the collection of any tax or penalty due hereunder.
The collection of such tax or penalty shall not be a bar to any
prosecution under this Act.
The certificate of the Director of the Department to the effect that a
tax or amount required to be paid by this Act has not been paid, that a
return has not been filed, or that information has not been supplied
pursuant to the provisions of this Act, shall be prima facie evidence
thereof.
All of the provisions of Sections 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i and
5j of the Retailers' Occupation Tax Act which are not inconsistent
with this Act, and Section 3‑7 of the Uniform Penalty and Interest Act,
shall apply, as far as practicable, to the subject matter of
this Act to the same extent as if such provisions were included herein.
References in such incorporated Sections of the "Retailers' Occupation Tax
Act" to retailers, to sellers or to persons engaged in the business of
selling tangible personal property shall mean distributors when used in
this Act.
(Source: P.A. 87‑205.)
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(35 ILCS 135/14a) (from Ch. 120, par. 453.44a)
Sec. 14a.
If it appears, after claim therefor filed with the Department, that an
amount of tax or penalty 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
has died or become a person under legal disability,
to his or her legal representative, as such.
If it is determined that the Department should issue a credit or refund
under this Act, the Department may first apply the amount thereof against
any amount of tax or penalty due under this Act or under the Cigarette Tax
Act from the person entitled to such credit or refund. For this purpose, if
proceedings are pending to determine whether or not any tax or penalty is
due under this Act or under the Cigarette Tax Act from such person, the
Department may withhold issuance of the credit or refund pending the final
disposition of such proceedings and may apply such credit or refund against
any amount found to be due to the Department under this Act or under the
Cigarette Tax Act as a result of such proceedings. The balance, if any, of
the credit or refund shall be issued to the person entitled thereto.
If no tax or penalty is due and no proceeding is pending to determine
whether such taxpayer is indebted to the Department for tax or penalty, the
credit memorandum or refund shall be issued to the claimant; or (in the
case of a 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 or the Cigarette Tax Act, and the amount
thereof shall be applied by the Department against any tax or penalty due
or to become due under this Act or under the Cigarette Tax Act from such
assignee.
As to any claim filed hereunder with the Department on and after each
January 1 and July 1, no amount of tax or penalty erroneously paid (either
in total or partial liquidation of a tax or penalty 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 under this Act, the claim
may be filed at any time prior to the expiration of the period agreed upon.
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 the Department approves a claim for the physical replacement of
cigarette tax stamps, the Department (subject to the same limitations as
those provided for hereinbefore in this Section) may issue an assignable
credit memorandum or refund to the claimant or to the claimant's legal
representative.
Any credit or refund that is allowed under this Act shall bear interest at
the rate and in the manner set forth in the Uniform Penalty and Interest Act.
The provisions of Sections 6a, 6b and 6c of the "Retailers' Occupation
Tax Act", approved June 28, 1933, as amended, in effect on the effective
date of this amendatory Act, as subsequently amended, which are not
inconsistent with this Act, shall apply, as far as practicable, to the
subject matter of this Act to the same extent as if such provisions were
included herein.
(Source: P.A. 90‑491, eff. 1‑1‑98.)
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(35 ILCS 135/15) (from Ch. 120, par. 453.45)
Sec. 15.
Every distributor required or authorized to collect taxes imposed
by this Act and every person using, in this State, cigarettes purchased
on or after the effective date of this Act without Illinois cigarette tax
stamps affixed to the original packages thereof and without authorized tax
imprints placed underneath the sealed transparent wrapper of such original
packages, shall keep such records, receipts, invoices and other pertinent
books, documents, memoranda and papers as the Department shall require, in
such form as the Department shall require. All books, records, papers,
memoranda and documents that are required by this Act to be kept shall be kept
in the English language and shall, at all times during business hours of the
day, be subject to inspection by the Department or its duly authorized agents
and employees. The Department may adopt rules that establish requirements,
including record forms and formats, for records required to be kept and
maintained by taxpayers. For purposes of this Section, "records" means all data
maintained by the taxpayer, including data on paper, microfilm, microfiche or
any type of machine‑sensible data compilation. The books, records, papers,
memoranda and documents of a distributor pertaining to business done by him at
or from a licensed place of business, or at or from a place of business for
which he holds a permit issued by the Department under Section 7 of this Act,
shall be kept by the distributor at such place of business.
Those books, records, papers, memoranda and documents, required by this Act
to be kept, shall be preserved for a period of at least 3 years after the date
of the documents or the date of the entries appearing in the records, unless
the Department, in writing, authorizes their destruction or disposal at an
earlier date.
At all times during the usual business hours of the day any duly
authorized agent or employee of the Department may enter any place of
business of a distributor, without a search warrant, and inspect the
premises and the stock or packages of cigarettes and the vending devices
therein contained, to determine whether any of the provisions of this Act
are being violated. If such agent or employee is denied free access or is
hindered or interfered with in making such examination as herein provided,
the license of the distributor at such premises shall be subject to
revocation by the Department.
(Source: P.A. 88‑480.)
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(35 ILCS 135/16) (from Ch. 120, par. 453.46)
Sec. 16.
Every person who purchases cigarettes for shipment into Illinois
from a point outside this State, and who is required to file a return with
the Department with respect to such cigarettes, shall procure invoices in
duplicate covering each such shipment and shall furnish one copy of each
such invoice to the Department at the time of filing the return required by
this Act.
(Source: Laws 1967, p. 242.)
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(35 ILCS 135/17) (from Ch. 120, par. 453.47)
Sec. 17.
For the purpose of administering and enforcing the provisions of
this Act, the Department, or any officer or employee of the Department
designated, in writing, by the Director thereof, may hold investigations
and hearings concerning any matters covered by this Act and may examine any
books, papers, records, documents or memoranda of any distributor or user
bearing upon the sales or purchases of cigarettes the use of which is taxed
hereunder and may require the attendance of such person or any officer or
employee of such person, or of any person having knowledge of the facts,
and may take testimony and require proof for its information. In the
conduct of any investigation or hearing, neither the Department nor any
officer or employee thereof shall be bound by the technical rules of
evidence and no informality in any proceeding, or in the manner of taking
testimony, shall invalidate any order, decision, rule or regulation made or
approved or confirmed by the Department. The Director of Revenue, or any
officer or employee of the Department authorized by the Director thereof,
shall have power to administer oaths to such persons. The books, papers,
records, documents and memoranda of the Department, or parts thereof, may
be proved in any hearing, investigation, or legal proceeding by a
reproduced copy thereof under the certificate of the Director of Revenue.
Such reproduced copy shall, without further proof, be admitted into
evidence before the Department or in any legal proceeding.
(Source: Laws 1965, p. 195.)
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(35 ILCS 135/18) (from Ch. 120, par. 453.48)
Sec. 18.
The Department or any officer or employee of the Department
designated, in writing, by the Director thereof, shall at its or his or
her own instance, or on the written request of any interested party to the
proceeding issue subpoenas requiring the attendance of and the giving of
testimony by witnesses, and subpoenas duces tecum requiring the production
of books, papers, records or memoranda. All subpoenas and subpoenas duces
tecum issued under the terms of this Act may be served by any person of
full age. The fees of witnesses for attendance and travel shall be the same
as the fees of witnesses before the circuit court of this State; such fees
to be paid when the witness is excused from further attendance. When the
witness is subpoenaed at the instance of the Department or any officer or
employee thereof, such fees shall be paid in the same manner as other
expenses of the Department, and when the witness is subpoenaed at the
instance of any other party to any such proceeding, the cost of service of
the subpoena or subpoena duces tecum and the fee of the witness shall be
borne by the party at whose instance the witness is summoned. In such case
the Department, in its discretion, may require a deposit to cover the cost
of such service and witness fees. A subpoena or subpoena duces tecum so
issued shall be served in the same manner as a subpoena
or subpoena duces tecum issued out of a court.
Any circuit court of this State, upon the
application of the Department or any officer or employee thereof, or upon
the application of any other party to the proceeding, may, in its or his
discretion, compel the attendance of witnesses, the production
of books, papers, records or memoranda and the giving of testimony before the
Department or any officer or employee thereof conducting an investigation
or holding a hearing authorized by this Act, by an attachment for contempt,
or otherwise, in the same manner as production of evidence may be compelled
before the court.
The Department or any officer or employee thereof, or any other party in
an investigation or hearing before the Department, may cause the
depositions of witnesses within the State to be taken in the manner
prescribed by law for like depositions, or depositions for discovery in
civil actions in courts of this State, and to that end compel the
attendance of witnesses and the production of books, papers, records or
memoranda, in the same manner hereinbefore provided.
(Source: P.A. 83‑334.)
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(35 ILCS 135/19) (from Ch. 120, par. 453.49)
Sec. 19.
No person shall be excused from testifying or from producing any
books, papers, records, documents or memoranda in any investigation or upon
any hearing, when ordered to do so by the Department or any officer or
employee thereof, upon the ground that the testimony or evidence,
documentary or otherwise, may tend to incriminate him or subject him to a
criminal penalty, but no person shall be prosecuted or subjected to any
criminal penalty for, or on account of, any transaction made or thing
concerning which he may testify or produce evidence, documentary or
otherwise, before the Department or an officer or employee thereof;
provided, that such immunity shall extend only to a natural person who, in
obedience to a subpoena, gives testimony under oath or produces evidence,
documentary or otherwise, under oath. No person so testifying shall be
exempt from prosecution and punishment for perjury committed in so
testifying.
(Source: Laws 1951, p. 1380.)
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(35 ILCS 135/20) (from Ch. 120, par. 453.50)
Sec. 20.
All information received by the Department from returns
filed under this Act, or from any investigation conducted under this
Act, shall be confidential, except for official purposes, and any person
who divulges any such information in any manner, except in accordance
with a proper judicial order or as otherwise provided by law, shall be
guilty of a Class A misdemeanor.
Nothing in this Act prevents the Director of Revenue from publishing
or making available to the public the names and addresses of persons
filing returns under this Act, or reasonable statistics concerning the
operation of the tax by grouping the contents of returns so that the
information in any individual return is not disclosed.
Nothing in this Act prevents the Director of Revenue from divulging
to the United States Government or the government of any other state, or
any officer or agency thereof, for exclusively official purposes,
information received by the Department in administering this Act,
provided that such other governmental agency agrees to divulge requested
tax information to the Department.
The furnishing upon request of the Auditor General, or his authorized
agents, for official use, of returns filed and information related
thereto under this Act is deemed to be an official purpose within the meaning
of this Section.
The furnishing of financial information to a home rule unit with a
population in excess of 2,000,000 that has
imposed a tax similar to that imposed by this Act under its home rule powers,
upon request of the Chief Executive of the home rule unit, is an official
purpose within the meaning of this Section, provided the home rule unit agrees
in writing to the requirements of this Section. Information so provided is
subject to all confidentiality provisions of this Section. The written
agreement shall provide for reciprocity, limitations on access, disclosure,
and procedures for requesting information.
The Director may make available to any State agency, including the
Illinois Supreme Court, which licenses persons to engage in any occupation,
information that a person licensed by such agency has failed to file
returns under this Act or pay the tax, penalty and interest shown therein,
or has failed to pay any final assessment of tax, penalty or interest due
under this Act. An assessment is final when all proceedings in court for
review of such assessment have terminated or the time for the taking
thereof has expired without such proceedings being instituted.
The Director shall make available for public
inspection in the Department's principal office and for publication, at cost,
administrative decisions issued on or after January
1, 1995. These decisions are to be made available in a manner so that the
following
taxpayer information is not disclosed:
(1) The names, addresses, and identification numbers | ||
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(2) At the sole discretion of the Director, trade | ||
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The Director shall determine the
appropriate extent of the
deletions allowed in paragraph (2). In the event the taxpayer does not submit
deletions,
the Director shall make only the deletions specified in paragraph (1).
The Director shall make available for public inspection and publication an
administrative decision within 180 days after the issuance of the
administrative
decision. The term "administrative decision" has the same meaning as defined in
Section 3‑101 of Article III of the Code of Civil Procedure. Costs collected
under this Section shall be paid into the Tax Compliance and Administration
Fund.
Nothing contained in this Act shall prevent the Director from divulging
information to any person pursuant to a request or authorization made by the
taxpayer or by an authorized representative of the taxpayer.
(Source: P.A. 90‑491, eff. 1‑1‑98.)
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(35 ILCS 135/21) (from Ch. 120, par. 453.51)
Sec. 21.
The Department may make, promulgate and enforce such
reasonable rules and regulations relating
to the administration and
enforcement of this Act as may be deemed expedient.
Whenever notice is required by this Act, such notice may be given by
United States certified or registered mail, addressed to the person concerned
at his or her
last known address, and proof of such mailing shall be sufficient for the
purposes of this Act. Notice of any hearing provided for by this Act shall
be so given not less than 7 days prior to the day fixed for the hearing.
Hearings provided for in this Act shall be held:
(1) In Cook County, if the taxpayer's principal place of business is in
that county;
(2) At the Department's office nearest the taxpayer's principal place of
business, if the taxpayer's principal place of business is in Illinois but
outside Cook County;
(3) In Sangamon County, if the taxpayer's principal place of business is
outside Illinois.
The Circuit Court of the County wherein the hearing is held shall have
power to review all final administrative decisions of the Department in
administering this Act. The provisions of the Administrative Review Law,
as amended, and the
rules adopted pursuant thereto, shall apply to and govern all proceedings
for the judicial review of final administrative decisions of the Department
under this Act.
The term "administrative decision" is defined as in Section 3‑101 of the
Code of Civil Procedure.
Service upon the Director of Revenue or Assistant Director of Revenue of
the Department of Revenue of summons issued in any action to review a final
administrative decision shall be service upon the Department. The
Department shall certify the record of its proceedings if the plaintiff
in the action for judicial review shall pay to it the sum of
75� per page of
testimony taken before the Department and 25� per page of all other matters
contained in such record, except that these charges may be waived where the
Department is satisfied that the aggrieved party is a poor person who
cannot afford to pay such charges. However, before the delivery
of such record to the person applying for it payment of these charges must
be made, and if the record is not paid for within 30 days after notice that
such record is available, the
complaint may be dismissed by the court upon motion of the Department.
No stay order shall be entered by the Circuit Court unless the plaintiff
in the action for judicial review files with the court a
bond in an amount fixed and approved by the court, to indemnify the State
against all loss and injury which may be sustained by it on account of the
review proceedings and to secure all costs which may be occasioned by such
proceedings.
Whenever any proceeding provided by this Act is commenced before the
Department, either by the Department or by a person subject to this Act,
and such person thereafter dies or becomes a person under legal disability
before such
proceeding is concluded, the legal representative of the deceased or a
person under legal disability shall notify the Department of such death or legal
disability. Such legal representative, as such, shall
then be substituted
by the Department for such person. If the legal representative fails to
notify the Department of his or her appointment as such legal representative, the
Department may, upon its own motion, substitute such legal representative
in the proceeding pending before the Department for the person who died or
became a person under legal disability.
(Source: P.A. 83‑345.)
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(35 ILCS 135/21a) (from Ch. 120, par. 453.51a)
Sec. 21a.
The Illinois Administrative Procedure Act is hereby expressly
adopted and shall apply to all administrative rules and procedures of the
Department of Revenue under this Act, except that (1) paragraph (b) of Section
5‑10 of the Illinois Administrative Procedure Act does not apply to final
orders, decisions and opinions of the Department, (2) subparagraph (a)2 of
Section 5‑10 of the Illinois Administrative Procedure Act does not apply to
forms established by the Department for use under this Act, and (3) the
provisions of Section 10‑45 of the Illinois Administrative Procedure Act
regarding proposals for decision are excluded and not applicable to the
Department under this Act.
(Source: P.A. 88‑45.)
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(35 ILCS 135/22) (from Ch. 120, par. 453.52)
Sec. 22.
Any person required by this Act to keep records of any kind whatsoever,
who shall fail to keep the records so required or who shall falsify such
records, shall be guilty of a Class A misdemeanor.
This Section shall not apply if the violation in a particular case also
constitutes a criminal violation of the Cigarette Tax Act.
(Source: P. A. 77‑2229.)
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(35 ILCS 135/23) (from Ch. 120, par. 453.53)
Sec. 23.
Any person who shall fail to safely preserve the records required
by Section 15 of this Act for the period of three (3) years, as required
therein, in such manner as to insure permanency and accessibility for
inspection by the Department, shall be guilty of a business offense and may
be fined up to One Thousand Dollars ($1000).
This Section shall not apply if the violation in a particular case also
constitutes a criminal violation of the Cigarette Tax Act.
(Source: P. A. 77‑2229.)
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(35 ILCS 135/24) (from Ch. 120, par. 453.54)
Sec. 24.
Any duly authorized employee of the Department may arrest without
warrant any person committing in his presence a violation of any of the
provisions of this Act, and may without a search warrant seize any
original packages not tax stamped or tax imprinted underneath the sealed
transparent wrapper of such original packages in accordance with the
provisions of this Act and any vending device in which such packages may be
found, and such original packages or vending devices so seized shall be
subject to confiscation and forfeiture as hereinafter provided.
(Source: Laws 1953, p. 265.)
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(35 ILCS 135/25) (from Ch. 120, par. 453.55)
Sec. 25.
After seizing any original packages of cigarettes, or cigarette
vending devices, as provided in Section 24 of this Act, the Department
shall hold a hearing and shall determine whether such original packages of
cigarettes, at the time of their seizure by the Department, were not tax
stamped or tax imprinted underneath the sealed transparent wrapper of such
original packages in accordance with this Act, or whether such cigarette
vending devices, at the time of their seizure by the Department, contained
original packages of cigarettes not tax stamped or tax imprinted underneath
the sealed transparent wrapper of such original packages as required by
this Act. The Department shall give not less than 7 days' notice of the
time and place of such hearing to the owner of such property if he is
known, and also to the person in whose possession the property so taken was
found, if such person is known and if such person in possession is not the
owner of said property. In case neither the owner nor the person in
possession of such property is known, the Department shall cause
publication of the time and place of such hearing to be made at least once
in each week for 3 weeks successively in a newspaper of general circulation
in the county where such hearing is to be held.
If, as the result of such hearing, the Department shall determine that
the original packages of cigarettes seized were at the time of seizure not
tax stamped or tax imprinted underneath the sealed transparent wrapper of
such original packages as required by this Act, or that any cigarette
vending device at the time of its seizure contained original packages of
cigarettes not tax stamped or tax imprinted underneath the sealed
transparent wrapper of such original packages as required by this Act, the
Department shall enter an order declaring such original packages of
cigarettes or such cigarette vending devices confiscated and forfeited to
the State, and to be held by the Department for disposal by it as provided
in Section 27 of this Act. The Department shall give notice of such order
to the owner of such property if he is known, and also to the person in
whose possession the property so taken was found, if such person is known
and if such person in possession is not the owner of said property. In case
neither the owner nor the person in possession of such property is known,
the Department shall cause publication of such order to be made at least
once in each week for 3 weeks successively in a newspaper of general
circulation in the county where such hearing was held.
(Source: P. A. 76‑685.)
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(35 ILCS 135/25a) (from Ch. 120, par. 453.55a)
Sec. 25a.
With the exception of licensed distributors, anyone possessing
cigarettes contained in original packages which are not tax stamped as
required by this Act, or which are improperly tax stamped, shall be liable
to pay, to the Department for deposit in the State Treasury, a penalty of
$15 for each such package of cigarettes in excess of 100 packages. Such
penalty may be recovered by the Department in a civil action.
(Source: P.A. 83‑1428.)
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(35 ILCS 135/25b)
Sec. 25b.
Possession of
not less than 10 and not
more than
100 original packages not tax stamped or
improperly tax stamped; penalty. With the exception of licensed distributors,
anyone possessing
not less than 10
and not more than 100 packages of
cigarettes contained in original packages that are not tax
stamped as required by this Act, or that are improperly tax stamped, is
liable to pay to the Department, for deposit into the Tax Compliance and
Administration Fund, a penalty of $10
for each such package of
cigarettes, unless reasonable cause can be established by the person upon whom
the penalty is imposed. Reasonable cause shall be determined in each situation
in accordance with rules adopted by the Department.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/26)(from Ch. 120, par. 453.56)
Sec. 26. Whenever any peace officer of the State or any duly authorized
officer or employee of the Department shall have reason to believe that any
violation of this Act has occurred and that the person so violating the Act
has in his, her or its possession any original package of cigarettes, not
tax stamped or tax imprinted underneath the sealed transparent wrapper of
such original packages, as required by this Act, or any vending device
containing such original packages to which stamps have not been affixed, or
on which an authorized substitute for stamps has not been imprinted
underneath the sealed transparent wrapper of such original packages, as
required by this Act, he may file or cause to be filed his complaint in
writing, verified by affidavit, with any circuit court within whose
jurisdiction the premises to be searched are situated, stating the facts
upon which such belief is founded, the premises to be searched, and the
property to be seized, and procure a search warrant and execute the same.
Upon the execution of such search warrant, the peace officer, or officer or
employee of the Department, executing such search warrant shall make due
return thereof to the court issuing the same, together with an inventory of
the property taken thereunder. The court shall thereupon issue process
against the owner of such property if he is known; otherwise, such process
shall be issued against the person in whose possession the property so
taken is found, if such person is known. In case of inability to serve such
process upon the owner or the person in possession of the property at the
time of its seizure, as hereinbefore provided, notice of the proceedings
before the court shall be given as required by the statutes of the State
governing cases of Attachment. Upon the return of the process duly served
or upon the posting or publishing of notice made, as hereinabove provided,
the court or jury, if a jury shall be demanded, shall proceed to determine
whether or not such property so seized was held or possessed in violation
of this Act, or whether, if a vending device has been so seized, it
contained at the time of its seizure original packages not tax stamped or
tax imprinted underneath the sealed transparent wrapper of such original
packages as required by this Act. In case of a finding that the original
packages seized were not tax stamped or tax imprinted underneath the sealed
transparent wrapper of such original packages in accordance with the
provisions of this Act, or that any vending device so seized contained at
the time of its seizure original packages not tax stamped or tax imprinted
underneath the sealed transparent wrapper of such original packages in
accordance with the provisions of this Act, judgment shall be entered
confiscating and forfeiting the property to the State and ordering its
delivery to the Department, and in addition thereto, the court shall have
power to tax and assess the costs of the proceedings.
When any original packages or any cigarette vending device shall have
been declared forfeited to the State by any court, as hereinbefore
provided, and when such confiscated and forfeited property shall have been
delivered to the Department, as provided in this Act, the said Department
shall destroy, maintain and use in an undercover capacity, or sell such property for the best price obtainable and shall forthwith
pay over the proceeds of such sale to the State Treasurer; provided,
however, that if the value of such property to be sold at any one time
shall be $500 or more, such property shall be sold only to the highest and
best bidder on such terms and conditions and on open competitive bidding
after public advertisement, in such manner and for such terms as the
Department, by rule, may prescribe.
Upon making such a sale of original packages of cigarettes which were
not tax stamped or tax imprinted underneath the sealed transparent wrapper
of such original packages as required by this Act, the Department shall
affix a distinctive stamp to each of the original packages so sold
indicating that the same are sold pursuant to the provisions of this
Section.
(Source: P.A. 94‑776, eff. 5‑19‑06.)
(35 ILCS 135/27)(from Ch. 120, par. 453.57)
Sec. 27. When any original packages of cigarettes or any cigarette vending
device shall have been declared forfeited to the State by the Department,
as provided in Section 25 of this Act, and when all proceedings for the
judicial review of the Department's decision have terminated, the
Department shall, to the extent that its decision is sustained on review,
destroy, maintain and use in an undercover capacity, or sell such property for the best price obtainable and shall forthwith pay
over the proceeds of such sale to the State Treasurer; provided, however,
that if the value of such property to be sold at any one time shall be Five
Hundred Dollars ($500) or more, such property shall be sold only to the
highest and best bidder on such terms and conditions and on open
competitive bidding after public advertisement, in such manner and for such
terms as the Department, by rule, may prescribe.
If no complaint for review, as provided in Section 21 of this Act, has
been filed within the time required by the "Administrative Review Law,"
and if no stay order has been entered thereunder, the Department shall
proceed to sell said property for the best price obtainable and shall
forthwith pay over the proceeds of such sale to the State Treasurer;
provided, however, that if the value of such property to be sold at any one
time shall be $500 or more, such property shall be
sold only to the highest and best bidder on such terms and conditions and
on open competitive bidding after public advertisement, in such manner and
for such terms as the Department, by rule, may prescribe.
Upon making a sale of unstamped original packages of cigarettes as
provided in this Section, the Department shall affix a distinctive stamp to
each of the original packages so sold indicating that the same are sold
pursuant to the provisions of this Section.
(Source: P.A. 94‑776, eff. 5‑19‑06.)
(35 ILCS 135/28) (from Ch. 120, par. 453.58)
Sec. 28.
Any person who (a) falsely or fraudulently makes, forges, alters
or counterfeits any stamp provided for herein, (b) causes or procures to be
falsely or fraudulently made, forged, altered or counterfeited any such
stamp, (c) knowingly and wilfully utters, publishes, passes or tenders as
genuine any such false, altered, forged or counterfeited stamp, (d) falsely
or fraudulently makes, forges, alters or counterfeits any tax imprint on an
original package of cigarettes inside a sealed transparent wrapper, (e)
causes or procures falsely or fraudulently to be made, forged, altered or
counterfeited any such tax imprint or (f) knowingly and wilfully utters,
publishes, passes or tenders as genuine any such false, altered, forged or
counterfeited tax imprint, for the purpose of evading the tax imposed by
this Act, shall be guilty of a Class 3 felony.
(Source: P. A. 77‑2229.)
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(35 ILCS 135/29) (from Ch. 120, par. 453.59)
Sec. 29.
Every distributor or other person who shall knowingly and wilfully
sell or offer for sale any original package, as defined in this Act,
having affixed thereto any fraudulent, spurious, imitation or counterfeit
stamp, or stamp which has been previously affixed, or affixes a stamp which
has previously been affixed to an original package, or who shall knowingly
and wilfully sell or offer for sale any original package, as defined in
this Act, having imprinted thereon underneath the sealed transparent
wrapper thereof any fraudulent, spurious, imitation or counterfeit tax
imprint, shall be deemed guilty of a Class 2 felony.
This Section shall not apply if the violation in a particular case also
constitutes a criminal violation of the Cigarette Tax Act.
(Source: P.A. 83‑1428.)
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(35 ILCS 135/30) (from Ch. 120, par. 453.60)
Sec. 30.
Punishment for sale or possession of unstamped packages.
Any
person other than a licensed distributor who sells,
offers for sale, or has in his possession with intent to sell or offer
for sale, more than 100 original packages, not tax
stamped or tax imprinted
underneath the sealed transparent wrapper of such original package in
accordance with this Act, shall be guilty of a Class 4 felony.
Any person other than a licensed distributor who sells, offers for sale, or
has in his possession with intent to sell or offer for sale, 100 or fewer
original packages, not tax stamped or tax imprinted underneath the sealed
transparent wrapper of the original package in accordance with this Act, is
guilty of a Class A misdemeanor for the first offense and a Class 4 felony
for each subsequent offense.
Any distributor who sells an original package of cigarettes, not tax
stamped or tax imprinted underneath the sealed transparent wrapper of
such original package in accordance with this Act, except when the sale
is made under such circumstances that the tax imposed by this Act may
not legally be levied because of the Constitution or laws of the United
States, shall be guilty of a Class 3 felony.
(Source: P.A. 92‑322, eff. 1‑1‑02.)
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(35 ILCS 135/31) (from Ch. 120, par. 453.61)
Sec. 31.
Any person, or any officer, agent or employee of any person,
required by this Act to make, file, render, sign or verify any report or
return, who makes any false or fraudulent report or files any false or
fraudulent return, shall be guilty of a misdemeanor and shall be guilty of
a Class 4 felony.
(Source: P.A. 83‑1428.)
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(35 ILCS 135/32) (from Ch. 120, par. 453.62)
Sec. 32.
Any costs which may be assessed by the court upon the final determination
of any confiscation
proceedings as provided for by this Act, may be paid by the Department
out of any appropriations provided by the legislature for operating
expenses of the Department.
(Source: P.A. 83‑337.)
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(35 ILCS 135/33) (from Ch. 120, par. 453.63)
Sec. 33.
Where, at the time of terminating his business as distributor in
this State any distributor has on hand unused stamps, he or his legal
representative may transfer or sell said unused stamps to some other
licensed distributor; provided that at least twenty‑four (24) hours prior
to such transfer or sale such distributor or his legal representative shall
report to the Department in writing an intention to so sell or transfer
said stamps and the name and address of the distributor to whom such sale
or transfer is to be made, together with the total of the face amount of
each denomination of stamps to be so sold or transferred.
(Source: Laws 1951, p. 1380.)
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(35 ILCS 135/34) (from Ch. 120, par. 453.64)
Sec. 34.
It is unlawful for a person to act in this State as the agent or
representative of a distributor who does not maintain a place of business
in this State unless such distributor is the holder of a permit issued
pursuant to Section 7 of this Act. Any person who violates this provision
is guilty of a Class A misdemeanor. Each and every day any such person so
acts shall constitute a separate offense.
(Source: P.A. 83‑1428.)
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(35 ILCS 135/35) (from Ch. 120, par. 453.65)
Sec. 35.
Distribution of receipts.
All moneys received by the Department under this Act shall be distributed as
provided in subsection (a) of Section 2 of the Cigarette Tax Act.
(Source: P.A. 88‑535.)
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(35 ILCS 135/36) (from Ch. 120, par. 453.66)
Sec. 36.
This Act shall be known and may be cited as the "Cigarette Use
Tax Act."
(Source: Laws 1951, p. 1380.)
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(35 ILCS 135/37) (from Ch. 120, par. 453.67)
Sec. 37.
If any clause, sentence, Section, provision or part of this Act or the
application thereof to any person or circumstance shall be adjudged to be
unconstitutional, the remainder of said Act or its application to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
(Source: Laws 1951, p. 1380.)
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