Article 10
(35 ILCS 143/10‑1) Sec. 10‑1. Short title. This Article may be cited as the Tobacco Products Tax Act of 1995, and references in this Article to "this Act" mean this Article. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑5) Sec. 10‑5. Definitions. For purposes of this Act: "Business" means any trade, occupation, activity, or enterprise engaged in, at any location whatsoever, for the purpose of selling tobacco products. "Cigarette" has the meaning ascribed to the term in Section 1 of the Cigarette Tax Act. "Correctional Industries program" means a program run by a State penal institution in which residents of the penal institution produce tobacco products for sale to persons incarcerated in penal institutions or resident patients of a State operated mental health facility. "Department" means the Illinois Department of Revenue. "Distributor" means any of the following: (1) Any manufacturer or wholesaler in this State | ||
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(2) Any manufacturer or wholesaler engaged in the | ||
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(3) Any retailer who receives tobacco products on | ||
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"Distributor" does not include any person, wherever resident or located, who makes, manufactures, or fabricates tobacco products as part of a Correctional Industries program for sale to residents incarcerated in penal institutions or resident patients of a State operated mental health facility. "Manufacturer" means any person, wherever resident or located, who manufactures and sells tobacco products, except a person who makes, manufactures, or fabricates tobacco products as a part of a Correctional Industries program for sale to persons incarcerated in penal institutions or resident patients of a State operated mental health facility. "Person" means any natural individual, firm, partnership, association, joint stock company, joint venture, limited liability company, or public or private corporation, however formed, or a receiver, executor, administrator, trustee, conservator, or other representative appointed by order of any court. "Place of business" means and includes any place where tobacco products are sold or where tobacco products are manufactured, stored, or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train, or vending machine. "Retailer" means any person in this State engaged in the business of selling tobacco products to consumers in this State, regardless of quantity or number of sales. "Sale" means any transfer, exchange, or barter in any manner or by any means whatsoever for a consideration and includes all sales made by persons. "Tobacco products" means any cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and twist tobacco; fine‑cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings, and sweeping of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but does not include cigarettes or tobacco purchased for the manufacture of cigarettes by cigarette distributors and manufacturers defined in the Cigarette Tax Act and persons who make, manufacture, or fabricate cigarettes as a part of a Correctional Industries program for sale to residents incarcerated in penal institutions or resident patients of a State operated mental health facility. "Wholesale price" means the established list price for which a manufacturer sells tobacco products to a distributor, before the allowance of any discount, trade allowance, rebate, or other reduction. In the absence of such an established list price, the manufacturer's invoice price at which the manufacturer sells the tobacco product to unaffiliated distributors, before any discounts, trade allowances, rebates, or other reductions, shall be presumed to be the wholesale price. "Wholesaler" means any person, wherever resident or located, engaged in the business of selling tobacco products to others for the purpose of resale. (Source: P.A. 92‑231, eff. 8‑2‑01.) |
(35 ILCS 143/10‑10) Sec. 10‑10. Tax imposed. On the first day of the third month after the month in which this Act becomes law, a tax is imposed on any person engaged in business as a distributor of tobacco products, as defined in Section 10‑5, at the rate of 18% of the wholesale price of tobacco products sold or otherwise disposed of to retailers or consumers located in this State. The tax is in addition to all other occupation or privilege taxes imposed by the State of Illinois, by any political subdivision thereof, or by any municipal corporation. However, the tax is not imposed upon any activity in that business in interstate commerce or otherwise, to the extent to which that activity may not, under the Constitution and Statutes of the United States, be made the subject of taxation by this State. The tax is also not imposed on sales made to the United States or any entity thereof. All moneys received by the Department under this Act shall be paid into the Long‑Term Care Provider Fund of the State Treasury. (Source: P.A. 92‑231, eff. 8‑2‑01.) |
(35 ILCS 143/10‑15) Sec. 10‑15. Exempt sales. Purchases of tobacco products by wholesalers who will not sell the product at retail are exempt from the tax imposed by this Act. Purchases of tobacco products by wholesalers and retailers for delivery of the product outside Illinois are exempt from the tax imposed by this Act. The wholesaler making the exempt sale of tobacco products shall document this exemption by obtaining a certification from the purchaser containing the seller's name and address, the purchaser's name and address, the date of purchase, the purchaser's signature, the purchaser's tobacco products tax license number, and a statement that the purchaser is purchasing for resale other than for sale to consumers or is purchasing for delivery outside of Illinois. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑20) Sec. 10‑20. Licenses. It shall be unlawful for any person to engage in business as a distributor of tobacco products within the meaning of this Act without first having obtained a license to do so from the Department. Application for that license shall be made to the Department in a form prescribed and furnished by the Department. Each applicant for a license shall furnish to the Department on a form, signed and verified by the applicant, the following information: (1) The name of the applicant. (2) The address of the location at which the | ||
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(3) Other information the Department may reasonably | ||
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Except as otherwise provided in this Section, every applicant who is required to procure a distributor's license shall file with his or her application a joint and several bond. The 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, conditioned upon the true and faithful compliance by the licensee with all of the provisions of this Act. The Department shall fix the amount of the bond for each applicant, taking into consideration the amount of money expected to become due from the applicant under this Act. The amount of bond required by the Department shall be an amount that, in its opinion, will protect the State of Illinois against failure to pay the amount that may become due from the applicant under this Act, but the amount of the security required by the Department shall not exceed 3 times the amount of the applicant's average monthly tax liability, or $50,000, whichever amount is lower. The bond, a reissue, or a substitute shall be kept in full force and effect during the entire period covered by the license. A separate application for license shall be made, and bond filed, for each place of business at which a person who is required to procure a distributor's license proposes to engage in business as a distributor under this Act. The Department, upon receipt of an application and bond in proper form, shall issue to the applicant a license, in a form prescribed by the Department, which shall permit the applicant to whom it is issued to engage in business as a distributor at the place shown on his or her application. The license shall be issued by the Department without charge or cost to the applicant. No license issued under this Act is transferable or assignable. The license shall be conspicuously displayed in the place of business conducted by the licensee under the license. The bonding requirement in this Section does not apply to an applicant for a distributor's license who is already bonded under the Cigarette Tax Act or the Cigarette Use Tax Act. Licenses issued by the Department under this Act shall be valid for a period not to exceed one year after issuance unless sooner revoked, canceled, or suspended as provided in this Act. No license shall be issued to any person who is in default to the State of Illinois for moneys due under this Act or any other tax Act administered by the Department. The Department may, in its discretion, upon application, authorize the payment of the tax imposed under Section 10‑10 by any distributor or manufacturer not otherwise subject to the tax imposed under this Act who, to the satisfaction of the Department, furnishes adequate security to ensure payment of the tax. The distributor or manufacturer shall be issued, without charge, a license to remit the tax. When so authorized, it shall be the duty of the distributor or manufacturer to remit the tax imposed upon the wholesale price of tobacco products sold or otherwise disposed of to retailers or consumers located in this State, in the same manner and subject to the same requirements as any other distributor or manufacturer licensed under this Act. The Department may revoke, suspend, or cancel the license of a distributor of roll‑your‑own tobacco (as that term is used in Section 10 of the Tobacco Product Manufacturers' Escrow Act) under this Act if the tobacco product manufacturer, as defined in Section 10 of the Tobacco Product Manufacturers' Escrow Act, that made or sold the roll‑your‑own tobacco 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 roll‑your‑own tobacco 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. Any person aggrieved by any decision of the Department under this Section may, within 20 days after notice of that decision, protest and request a hearing, whereupon the Department must give notice to that person of the time and place fixed for the hearing and must 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 such a protest within 20 days, the Department's decision becomes final without any further determination being made or notice given. (Source: P.A. 92‑231, eff. 8‑2‑01; 92‑737, eff. 7‑25‑02.) |
(35 ILCS 143/10‑25) Sec. 10‑25. License actions. The Department may, after notice and a hearing, revoke, cancel, or suspend the license of any distributor who violates any of the provisions of this Act. The notice shall specify the alleged violation or violations upon which the revocation, cancellation, or suspension proceeding is based. 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. The Department may, by application to any circuit court, obtain an injunction restraining any person who engages in business as a distributor of tobacco products without a license (either because his or her license has been revoked, canceled, or suspended or because of a failure to obtain a license in the first instance) from engaging in that business until that person, as if that person were a new applicant for a license, complies with all of the conditions, restrictions, and requirements of Section 10‑20 of this Act and qualifies for and obtains a license. Refusal or neglect to obey the order of the court may result in punishment for contempt. (Source: P.A. 92‑737, eff. 7‑25‑02.) |
(35 ILCS 143/10‑30) Sec. 10‑30. Returns. Every distributor shall, on or before the 15th day of each month, file a return with the Department covering the preceding calendar month. The return shall disclose the wholesale price for tobacco products sold or otherwise disposed of and other information that the Department may reasonably require. The return shall be filed upon a form prescribed and furnished by the Department. At the time when any return of any distributor is due to be filed with the Department, the distributor shall also remit to the Department the tax liability that the distributor has incurred for transactions occurring in the preceding calendar month. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑35) Sec. 10‑35. Record keeping. Every distributor, as defined in Section 10‑5, shall keep complete and accurate records of tobacco products held, purchased, manufactured, brought in or caused to be brought in from without the State, and tobacco products sold, or otherwise disposed of, and shall preserve and keep all invoices, bills of lading, sales records, and copies of bills of sale, the wholesale price for tobacco products sold or otherwise disposed of, an inventory of tobacco products prepared as of December 31 of each year or as of the last day of the distributor's fiscal year if he or she files federal income tax returns on the basis of a fiscal year, and other pertinent papers and documents relating to the manufacture, purchase, sale, or disposition of tobacco products. Books, records, papers, and documents that are required by this Act to be kept shall, at all times during the usual business hours of the day, be subject to inspection by the Department or its duly authorized agents and employees. The books, records, papers, and documents for any period with respect to which the Department is authorized to issue a notice of tax liability shall be preserved until the expiration of that period. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑40) Sec. 10‑40. Invoices. Every distributor who purchases tobacco products for shipment into Illinois from a point outside Illinois shall procure invoices in duplicate covering each shipment and shall, if the Department so requires, furnish one copy of each invoice to the Department at the time of filing the return required by this Act. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑45) Sec. 10‑45. Incorporation by reference. All of the provisions of Sections 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5h, 5i, 5j, 6, 6a, 6b, 6c, 8, 9, 10, 11, 11a, and 12 of the Retailers' Occupation Tax Act, and all applicable provisions of the Uniform Penalty and Interest Act that are not inconsistent with this Act, apply to distributors of tobacco products to the same extent as if those provisions were included in this Act. References in the incorporated Sections of the Retailers' Occupation Tax Act to retailers, to sellers, or to persons engaged in the business of selling tangible personal property mean distributors when used in this Act. References in the incorporated Sections to sales of tangible personal property mean sales of tobacco products when used in this Act. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑50) Sec. 10‑50. Violations and penalties. When the amount due is under $300, any distributor who fails to file a return, wilfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or files a fraudulent return, or any officer or agent of a corporation engaged in the business of distributing tobacco products to retailers and consumers located in this State who signs a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 4 felony. Any person who violates any provision of Section 10‑20 of this Act, fails to keep books and records as required under this Act, or wilfully violates a rule or regulation of the Department for the administration and enforcement of this Act is guilty of a Class 4 felony. A person commits a separate offense on each day that he or she engages in business in violation of Section 10‑20 of this Act. When the amount due is under $300, any person who accepts money that is due to the Department under this Act from a taxpayer for the purpose of acting as the taxpayer's agent to make the payment to the Department, but who fails to remit the payment to the Department when due, is guilty of a Class 4 felony. When the amount due is $300 or more, any distributor who files, or causes to be filed, a fraudulent return, or any officer or agent of a corporation engaged in the business of distributing tobacco products to retailers and consumers located in this State who files or causes to be filed or signs or causes to be signed a fraudulent return filed on behalf of the corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act is guilty of a Class 3 felony. When the amount due is $300 or more, any person engaged in the business of distributing tobacco products to retailers and consumers located in this State who fails to file a return, wilfully fails or refuses to make any payment to the Department of the tax imposed by this Act, or accepts money that is due to the Department under this Act from a taxpayer for the purpose of acting as the taxpayer's agent to make payment to the Department but fails to remit such payment to the Department when due is guilty of a Class 3 felony. Any person whose principal place of business is in this State and who is charged with a violation under this Section shall be tried in the county where his or her principal place of business is located unless he or she asserts a right to be tried in another venue. If the taxpayer does not have his or her principal place of business in this State, however, the hearing must be held in Sangamon County unless the taxpayer asserts a right to be tried in another venue. Any taxpayer or agent of a taxpayer who with the intent to defraud purports to make a payment due to the Department by issuing or delivering a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository, is guilty of a deceptive practice in violation of Section 17‑1 of the Criminal Code of 1961. A prosecution for a violation described in this Section may be commenced within 3 years after the commission of the act constituting the violation. (Source: P.A. 92‑231, eff. 8‑2‑01.) |
(35 ILCS 143/10‑55) Sec. 10‑55. Arrest; search and seizure without warrant. Any duly authorized employee of the Department (i) may arrest without warrant any person committing in his or her presence a violation of any of the provisions of this Act, (ii) may without a search warrant inspect all tobacco products located in any place of business, (iii) may seize any tobacco products in accordance with the provisions of this Act, and (iv) may seize any vending device in which those tobacco products are found. The tobacco products and vending devices so seized are subject to confiscation and forfeiture as provided in Sections 10‑56 through 10‑58. (Source: P.A. 92‑743, eff. 7‑25‑02.) |
(35 ILCS 143/10‑56) Sec. 10‑56. Seizure and forfeiture. After seizing any tobacco products or vending devices, as provided in Section 10‑55, the Department must hold a hearing and determine whether the distributor or retailer was properly licensed to sell the tobacco products at the time of their seizure by the Department. The Department shall give not less than 20 days' notice of the time and place of the hearing to the owner of the property, if the owner is known, and also to the person in whose possession the property was found, if that person is known and if the person in possession is not the owner of the property. If neither the owner nor the person in possession of the property is known, the Department must cause publication of the time and place of the hearing to be made at least once in each week for 3 weeks successively in a newspaper of general circulation in the county where the hearing is to be held. If, as the result of the hearing, the Department determines that the distributor or retailer was not properly licensed at the time the tobacco products were seized, the Department must enter an order declaring the tobacco products or vending devices confiscated and forfeited to the State, to be held by the Department for disposal by it as provided in Section 10‑58. The Department must give notice of the order to the owner of the property, if the owner is known, and also to the person in whose possession the property was found, if that person is known and if the person in possession is not the owner of the property. If neither the owner nor the person in possession of the property is known, the Department must cause publication of the order to be made at least once in each week for 3 weeks successively in a newspaper of general circulation in the county where the hearing was held. (Source: P.A. 92‑743, eff. 7‑25‑02.) |
(35 ILCS 143/10‑57) Sec. 10‑57. Search warrant; issuance and return; process; confiscation of property; forfeitures. If a peace officer of this State or any duly authorized officer or employee of the Department has reason to believe that any violation of this Act has occurred and that the person violating the Act has in that person's possession any tobacco products or vending device containing tobacco products, that peace officer or officer or employee of the Department may file or cause to be filed his or her complaint in writing, verified by affidavit, with any court within whose jurisdiction the premises to be searched are situated, stating the facts upon which the belief is founded, the premises to be searched, and the property to be seized, and procure a search warrant and execute that warrant. Upon the execution of the search warrant, the peace officer, or officer or employee of the Department, executing the search warrant shall make due return of the warrant to the court issuing the warrant, together with an inventory of the property taken under the warrant. The court must then issue process against the owner of the property if the owner is known; otherwise, process must be issued against the person in whose possession the property is found, if that person is known. In case of inability to serve process upon the owner or the person in possession of the property at the time of its seizure, notice of the proceedings before the court must be given in the same manner as required by the law governing cases of attachment. Upon the return of the process duly served or upon the posting or publishing of notice made, as appropriate, the court or jury, if a jury is demanded, shall proceed to determine whether or not the property so seized was held or possessed in violation of this Act. If a violation is found, judgment shall be entered confiscating the property and forfeiting it to the State and ordering its delivery to the Department. In addition, the court may tax and assess the costs of the proceedings. When any tobacco products or any vending devices are declared forfeited to the State by any court and the confiscated and forfeited property is delivered to the Department, the Department shall sell the property for the best price obtainable and shall forthwith pay over the proceeds of the sale to the State Treasurer. If the value of the property to be sold at any one time is $500 or more, however, the property shall be sold only to the highest and best bidder on terms and conditions, and on open competitive bidding after public advertisement, in a manner and for terms as the Department, by rule, may prescribe. (Source: P.A. 92‑743, eff. 7‑25‑02.) |
(35 ILCS 143/10‑90) Sec. 10‑90. The Tobacco Products Tax Act is repealed. (Source: P.A. 89‑21, eff. 6‑6‑95.) |
(35 ILCS 143/10‑95) Sec. 10‑95. (Amendatory provisions; text omitted). (Source: P.A. 89‑21, eff. 6‑6‑95.) |