Bill Text: IL HB4054 | 2023-2024 | 103rd General Assembly | Introduced
Bill Title: Amends the Use Tax Act, the Service Use Tax Act, and the Retailers' Occupation Tax Act. Provides that a delivery network company that delivers tangible personal property on behalf of a marketplace seller or a marketplace serviceman is not considered a marketplace facilitator. Provides that a delivery network company is a business that facilitates, through the use of an Internet website or mobile application, the delivery of local products. Provides that a local product is any item, including food, other than freight, mail, or a package to which postage has been affixed. Effective immediately.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2023-04-27 - Referred to Rules Committee [HB4054 Detail]
Download: Illinois-2023-HB4054-Introduced.html
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1 | AN ACT concerning revenue.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Use Tax Act is amended by changing Section | |||||||||||||||||||||||
5 | 2d as follows:
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6 | (35 ILCS 105/2d) | |||||||||||||||||||||||
7 | Sec. 2d. Marketplace facilitators and marketplace sellers. | |||||||||||||||||||||||
8 | (a) As used in this Section: | |||||||||||||||||||||||
9 | "Affiliate" means a person that, with respect to another | |||||||||||||||||||||||
10 | person: (i) has a direct or indirect ownership interest of | |||||||||||||||||||||||
11 | more than 5 percent in the other person; or (ii) is related to | |||||||||||||||||||||||
12 | the other person because a third person, or a group of third | |||||||||||||||||||||||
13 | persons who are affiliated with each other as defined in this | |||||||||||||||||||||||
14 | subsection, holds a direct or indirect ownership interest of | |||||||||||||||||||||||
15 | more than 5% in the related person. | |||||||||||||||||||||||
16 | "Delivery network company" means a business that | |||||||||||||||||||||||
17 | facilitates, through the use of an Internet website or mobile | |||||||||||||||||||||||
18 | application, the delivery of local products. | |||||||||||||||||||||||
19 | "Local product" means any item, including food, other than | |||||||||||||||||||||||
20 | freight, mail, or a package to which
postage has been affixed. | |||||||||||||||||||||||
21 | "Marketplace" means a physical or electronic place, forum, | |||||||||||||||||||||||
22 | platform, application, or other method by which a marketplace | |||||||||||||||||||||||
23 | seller sells or offers to sell items. |
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1 | "Marketplace facilitator" means a person who, pursuant to | ||||||
2 | an agreement with an unrelated third-party marketplace seller, | ||||||
3 | directly or indirectly through one or more affiliates | ||||||
4 | facilitates a retail sale by an unrelated third party | ||||||
5 | marketplace seller by: | ||||||
6 | (1) listing or advertising for sale by the marketplace | ||||||
7 | seller in a marketplace, tangible personal property that | ||||||
8 | is subject to tax under this Act; and | ||||||
9 | (2) either directly or indirectly, through agreements | ||||||
10 | or arrangements with third parties, collecting payment | ||||||
11 | from the customer and transmitting that payment to the | ||||||
12 | marketplace seller regardless of whether the marketplace | ||||||
13 | facilitator receives compensation or other consideration | ||||||
14 | in exchange for its services. | ||||||
15 | "Marketplace facilitator" does not include a delivery | ||||||
16 | network company that delivers tangible personal property on | ||||||
17 | behalf of a marketplace seller that is engaged in business as a | ||||||
18 | retail vendor. | ||||||
19 | "Marketplace seller" means a person that sells or offers | ||||||
20 | to sell tangible personal property through a marketplace | ||||||
21 | operated by an unrelated third-party marketplace facilitator. | ||||||
22 | (b) Beginning on January 1, 2020, a marketplace | ||||||
23 | facilitator who meets either of the following thresholds is | ||||||
24 | considered the retailer for each sale of tangible personal | ||||||
25 | property made through its marketplace: | ||||||
26 | (1) the cumulative gross receipts from sales of |
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1 | tangible personal property to purchasers in Illinois by | ||||||
2 | the marketplace facilitator and by marketplace sellers | ||||||
3 | selling through the marketplace are $100,000 or more; or | ||||||
4 | (2) the marketplace facilitator and marketplace | ||||||
5 | sellers selling through the marketplace cumulatively enter | ||||||
6 | into 200 or more separate transactions for the sale of | ||||||
7 | tangible personal property to purchasers in Illinois. | ||||||
8 | A marketplace facilitator shall determine on a quarterly | ||||||
9 | basis, ending on the last day of March, June, September, and | ||||||
10 | December, whether he or she meets the threshold of either | ||||||
11 | paragraph (1) or (2) of this subsection (b) for the preceding | ||||||
12 | 12-month period. If the marketplace facilitator meets the | ||||||
13 | threshold of either paragraph (1) or (2) for a 12-month | ||||||
14 | period, he or she is considered a retailer maintaining a place | ||||||
15 | of business in this State and is required to collect and remit | ||||||
16 | the tax imposed under this Act and file returns for one year. | ||||||
17 | At the end of that one-year period, the marketplace | ||||||
18 | facilitator shall determine whether the marketplace | ||||||
19 | facilitator met the threshold of either paragraph (1) or (2) | ||||||
20 | during the preceding 12-month period. If the marketplace | ||||||
21 | facilitator met the threshold in either paragraph (1) or (2) | ||||||
22 | for the preceding 12-month period, he or she is considered a | ||||||
23 | retailer maintaining a place of business in this State and is | ||||||
24 | required to collect and remit the tax imposed under this Act | ||||||
25 | and file returns for the subsequent year. If at the end of a | ||||||
26 | one-year period a marketplace facilitator that was required to |
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1 | collect and remit the tax imposed under this Act determines | ||||||
2 | that he or she did not meet the threshold in either paragraph | ||||||
3 | (1) or (2) during the preceding 12-month period, the | ||||||
4 | marketplace facilitator shall subsequently determine on a | ||||||
5 | quarterly basis, ending on the last day of March, June, | ||||||
6 | September, and December, whether he or she meets the threshold | ||||||
7 | of either paragraph (1) or (2) for the preceding 12-month | ||||||
8 | period. | ||||||
9 | (c) Beginning on January 1, 2020 a marketplace facilitator | ||||||
10 | considered to be the retailer pursuant to subsection (b) of | ||||||
11 | this Section is considered the retailer with respect to each | ||||||
12 | sale made through its marketplace and is liable for collecting | ||||||
13 | and remitting the tax under this Act on all such sales. The | ||||||
14 | marketplace facilitator who is considered to be the retailer | ||||||
15 | under subsection (b) for sales made through its marketplace | ||||||
16 | has all the rights and duties, and is required to comply with | ||||||
17 | the same requirements and procedures, as all other retailers | ||||||
18 | maintaining a place of business in this State who are | ||||||
19 | registered or who are required to be registered to collect and | ||||||
20 | remit the tax imposed by this Act with respect to such sales. | ||||||
21 | (d) A marketplace facilitator shall: | ||||||
22 | (1) certify to each marketplace seller that the | ||||||
23 | marketplace facilitator assumes the rights and duties of a | ||||||
24 | retailer under this Act with respect to sales made by the | ||||||
25 | marketplace seller through the marketplace; and | ||||||
26 | (2) collect taxes imposed by this Act as required by |
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1 | Section 3-45 of this Act for sales made through the | ||||||
2 | marketplace. | ||||||
3 | (e) A marketplace seller shall retain books and records | ||||||
4 | for all sales made through a marketplace in accordance with | ||||||
5 | the requirements of Section 11. | ||||||
6 | (f) A marketplace seller shall furnish to the marketplace | ||||||
7 | facilitator information that is necessary for the marketplace | ||||||
8 | facilitator to correctly collect and remit taxes for a retail | ||||||
9 | sale. The information may include a certification that an item | ||||||
10 | being sold is taxable, not taxable, exempt from taxation, or | ||||||
11 | taxable at a specified rate. A marketplace seller shall be | ||||||
12 | held harmless for liability for the tax imposed under this Act | ||||||
13 | when a marketplace facilitator fails to correctly collect and | ||||||
14 | remit tax after having been provided with information by a | ||||||
15 | marketplace seller to correctly collect and remit taxes | ||||||
16 | imposed under this Act. | ||||||
17 | (g) If the marketplace facilitator demonstrates to the | ||||||
18 | satisfaction of the Department that its failure to correctly | ||||||
19 | collect and remit tax on a retail sale resulted from the | ||||||
20 | marketplace facilitator's good faith reliance on incorrect or | ||||||
21 | insufficient information provided by a marketplace seller, it | ||||||
22 | shall be relieved of liability for the tax on that retail sale. | ||||||
23 | In this case, a marketplace seller is liable for any resulting | ||||||
24 | tax due. | ||||||
25 | (h) (Blank). | ||||||
26 | (i) This Section does not affect the tax liability of a |
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1 | purchaser under this Act. | ||||||
2 | (j) (Blank).
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3 | (k) A marketplace facilitator required to collect taxes | ||||||
4 | imposed under this Section and this Act on retail sales made | ||||||
5 | through its marketplace shall be liable to the Department for | ||||||
6 | such taxes, except when the marketplace facilitator is | ||||||
7 | relieved of the duty to remit such taxes by virtue of having | ||||||
8 | paid to the Department taxes imposed by the Retailers' | ||||||
9 | Occupation Tax Act upon his or her gross receipts from the same | ||||||
10 | transactions. | ||||||
11 | (l) If, for any reason, the Department is prohibited from | ||||||
12 | enforcing the marketplace facilitator's duty under this Act to | ||||||
13 | collect and remit taxes pursuant to this Section, the duty to | ||||||
14 | collect and remit such taxes reverts to the marketplace seller | ||||||
15 | that is a retailer maintaining a place of business in this | ||||||
16 | State pursuant to Section 2. | ||||||
17 | (Source: P.A. 101-9, eff. 6-5-19; 101-604, eff. 1-1-20.)
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18 | Section 10. The Service Use Tax Act is amended by changing | ||||||
19 | Section 2d as follows:
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20 | (35 ILCS 110/2d) | ||||||
21 | Sec. 2d. Marketplace facilitators and marketplace | ||||||
22 | servicemen. | ||||||
23 | (a) Definitions. For purposes of this Section: | ||||||
24 | "Affiliate" means a person that, with respect to another |
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1 | person: (i) has a direct or indirect ownership interest of | ||||||
2 | more than 5% in the other person; or (ii) is related to the | ||||||
3 | other person because a third person, or group of third persons | ||||||
4 | who are affiliated with each other as defined in this | ||||||
5 | subsection, holds a direct or indirect ownership interest of | ||||||
6 | more than 5% in the related person. | ||||||
7 | "Delivery network company" means a business that | ||||||
8 | facilitates, through the use of an Internet website or mobile | ||||||
9 | application, the delivery of local products. | ||||||
10 | "Local product" means any item, including food, other than | ||||||
11 | freight, mail, or a package to which
postage has been affixed. | ||||||
12 | "Marketplace" means a physical or electronic place, forum, | ||||||
13 | platform, application or other method by which a marketplace | ||||||
14 | serviceman makes or offers to make sales of service. | ||||||
15 | "Marketplace facilitator" means a person who, pursuant to | ||||||
16 | an agreement with a marketplace serviceman, facilitates sales | ||||||
17 | of service by that marketplace serviceman. A person | ||||||
18 | facilitates a sale of service by, directly or indirectly | ||||||
19 | through one or more affiliates, doing both of the following: | ||||||
20 | (i) listing or otherwise making available a sale of service of | ||||||
21 | the marketplace serviceman through a marketplace owned or | ||||||
22 | operated by the marketplace facilitator; and (ii) processing | ||||||
23 | sales of service for, or payments for sales of service by, | ||||||
24 | marketplace servicemen. | ||||||
25 | "Marketplace facilitator" does not include a delivery | ||||||
26 | network company that delivers tangible personal property on |
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1 | behalf of a marketplace serviceman that is engaged in business | ||||||
2 | as a retail vendor. | ||||||
3 | "Marketplace serviceman" means a person that makes or | ||||||
4 | offers to make a sale of service through a marketplace. | ||||||
5 | (b) Beginning January 1, 2020, a marketplace facilitator | ||||||
6 | who meets either of the following criteria is considered the | ||||||
7 | serviceman for each sale of service made on the marketplace: | ||||||
8 | (1) the cumulative gross receipts from sales of | ||||||
9 | service to purchasers in Illinois by the marketplace | ||||||
10 | facilitator and by marketplace servicemen are $100,000 or | ||||||
11 | more; or | ||||||
12 | (2) the marketplace facilitator and marketplace | ||||||
13 | servicemen cumulatively enter into 200 or more separate | ||||||
14 | transactions for the sale of service to purchasers in | ||||||
15 | Illinois. | ||||||
16 | A marketplace facilitator shall determine on a quarterly | ||||||
17 | basis, ending on the last day of March, June, September, and | ||||||
18 | December, whether he or she meets the criteria of either | ||||||
19 | paragraph (1) or (2) of this subsection (b) for the preceding | ||||||
20 | 12-month period. If the marketplace facilitator meets the | ||||||
21 | criteria of either paragraph (1) or (2) for a 12-month period, | ||||||
22 | he or she is considered a serviceman maintaining a place of | ||||||
23 | business in this State and is required to collect and remit the | ||||||
24 | tax imposed under this Act and file returns for one year. At | ||||||
25 | the end of that one-year period, the marketplace facilitator | ||||||
26 | shall determine whether the marketplace facilitator met the |
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1 | criteria of either paragraph (1) or (2) during the preceding | ||||||
2 | 12-month period. If the marketplace facilitator met the | ||||||
3 | criteria in either paragraph (1) or (2) for the preceding | ||||||
4 | 12-month period, he or she is considered a serviceman | ||||||
5 | maintaining a place of business in this State and is required | ||||||
6 | to collect and remit the tax imposed under this Act and file | ||||||
7 | returns for the subsequent year. If, at the end of a one-year | ||||||
8 | period, a marketplace facilitator that was required to collect | ||||||
9 | and remit the tax imposed under this Act determines that he or | ||||||
10 | she did not meet the criteria in either paragraph (1) or (2) | ||||||
11 | during the preceding 12-month period, the marketplace | ||||||
12 | facilitator shall subsequently determine on a quarterly basis, | ||||||
13 | ending on the last day of March, June, September, and | ||||||
14 | December, whether he or she meets the criteria of either | ||||||
15 | paragraph (1) or (2) for the preceding 12-month period. | ||||||
16 | (c) A marketplace facilitator that meets either of the | ||||||
17 | thresholds in subsection (b) of this Section is considered the | ||||||
18 | serviceman for each sale of service made through its | ||||||
19 | marketplace and is liable for collecting and remitting the tax | ||||||
20 | under this Act on all such sales. The marketplace facilitator | ||||||
21 | has all the rights and duties, and is required to comply with | ||||||
22 | the same requirements and procedures, as all other servicemen | ||||||
23 | maintaining a place of business in this State who are | ||||||
24 | registered or who are required to be registered to collect and | ||||||
25 | remit the tax imposed by this Act. | ||||||
26 | (d) A marketplace facilitator shall: |
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1 | (1) certify to each marketplace serviceman that the | ||||||
2 | marketplace facilitator assumes the rights and duties of a | ||||||
3 | serviceman under this Act with respect to sales of service | ||||||
4 | made by the marketplace serviceman through the | ||||||
5 | marketplace; and | ||||||
6 | (2) collect taxes imposed by this Act as required by | ||||||
7 | Section 3-40 of this Act for sales of service made through | ||||||
8 | the marketplace. | ||||||
9 | (e) A marketplace serviceman shall retain books and | ||||||
10 | records for all sales of service made through a marketplace in | ||||||
11 | accordance with the requirements of Section 11. | ||||||
12 | (f) A marketplace serviceman shall furnish to the | ||||||
13 | marketplace facilitator information that is necessary for the | ||||||
14 | marketplace facilitator to correctly collect and remit taxes | ||||||
15 | for a sale of service. The information may include a | ||||||
16 | certification that an item transferred incident to a sale of | ||||||
17 | service under this Act is taxable, not taxable, exempt from | ||||||
18 | taxation, or taxable at a specified rate. A marketplace | ||||||
19 | serviceman shall be held harmless for liability for the tax | ||||||
20 | imposed under this Act when a marketplace facilitator fails to | ||||||
21 | correctly collect and remit tax after having been provided | ||||||
22 | with information by a marketplace serviceman to correctly | ||||||
23 | collect and remit taxes imposed under this Act. | ||||||
24 | (g) Except as provided in subsection (h), if the | ||||||
25 | marketplace facilitator demonstrates to the satisfaction of | ||||||
26 | the Department that its failure to correctly collect and remit |
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1 | tax on a sale of service resulted from the marketplace | ||||||
2 | facilitator's good faith reliance on incorrect or insufficient | ||||||
3 | information provided by a marketplace serviceman, it shall be | ||||||
4 | relieved of liability for the tax on that sale of service. In | ||||||
5 | this case, a marketplace serviceman is liable for any | ||||||
6 | resulting tax due. | ||||||
7 | (h) A marketplace facilitator and marketplace serviceman | ||||||
8 | that are affiliates, as defined by subsection (a), are jointly | ||||||
9 | and severally liable for tax liability resulting from a sale | ||||||
10 | of service made by the affiliated marketplace serviceman | ||||||
11 | through the marketplace. | ||||||
12 | (i) This Section does not affect the tax liability of a | ||||||
13 | purchaser under this Act. | ||||||
14 | (j) The Department may adopt rules for the administration | ||||||
15 | and enforcement of the provisions of this Section.
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16 | (Source: P.A. 101-9, eff. 6-5-19.)
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17 | Section 15. The Retailers' Occupation Tax Act is amended | ||||||
18 | by changing Section 1 as follows:
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19 | (35 ILCS 120/1) (from Ch. 120, par. 440)
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20 | Sec. 1. Definitions. "Sale at retail" means any transfer | ||||||
21 | of the
ownership of or title to
tangible personal property to a | ||||||
22 | purchaser, for the purpose of use or
consumption, and not for | ||||||
23 | the purpose of resale in any form as tangible
personal | ||||||
24 | property to the extent not first subjected to a use for which |
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1 | it
was purchased, for a valuable consideration: Provided that | ||||||
2 | the property
purchased is deemed to be purchased for the | ||||||
3 | purpose of resale, despite
first being used, to the extent to | ||||||
4 | which it is resold as an ingredient of
an intentionally | ||||||
5 | produced product or byproduct of manufacturing. For this
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6 | purpose, slag produced as an incident to manufacturing pig | ||||||
7 | iron or steel
and sold is considered to be an intentionally | ||||||
8 | produced byproduct of
manufacturing. Transactions whereby the | ||||||
9 | possession of the property is
transferred but the seller | ||||||
10 | retains the title as security for payment of the
selling price | ||||||
11 | shall be deemed to be sales.
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12 | "Sale at retail" shall be construed to include any | ||||||
13 | transfer of the
ownership of or title to tangible personal | ||||||
14 | property to a purchaser, for use
or consumption by any other | ||||||
15 | person to whom such purchaser may transfer the
tangible | ||||||
16 | personal property without a valuable consideration, and to | ||||||
17 | include
any transfer, whether made for or without a valuable | ||||||
18 | consideration, for
resale in any form as tangible personal | ||||||
19 | property unless made in compliance
with Section 2c of this | ||||||
20 | Act.
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21 | Sales of tangible personal property, which property, to | ||||||
22 | the extent not
first subjected to a use for which it was | ||||||
23 | purchased, as an ingredient or
constituent, goes into and | ||||||
24 | forms a part of tangible personal property
subsequently the | ||||||
25 | subject of a "Sale at retail", are not sales at retail as
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26 | defined in this Act: Provided that the property purchased is |
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1 | deemed to be
purchased for the purpose of resale, despite | ||||||
2 | first being used, to the
extent to which it is resold as an | ||||||
3 | ingredient of an intentionally produced
product or byproduct | ||||||
4 | of manufacturing.
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5 | "Sale at retail" shall be construed to include any | ||||||
6 | Illinois florist's
sales transaction in which the purchase | ||||||
7 | order is received in Illinois by a
florist and the sale is for | ||||||
8 | use or consumption, but the Illinois florist
has a florist in | ||||||
9 | another state deliver the property to the purchaser or the
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10 | purchaser's donee in such other state.
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11 | Nonreusable tangible personal property that is used by | ||||||
12 | persons engaged in
the business of operating a restaurant, | ||||||
13 | cafeteria, or drive-in is a sale for
resale when it is | ||||||
14 | transferred to customers in the ordinary course of business
as | ||||||
15 | part of the sale of food or beverages and is used to deliver, | ||||||
16 | package, or
consume food or beverages, regardless of where | ||||||
17 | consumption of the food or
beverages occurs. Examples of those | ||||||
18 | items include, but are not limited to
nonreusable, paper and | ||||||
19 | plastic cups, plates, baskets, boxes, sleeves, buckets
or | ||||||
20 | other containers, utensils, straws, placemats, napkins, doggie | ||||||
21 | bags, and
wrapping or packaging
materials that are transferred | ||||||
22 | to customers as part of the sale of food or
beverages in the | ||||||
23 | ordinary course of business.
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24 | The purchase, employment and transfer of such tangible | ||||||
25 | personal property
as newsprint and ink for the primary purpose | ||||||
26 | of conveying news (with or
without other information) is not a |
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1 | purchase, use or sale of tangible
personal property.
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2 | A person whose activities are organized and conducted | ||||||
3 | primarily as a
not-for-profit service enterprise, and who | ||||||
4 | engages in selling tangible
personal property at retail | ||||||
5 | (whether to the public or merely to members and
their guests) | ||||||
6 | is engaged in the business of selling tangible personal
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7 | property at retail with respect to such transactions, | ||||||
8 | excepting only a
person organized and operated exclusively for | ||||||
9 | charitable, religious or
educational purposes either (1), to | ||||||
10 | the extent of sales by such person to
its members, students, | ||||||
11 | patients or inmates of tangible personal property to
be used | ||||||
12 | primarily for the purposes of such person, or (2), to the | ||||||
13 | extent of
sales by such person of tangible personal property | ||||||
14 | which is not sold or
offered for sale by persons organized for | ||||||
15 | profit. The selling of school
books and school supplies by | ||||||
16 | schools at retail to students is not
"primarily for the | ||||||
17 | purposes of" the school which does such selling. The
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18 | provisions of this paragraph shall not apply to nor subject to | ||||||
19 | taxation
occasional dinners, socials or similar activities of | ||||||
20 | a person organized and
operated exclusively for charitable, | ||||||
21 | religious or educational purposes,
whether or not such | ||||||
22 | activities are open to the public.
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23 | A person who is the recipient of a grant or contract under | ||||||
24 | Title VII of
the Older Americans Act of 1965 (P.L. 92-258) and | ||||||
25 | serves meals to
participants in the federal Nutrition Program | ||||||
26 | for the Elderly in return for
contributions established in |
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1 | amount by the individual participant pursuant
to a schedule of | ||||||
2 | suggested fees as provided for in the federal Act is not
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3 | engaged in the business of selling tangible personal property | ||||||
4 | at retail
with respect to such transactions.
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5 | "Purchaser" means anyone who, through a sale at retail, | ||||||
6 | acquires the
ownership of or title to tangible personal | ||||||
7 | property for a valuable
consideration.
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8 | "Reseller of motor fuel" means any person engaged in the | ||||||
9 | business of selling
or delivering or transferring title of | ||||||
10 | motor fuel to another person
other than for use or | ||||||
11 | consumption.
No person shall act as a reseller of motor fuel | ||||||
12 | within this State without
first being registered as a reseller | ||||||
13 | pursuant to Section 2c or a retailer
pursuant to Section 2a.
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14 | "Selling price" or the "amount of sale" means the | ||||||
15 | consideration for a
sale valued in money whether received in | ||||||
16 | money or otherwise, including
cash, credits, property, other | ||||||
17 | than as hereinafter provided, and services,
but, prior to | ||||||
18 | January 1, 2020 and beginning again on January 1, 2022, not | ||||||
19 | including the value of or credit given for traded-in tangible
| ||||||
20 | personal property where the item that is traded-in is of like | ||||||
21 | kind and
character as that which is being sold; beginning | ||||||
22 | January 1, 2020 and until January 1, 2022, "selling price" | ||||||
23 | includes the portion of the value of or credit given for | ||||||
24 | traded-in motor vehicles of the First Division as defined in | ||||||
25 | Section 1-146 of the Illinois Vehicle Code of like kind and | ||||||
26 | character as that which is being sold that exceeds $10,000. |
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1 | "Selling price" shall be determined without any
deduction on | ||||||
2 | account of the cost of the property sold, the cost of
materials | ||||||
3 | used, labor or service cost or any other expense whatsoever, | ||||||
4 | but
does not include charges that are added to prices by | ||||||
5 | sellers on account of
the seller's tax liability under this | ||||||
6 | Act, or on account of the seller's
duty to collect, from the | ||||||
7 | purchaser, the tax that is imposed by the Use Tax
Act, or, | ||||||
8 | except as otherwise provided with respect to any cigarette tax | ||||||
9 | imposed by a home rule unit, on account of the seller's tax | ||||||
10 | liability under any local occupation tax administered by the | ||||||
11 | Department, or, except as otherwise provided with respect to | ||||||
12 | any cigarette tax imposed by a home rule unit on account of the | ||||||
13 | seller's duty to collect, from the purchasers, the tax that is | ||||||
14 | imposed under any local use tax administered by the | ||||||
15 | Department.
Effective December 1, 1985, "selling price" shall | ||||||
16 | include charges that
are added to prices by sellers on account | ||||||
17 | of the seller's
tax liability under the Cigarette Tax Act, on | ||||||
18 | account of the sellers'
duty to collect, from the purchaser, | ||||||
19 | the tax imposed under the Cigarette
Use Tax Act, and on account | ||||||
20 | of the seller's duty to collect, from the
purchaser, any | ||||||
21 | cigarette tax imposed by a home rule unit.
| ||||||
22 | Notwithstanding any law to the contrary, for any motor | ||||||
23 | vehicle, as defined in Section 1-146 of the Vehicle Code, that | ||||||
24 | is sold on or after January 1, 2015 for the purpose of leasing | ||||||
25 | the vehicle for a defined period that is longer than one year | ||||||
26 | and (1) is a motor vehicle of the second division that: (A) is |
| |||||||
| |||||||
1 | a self-contained motor vehicle designed or permanently | ||||||
2 | converted to provide living quarters for recreational, | ||||||
3 | camping, or travel use, with direct walk through access to the | ||||||
4 | living quarters from the driver's seat; (B) is of the van | ||||||
5 | configuration designed for the transportation of not less than | ||||||
6 | 7 nor more than 16 passengers; or (C) has a gross vehicle | ||||||
7 | weight rating of 8,000 pounds or less or (2) is a motor vehicle | ||||||
8 | of the first division, "selling price" or "amount of sale" | ||||||
9 | means the consideration received by the lessor pursuant to the | ||||||
10 | lease contract, including amounts due at lease signing and all | ||||||
11 | monthly or other regular payments charged over the term of the | ||||||
12 | lease. Also included in the selling price is any amount | ||||||
13 | received by the lessor from the lessee for the leased vehicle | ||||||
14 | that is not calculated at the time the lease is executed, | ||||||
15 | including, but not limited to, excess mileage charges and | ||||||
16 | charges for excess wear and tear. For sales that occur in | ||||||
17 | Illinois, with respect to any amount received by the lessor | ||||||
18 | from the lessee for the leased vehicle that is not calculated | ||||||
19 | at the time the lease is executed, the lessor who purchased the | ||||||
20 | motor vehicle does not incur the tax imposed by the Use Tax Act | ||||||
21 | on those amounts, and the retailer who makes the retail sale of | ||||||
22 | the motor vehicle to the lessor is not required to collect the | ||||||
23 | tax imposed by the Use Tax Act or to pay the tax imposed by | ||||||
24 | this Act on those amounts. However, the lessor who purchased | ||||||
25 | the motor vehicle assumes the liability for reporting and | ||||||
26 | paying the tax on those amounts directly to the Department in |
| |||||||
| |||||||
1 | the same form (Illinois Retailers' Occupation Tax, and local | ||||||
2 | retailers' occupation taxes, if applicable) in which the | ||||||
3 | retailer would have reported and paid such tax if the retailer | ||||||
4 | had accounted for the tax to the Department. For amounts | ||||||
5 | received by the lessor from the lessee that are not calculated | ||||||
6 | at the time the lease is executed, the lessor must file the | ||||||
7 | return and pay the tax to the Department by the due date | ||||||
8 | otherwise required by this Act for returns other than | ||||||
9 | transaction returns. If the retailer is entitled under this | ||||||
10 | Act to a discount for collecting and remitting the tax imposed | ||||||
11 | under this Act to the Department with respect to the sale of | ||||||
12 | the motor vehicle to the lessor, then the right to the discount | ||||||
13 | provided in this Act shall be transferred to the lessor with | ||||||
14 | respect to the tax paid by the lessor for any amount received | ||||||
15 | by the lessor from the lessee for the leased vehicle that is | ||||||
16 | not calculated at the time the lease is executed; provided | ||||||
17 | that the discount is only allowed if the return is timely filed | ||||||
18 | and for amounts timely paid. The "selling price" of a motor | ||||||
19 | vehicle that is sold on or after January 1, 2015 for the | ||||||
20 | purpose of leasing for a defined period of longer than one year | ||||||
21 | shall not be reduced by the value of or credit given for | ||||||
22 | traded-in tangible personal property owned by the lessor, nor | ||||||
23 | shall it be reduced by the value of or credit given for | ||||||
24 | traded-in tangible personal property owned by the lessee, | ||||||
25 | regardless of whether the trade-in value thereof is assigned | ||||||
26 | by the lessee to the lessor. In the case of a motor vehicle |
| |||||||
| |||||||
1 | that is sold for the purpose of leasing for a defined period of | ||||||
2 | longer than one year, the sale occurs at the time of the | ||||||
3 | delivery of the vehicle, regardless of the due date of any | ||||||
4 | lease payments. A lessor who incurs a Retailers' Occupation | ||||||
5 | Tax liability on the sale of a motor vehicle coming off lease | ||||||
6 | may not take a credit against that liability for the Use Tax | ||||||
7 | the lessor paid upon the purchase of the motor vehicle (or for | ||||||
8 | any tax the lessor paid with respect to any amount received by | ||||||
9 | the lessor from the lessee for the leased vehicle that was not | ||||||
10 | calculated at the time the lease was executed) if the selling | ||||||
11 | price of the motor vehicle at the time of purchase was | ||||||
12 | calculated using the definition of "selling price" as defined | ||||||
13 | in this paragraph.
Notwithstanding any other provision of this | ||||||
14 | Act to the contrary, lessors shall file all returns and make | ||||||
15 | all payments required under this paragraph to the Department | ||||||
16 | by electronic means in the manner and form as required by the | ||||||
17 | Department. This paragraph does not apply to leases of motor | ||||||
18 | vehicles for which, at the time the lease is entered into, the | ||||||
19 | term of the lease is not a defined period, including leases | ||||||
20 | with a defined initial period with the option to continue the | ||||||
21 | lease on a month-to-month or other basis beyond the initial | ||||||
22 | defined period. | ||||||
23 | The phrase "like kind and character" shall be liberally | ||||||
24 | construed
(including but not limited to any form of motor | ||||||
25 | vehicle for any form of
motor vehicle, or any kind of farm or | ||||||
26 | agricultural implement for any other
kind of farm or |
| |||||||
| |||||||
1 | agricultural implement), while not including a kind of item
| ||||||
2 | which, if sold at retail by that retailer, would be exempt from | ||||||
3 | retailers'
occupation tax and use tax as an isolated or | ||||||
4 | occasional sale.
| ||||||
5 | "Gross receipts" from the sales of tangible personal | ||||||
6 | property at retail
means the total selling price or the amount | ||||||
7 | of such sales, as hereinbefore
defined. In the case of charge | ||||||
8 | and time sales, the amount thereof shall be
included only as | ||||||
9 | and when payments are received by the seller.
Receipts or | ||||||
10 | other consideration derived by a seller from
the sale, | ||||||
11 | transfer or assignment of accounts receivable to a wholly | ||||||
12 | owned
subsidiary will not be deemed payments prior to the time | ||||||
13 | the purchaser
makes payment on such accounts.
| ||||||
14 | "Department" means the Department of Revenue.
| ||||||
15 | "Person" means any natural individual, firm, partnership, | ||||||
16 | association,
joint stock company, joint adventure, public or | ||||||
17 | private corporation, limited
liability company, or a receiver, | ||||||
18 | executor, trustee, guardian or other
representative appointed | ||||||
19 | by order of any court.
| ||||||
20 | The isolated or occasional sale of tangible personal | ||||||
21 | property at retail
by a person who does not hold himself out as | ||||||
22 | being engaged (or who does not
habitually engage) in selling | ||||||
23 | such tangible personal property at retail, or
a sale through a | ||||||
24 | bulk vending machine, does not constitute engaging in a
| ||||||
25 | business of selling such tangible personal property at retail | ||||||
26 | within the
meaning of this Act; provided that any person who is |
| |||||||
| |||||||
1 | engaged in a business
which is not subject to the tax imposed | ||||||
2 | by this Act because of involving
the sale of or a contract to | ||||||
3 | sell real estate or a construction contract to
improve real | ||||||
4 | estate or a construction contract to engineer, install, and
| ||||||
5 | maintain an integrated system of products, but who, in the | ||||||
6 | course of
conducting such business,
transfers tangible | ||||||
7 | personal property to users or consumers in the finished
form | ||||||
8 | in which it was purchased, and which does not become real | ||||||
9 | estate or was
not engineered and installed, under any | ||||||
10 | provision of a construction contract or
real estate sale or | ||||||
11 | real estate sales agreement entered into with some other
| ||||||
12 | person arising out of or because of such nontaxable business, | ||||||
13 | is engaged in the
business of selling tangible personal | ||||||
14 | property at retail to the extent of the
value of the tangible | ||||||
15 | personal property so transferred. If, in such a
transaction, a | ||||||
16 | separate charge is made for the tangible personal property so
| ||||||
17 | transferred, the value of such property, for the purpose of | ||||||
18 | this Act, shall be
the amount so separately charged, but not | ||||||
19 | less than the cost of such property
to the transferor; if no | ||||||
20 | separate charge is made, the value of such property,
for the | ||||||
21 | purposes of this Act, is the cost to the transferor of such | ||||||
22 | tangible
personal property. Construction contracts for the | ||||||
23 | improvement of real estate
consisting of engineering, | ||||||
24 | installation, and maintenance of voice, data, video,
security, | ||||||
25 | and all telecommunication systems do not constitute engaging | ||||||
26 | in a
business of selling tangible personal property at retail |
| |||||||
| |||||||
1 | within the meaning of
this Act if they are sold at one | ||||||
2 | specified contract price.
| ||||||
3 | A person who holds himself or herself out as being engaged | ||||||
4 | (or who habitually
engages) in selling tangible personal | ||||||
5 | property at retail is a person
engaged in the business of | ||||||
6 | selling tangible personal property at retail
hereunder with | ||||||
7 | respect to such sales (and not primarily in a service
| ||||||
8 | occupation) notwithstanding the fact that such person designs | ||||||
9 | and produces
such tangible personal property on special order | ||||||
10 | for the purchaser and in
such a way as to render the property | ||||||
11 | of value only to such purchaser, if
such tangible personal | ||||||
12 | property so produced on special order serves
substantially the | ||||||
13 | same function as stock or standard items of tangible
personal | ||||||
14 | property that are sold at retail.
| ||||||
15 | Persons who engage in the business of transferring | ||||||
16 | tangible personal
property upon the redemption of trading | ||||||
17 | stamps are engaged in the business
of selling such property at | ||||||
18 | retail and shall be liable for and shall pay
the tax imposed by | ||||||
19 | this Act on the basis of the retail value of the
property | ||||||
20 | transferred upon redemption of such stamps.
| ||||||
21 | "Bulk vending machine" means a vending machine,
containing | ||||||
22 | unsorted confections, nuts, toys, or other items designed
| ||||||
23 | primarily to be used or played with by children
which, when a | ||||||
24 | coin or coins of a denomination not larger than $0.50 are
| ||||||
25 | inserted, are dispensed in equal portions, at random and
| ||||||
26 | without selection by the customer.
|
| |||||||
| |||||||
1 | "Remote retailer" means a retailer that does not maintain | ||||||
2 | within this State, directly or by a subsidiary, an office, | ||||||
3 | distribution house, sales house, warehouse or other place of | ||||||
4 | business, or any agent or other representative operating | ||||||
5 | within this State under the authority of the retailer or its | ||||||
6 | subsidiary, irrespective of whether such place of business or | ||||||
7 | agent is located here permanently or temporarily or whether | ||||||
8 | such retailer or subsidiary is licensed to do business in this | ||||||
9 | State. | ||||||
10 | "Marketplace" means a physical or electronic place, forum, | ||||||
11 | platform, application, or other method by which a marketplace | ||||||
12 | seller sells or offers to sell items. | ||||||
13 | "Marketplace facilitator" means a person who, pursuant to | ||||||
14 | an agreement with an unrelated third-party marketplace seller, | ||||||
15 | directly or indirectly through one or more affiliates | ||||||
16 | facilitates a retail sale by an unrelated third party | ||||||
17 | marketplace seller by: | ||||||
18 | (1) listing or advertising for sale by the marketplace | ||||||
19 | seller in a marketplace, tangible personal property that | ||||||
20 | is subject to tax under this Act; and | ||||||
21 | (2) either directly or indirectly, through agreements | ||||||
22 | or arrangements with third parties, collecting payment | ||||||
23 | from the customer and transmitting that payment to the | ||||||
24 | marketplace seller regardless of whether the marketplace | ||||||
25 | facilitator receives compensation or other consideration | ||||||
26 | in exchange for its services. |
| |||||||
| |||||||
1 | A person who provides advertising services, including | ||||||
2 | listing products for sale, is not considered a marketplace | ||||||
3 | facilitator, so long as the advertising service platform or | ||||||
4 | forum does not engage, directly or indirectly through one or | ||||||
5 | more affiliated persons, in the activities described in | ||||||
6 | paragraph (2) of this definition of "marketplace facilitator". | ||||||
7 | "Marketplace facilitator" does not include any person | ||||||
8 | licensed under the Auction License Act. This exemption does | ||||||
9 | not apply to any person who is an Internet auction listing | ||||||
10 | service, as defined by the Auction License Act. | ||||||
11 | "Marketplace facilitator" does not include a delivery | ||||||
12 | network company that delivers tangible personal property on | ||||||
13 | behalf of a marketplace seller that is engaged in business as a | ||||||
14 | retail vendor. | ||||||
15 | "Delivery network company" means a business that | ||||||
16 | facilitates, through the use of an Internet website or mobile | ||||||
17 | application, the delivery of local products. | ||||||
18 | "Local product" means any item, including food, other than | ||||||
19 | freight, mail, or a package to which
postage has been affixed. | ||||||
20 | "Marketplace seller" means a person that makes sales | ||||||
21 | through a marketplace operated by an unrelated third party | ||||||
22 | marketplace facilitator. | ||||||
23 | (Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20; | ||||||
24 | 102-353, eff. 1-1-22; 102-634, eff. 8-27-21; 102-813, eff. | ||||||
25 | 5-13-22.)
| ||||||
26 | Section 99. Effective date. This Act takes effect upon |
| |||||||
| |||||||
1 | becoming law.
|