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| Public Act 103-0983
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| SB3362 Enrolled | LRB103 34186 HLH 66294 b |
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AN ACT concerning revenue.
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Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
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Section 5. The Retailers' Occupation Tax Act is amended by |
changing Sections 1, 2, and 2-12 as follows:
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(35 ILCS 120/1) (from Ch. 120, par. 440) |
Sec. 1. Definitions. "Sale at retail" means any transfer |
of the ownership of or title to tangible personal property to a |
purchaser, for the purpose of use or consumption, and not for |
the purpose of resale in any form as tangible personal |
property to the extent not first subjected to a use for which |
it was purchased, for a valuable consideration: Provided that |
the property purchased is deemed to be purchased for the |
purpose of resale, despite first being used, to the extent to |
which it is resold as an ingredient of an intentionally |
produced product or byproduct of manufacturing. For this |
purpose, slag produced as an incident to manufacturing pig |
iron or steel and sold is considered to be an intentionally |
produced byproduct of manufacturing. Transactions whereby the |
possession of the property is transferred but the seller |
retains the title as security for payment of the selling price |
shall be deemed to be sales. |
"Sale at retail" shall be construed to include any |
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transfer of the ownership of or title to tangible personal |
property to a purchaser, for use or consumption by any other |
person to whom such purchaser may transfer the tangible |
personal property without a valuable consideration, and to |
include any transfer, whether made for or without a valuable |
consideration, for resale in any form as tangible personal |
property unless made in compliance with Section 2c of this |
Act. |
Sales of tangible personal property, which property, to |
the extent not first subjected to a use for which it was |
purchased, as an ingredient or constituent, goes into and |
forms a part of tangible personal property subsequently the |
subject of a "Sale at retail", are not sales at retail as |
defined in this Act: Provided that the property purchased is |
deemed to be purchased for the purpose of resale, despite |
first being used, to the extent to which it is resold as an |
ingredient of an intentionally produced product or byproduct |
of manufacturing. |
"Sale at retail" shall be construed to include any |
Illinois florist's sales transaction in which the purchase |
order is received in Illinois by a florist and the sale is for |
use or consumption, but the Illinois florist has a florist in |
another state deliver the property to the purchaser or the |
purchaser's donee in such other state. |
Nonreusable tangible personal property that is used by |
persons engaged in the business of operating a restaurant, |
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cafeteria, or drive-in is a sale for resale when it is |
transferred to customers in the ordinary course of business as |
part of the sale of food or beverages and is used to deliver, |
package, or consume food or beverages, regardless of where |
consumption of the food or beverages occurs. Examples of those |
items include, but are not limited to nonreusable, paper and |
plastic cups, plates, baskets, boxes, sleeves, buckets or |
other containers, utensils, straws, placemats, napkins, doggie |
bags, and wrapping or packaging materials that are transferred |
to customers as part of the sale of food or beverages in the |
ordinary course of business. |
The purchase, employment and transfer of such tangible |
personal property as newsprint and ink for the primary purpose |
of conveying news (with or without other information) is not a |
purchase, use or sale of tangible personal property. |
A person whose activities are organized and conducted |
primarily as a not-for-profit service enterprise, and who |
engages in selling tangible personal property at retail |
(whether to the public or merely to members and their guests) |
is engaged in the business of selling tangible personal |
property at retail with respect to such transactions, |
excepting only a person organized and operated exclusively for |
charitable, religious or educational purposes either (1), to |
the extent of sales by such person to its members, students, |
patients or inmates of tangible personal property to be used |
primarily for the purposes of such person, or (2), to the |
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extent of sales by such person of tangible personal property |
which is not sold or offered for sale by persons organized for |
profit. The selling of school books and school supplies by |
schools at retail to students is not "primarily for the |
purposes of" the school which does such selling. The |
provisions of this paragraph shall not apply to nor subject to |
taxation occasional dinners, socials or similar activities of |
a person organized and operated exclusively for charitable, |
religious or educational purposes, whether or not such |
activities are open to the public. |
A person who is the recipient of a grant or contract under |
Title VII of the Older Americans Act of 1965 (P.L. 92-258) and |
serves meals to participants in the federal Nutrition Program |
for the Elderly in return for contributions established in |
amount by the individual participant pursuant to a schedule of |
suggested fees as provided for in the federal Act is not |
engaged in the business of selling tangible personal property |
at retail with respect to such transactions. |
"Purchaser" means anyone who, through a sale at retail, |
acquires the ownership of or title to tangible personal |
property for a valuable consideration. |
"Reseller of motor fuel" means any person engaged in the |
business of selling or delivering or transferring title of |
motor fuel to another person other than for use or |
consumption. No person shall act as a reseller of motor fuel |
within this State without first being registered as a reseller |
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pursuant to Section 2c or a retailer pursuant to Section 2a. |
"Selling price" or the "amount of sale" means the |
consideration for a sale valued in money whether received in |
money or otherwise, including cash, credits, property, other |
than as hereinafter provided, and services, but, prior to |
January 1, 2020 and beginning again on January 1, 2022, not |
including the value of or credit given for traded-in tangible |
personal property where the item that is traded-in is of like |
kind and character as that which is being sold; beginning |
January 1, 2020 and until January 1, 2022, "selling price" |
includes the portion of the value of or credit given for |
traded-in motor vehicles of the First Division as defined in |
Section 1-146 of the Illinois Vehicle Code of like kind and |
character as that which is being sold that exceeds $10,000. |
"Selling price" shall be determined without any deduction on |
account of the cost of the property sold, the cost of materials |
used, labor or service cost or any other expense whatsoever, |
but does not include charges that are added to prices by |
sellers on account of the seller's tax liability under this |
Act, or on account of the seller's duty to collect, from the |
purchaser, the tax that is imposed by the Use Tax Act, or, |
except as otherwise provided with respect to any cigarette tax |
imposed by a home rule unit, on account of the seller's tax |
liability under any local occupation tax administered by the |
Department, or, except as otherwise provided with respect to |
any cigarette tax imposed by a home rule unit on account of the |
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seller's duty to collect, from the purchasers, the tax that is |
imposed under any local use tax administered by the |
Department. Effective December 1, 1985, "selling price" shall |
include charges that are added to prices by sellers on account |
of the seller's tax liability under the Cigarette Tax Act, on |
account of the sellers' duty to collect, from the purchaser, |
the tax imposed under the Cigarette Use Tax Act, and on account |
of the seller's duty to collect, from the purchaser, any |
cigarette tax imposed by a home rule unit. |
Notwithstanding any law to the contrary, for any motor |
vehicle, as defined in Section 1-146 of the Vehicle Code, that |
is sold on or after January 1, 2015 for the purpose of leasing |
the vehicle for a defined period that is longer than one year |
and (1) is a motor vehicle of the second division that: (A) is |
a self-contained motor vehicle designed or permanently |
converted to provide living quarters for recreational, |
camping, or travel use, with direct walk through access to the |
living quarters from the driver's seat; (B) is of the van |
configuration designed for the transportation of not less than |
7 nor more than 16 passengers; or (C) has a gross vehicle |
weight rating of 8,000 pounds or less or (2) is a motor vehicle |
of the first division, "selling price" or "amount of sale" |
means the consideration received by the lessor pursuant to the |
lease contract, including amounts due at lease signing and all |
monthly or other regular payments charged over the term of the |
lease. Also included in the selling price is any amount |
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received by the lessor from the lessee for the leased vehicle |
that is not calculated at the time the lease is executed, |
including, but not limited to, excess mileage charges and |
charges for excess wear and tear. For sales that occur in |
Illinois, with respect to any amount received by the lessor |
from the lessee for the leased vehicle that is not calculated |
at the time the lease is executed, the lessor who purchased the |
motor vehicle does not incur the tax imposed by the Use Tax Act |
on those amounts, and the retailer who makes the retail sale of |
the motor vehicle to the lessor is not required to collect the |
tax imposed by the Use Tax Act or to pay the tax imposed by |
this Act on those amounts. However, the lessor who purchased |
the motor vehicle assumes the liability for reporting and |
paying the tax on those amounts directly to the Department in |
the same form (Illinois Retailers' Occupation Tax, and local |
retailers' occupation taxes, if applicable) in which the |
retailer would have reported and paid such tax if the retailer |
had accounted for the tax to the Department. For amounts |
received by the lessor from the lessee that are not calculated |
at the time the lease is executed, the lessor must file the |
return and pay the tax to the Department by the due date |
otherwise required by this Act for returns other than |
transaction returns. If the retailer is entitled under this |
Act to a discount for collecting and remitting the tax imposed |
under this Act to the Department with respect to the sale of |
the motor vehicle to the lessor, then the right to the discount |
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provided in this Act shall be transferred to the lessor with |
respect to the tax paid by the lessor for any amount received |
by the lessor from the lessee for the leased vehicle that is |
not calculated at the time the lease is executed; provided |
that the discount is only allowed if the return is timely filed |
and for amounts timely paid. The "selling price" of a motor |
vehicle that is sold on or after January 1, 2015 for the |
purpose of leasing for a defined period of longer than one year |
shall not be reduced by the value of or credit given for |
traded-in tangible personal property owned by the lessor, nor |
shall it be reduced by the value of or credit given for |
traded-in tangible personal property owned by the lessee, |
regardless of whether the trade-in value thereof is assigned |
by the lessee to the lessor. In the case of a motor vehicle |
that is sold for the purpose of leasing for a defined period of |
longer than one year, the sale occurs at the time of the |
delivery of the vehicle, regardless of the due date of any |
lease payments. A lessor who incurs a Retailers' Occupation |
Tax liability on the sale of a motor vehicle coming off lease |
may not take a credit against that liability for the Use Tax |
the lessor paid upon the purchase of the motor vehicle (or for |
any tax the lessor paid with respect to any amount received by |
the lessor from the lessee for the leased vehicle that was not |
calculated at the time the lease was executed) if the selling |
price of the motor vehicle at the time of purchase was |
calculated using the definition of "selling price" as defined |
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in this paragraph. Notwithstanding any other provision of this |
Act to the contrary, lessors shall file all returns and make |
all payments required under this paragraph to the Department |
by electronic means in the manner and form as required by the |
Department. This paragraph does not apply to leases of motor |
vehicles for which, at the time the lease is entered into, the |
term of the lease is not a defined period, including leases |
with a defined initial period with the option to continue the |
lease on a month-to-month or other basis beyond the initial |
defined period. |
The phrase "like kind and character" shall be liberally |
construed (including but not limited to any form of motor |
vehicle for any form of motor vehicle, or any kind of farm or |
agricultural implement for any other kind of farm or |
agricultural implement), while not including a kind of item |
which, if sold at retail by that retailer, would be exempt from |
retailers' occupation tax and use tax as an isolated or |
occasional sale. |
"Gross receipts" from the sales of tangible personal |
property at retail means the total selling price or the amount |
of such sales, as hereinbefore defined. In the case of charge |
and time sales, the amount thereof shall be included only as |
and when payments are received by the seller. Receipts or |
other consideration derived by a seller from the sale, |
transfer or assignment of accounts receivable to a wholly |
owned subsidiary will not be deemed payments prior to the time |
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the purchaser makes payment on such accounts. |
"Department" means the Department of Revenue. |
"Person" means any natural individual, firm, partnership, |
association, joint stock company, joint adventure, public or |
private corporation, limited liability company, or a receiver, |
executor, trustee, guardian or other representative appointed |
by order of any court. |
The isolated or occasional sale of tangible personal |
property at retail by a person who does not hold himself out as |
being engaged (or who does not habitually engage) in selling |
such tangible personal property at retail, or a sale through a |
bulk vending machine, does not constitute engaging in a |
business of selling such tangible personal property at retail |
within the meaning of this Act; provided that any person who is |
engaged in a business which is not subject to the tax imposed |
by this Act because of involving the sale of or a contract to |
sell real estate or a construction contract to improve real |
estate or a construction contract to engineer, install, and |
maintain an integrated system of products, but who, in the |
course of conducting such business, transfers tangible |
personal property to users or consumers in the finished form |
in which it was purchased, and which does not become real |
estate or was not engineered and installed, under any |
provision of a construction contract or real estate sale or |
real estate sales agreement entered into with some other |
person arising out of or because of such nontaxable business, |
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is engaged in the business of selling tangible personal |
property at retail to the extent of the value of the tangible |
personal property so transferred. If, in such a transaction, a |
separate charge is made for the tangible personal property so |
transferred, the value of such property, for the purpose of |
this Act, shall be the amount so separately charged, but not |
less than the cost of such property to the transferor; if no |
separate charge is made, the value of such property, for the |
purposes of this Act, is the cost to the transferor of such |
tangible personal property. Construction contracts for the |
improvement of real estate consisting of engineering, |
installation, and maintenance of voice, data, video, security, |
and all telecommunication systems do not constitute engaging |
in a business of selling tangible personal property at retail |
within the meaning of this Act if they are sold at one |
specified contract price. |
A person who holds himself or herself out as being engaged |
(or who habitually engages) in selling tangible personal |
property at retail is a person engaged in the business of |
selling tangible personal property at retail hereunder with |
respect to such sales (and not primarily in a service |
occupation) notwithstanding the fact that such person designs |
and produces such tangible personal property on special order |
for the purchaser and in such a way as to render the property |
of value only to such purchaser, if such tangible personal |
property so produced on special order serves substantially the |
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same function as stock or standard items of tangible personal |
property that are sold at retail. |
Persons who engage in the business of transferring |
tangible personal property upon the redemption of trading |
stamps are engaged in the business of selling such property at |
retail and shall be liable for and shall pay the tax imposed by |
this Act on the basis of the retail value of the property |
transferred upon redemption of such stamps. |
"Bulk vending machine" means a vending machine, containing |
unsorted confections, nuts, toys, or other items designed |
primarily to be used or played with by children which, when a |
coin or coins of a denomination not larger than $0.50 are |
inserted, are dispensed in equal portions, at random and |
without selection by the customer. |
"Remote retailer" means a retailer that does not maintain |
within this State, directly or by a subsidiary, an office, |
distribution house, sales house, warehouse or other place of |
business, or any agent or other representative operating |
within this State under the authority of the retailer or its |
subsidiary, irrespective of whether such place of business or |
agent is located here permanently or temporarily or whether |
such retailer or subsidiary is licensed to do business in this |
State. |
"Retailer maintaining a place of business in this State" |
has the meaning given to that term in Section 2 of the Use Tax |
Act. |
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"Marketplace" means a physical or electronic place, forum, |
platform, application, or other method by which a marketplace |
seller sells or offers to sell items. |
"Marketplace facilitator" means a person who, pursuant to |
an agreement with an unrelated third-party marketplace seller, |
directly or indirectly through one or more affiliates |
facilitates a retail sale by an unrelated third party |
marketplace seller by: |
(1) listing or advertising for sale by the marketplace |
seller in a marketplace, tangible personal property that |
is subject to tax under this Act; and |
(2) either directly or indirectly, through agreements |
or arrangements with third parties, collecting payment |
from the customer and transmitting that payment to the |
marketplace seller regardless of whether the marketplace |
facilitator receives compensation or other consideration |
in exchange for its services. |
A person who provides advertising services, including |
listing products for sale, is not considered a marketplace |
facilitator, so long as the advertising service platform or |
forum does not engage, directly or indirectly through one or |
more affiliated persons, in the activities described in |
paragraph (2) of this definition of "marketplace facilitator". |
"Marketplace facilitator" does not include any person |
licensed under the Auction License Act. This exemption does |
not apply to any person who is an Internet auction listing |
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service, as defined by the Auction License Act. |
"Marketplace seller" means a person that makes sales |
through a marketplace operated by an unrelated third party |
marketplace facilitator. |
(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20; |
102-353, eff. 1-1-22; 102-634, eff. 8-27-21; 102-813, eff. |
5-13-22.)
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(35 ILCS 120/2) (from Ch. 120, par. 441) |
Sec. 2. Tax imposed. |
(a) A tax is imposed upon persons engaged in the business |
of selling at retail tangible personal property, including |
computer software, and including photographs, negatives, and |
positives that are the product of photoprocessing, but not |
including products of photoprocessing produced for use in |
motion pictures for public commercial exhibition. Beginning |
January 1, 2001, prepaid telephone calling arrangements shall |
be considered tangible personal property subject to the tax |
imposed under this Act regardless of the form in which those |
arrangements may be embodied, transmitted, or fixed by any |
method now known or hereafter developed. Sales of (1) |
electricity delivered to customers by wire; (2) natural or |
artificial gas that is delivered to customers through pipes, |
pipelines, or mains; and (3) water that is delivered to |
customers through pipes, pipelines, or mains are not subject |
to tax under this Act. The provisions of this amendatory Act of |
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the 98th General Assembly are declaratory of existing law as |
to the meaning and scope of this Act. |
(b) Beginning on January 1, 2021, a remote retailer is |
engaged in the occupation of selling at retail in Illinois for |
purposes of this Act, if: |
(1) the cumulative gross receipts from sales of |
tangible personal property to purchasers in Illinois are |
$100,000 or more; or |
(2) the retailer enters into 200 or more separate |
transactions for the sale of tangible personal property to |
purchasers in Illinois. |
Remote retailers that meet or exceed the threshold in |
either paragraph (1) or (2) above shall be liable for all |
applicable State retailers' and locally imposed retailers' |
occupation taxes administered by the Department on all retail |
sales to Illinois purchasers. |
The remote retailer shall determine on a quarterly basis, |
ending on the last day of March, June, September, and |
December, whether he or she meets the criteria of either |
paragraph (1) or (2) of this subsection for the preceding |
12-month period. If the retailer meets the criteria of either |
paragraph (1) or (2) for a 12-month period, he or she is |
considered a retailer maintaining a place of business in this |
State and is required to collect and remit the tax imposed |
under this Act and all retailers' occupation tax imposed by |
local taxing jurisdictions in Illinois, provided such local |
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taxes are administered by the Department, and to file all |
applicable returns for one year. At the end of that one-year |
period, the retailer shall determine whether the retailer met |
the criteria of either paragraph (1) or (2) for the preceding |
12-month period. If the retailer met the criteria in either |
paragraph (1) or (2) for the preceding 12-month period, he or |
she is considered a retailer maintaining a place of business |
in this State and is required to collect and remit all |
applicable State and local retailers' occupation taxes and |
file returns for the subsequent year. If, at the end of a |
one-year period, a retailer that was required to collect and |
remit the tax imposed under this Act determines that he or she |
did not meet the criteria in either paragraph (1) or (2) during |
the preceding 12-month period, then the retailer shall |
subsequently determine on a quarterly basis, ending on the |
last day of March, June, September, and December, whether he |
or she meets the criteria of either paragraph (1) or (2) for |
the preceding 12-month period. |
(b-2) Beginning on January 1, 2025, a retailer maintaining |
a place of business in this State that makes retail sales of |
tangible personal property to Illinois customers from a |
location or locations outside of Illinois is engaged in the |
occupation of selling at retail in Illinois for the purposes |
of this Act. Those retailers are liable for all applicable |
State and locally imposed retailers' occupation taxes |
administered by the Department on retail sales made by those |
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retailers to Illinois customers from locations outside of |
Illinois. |
(b-5) For the purposes of this Section, neither the gross |
receipts from nor the number of separate transactions for |
sales of tangible personal property to purchasers in Illinois |
that a remote retailer makes through a marketplace facilitator |
shall be included for the purposes of determining whether he |
or she has met the thresholds of subsection (b) of this Section |
so long as the remote retailer has received certification from |
the marketplace facilitator that the marketplace facilitator |
is legally responsible for payment of tax on such sales. |
(b-10) A remote retailer that is required to collect taxes |
imposed under the Use Tax Act on retail sales made to Illinois |
purchasers or a retailer maintaining a place of business in |
this State that is required to collect taxes imposed under the |
Use Tax Act on retail sales made to Illinois purchasers shall |
be liable to the Department for such taxes, except when the |
remote retailer or retailer maintaining a place of business in |
this State is relieved of the duty to remit such taxes by |
virtue of having paid to the Department taxes imposed by this |
Act in accordance with this Section upon his or her gross |
receipts from such sales. |
(c) Marketplace facilitators engaged in the business of |
selling at retail tangible personal property in Illinois. |
Beginning January 1, 2021, a marketplace facilitator is |
engaged in the occupation of selling at retail tangible |
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personal property in Illinois for purposes of this Act if, |
during the previous 12-month period: |
(1) the cumulative gross receipts from sales of |
tangible personal property on its own behalf or on behalf |
of marketplace sellers to purchasers in Illinois equals |
$100,000 or more; or |
(2) the marketplace facilitator enters into 200 or |
more separate transactions on its own behalf or on behalf |
of marketplace sellers for the sale of tangible personal |
property to purchasers in Illinois, regardless of whether |
the marketplace facilitator or marketplace sellers for |
whom such sales are facilitated are registered as |
retailers in this State. |
A marketplace facilitator who meets either paragraph (1) |
or (2) of this subsection is required to remit the applicable |
State retailers' occupation taxes under this Act and local |
retailers' occupation taxes administered by the Department on |
all taxable sales of tangible personal property made by the |
marketplace facilitator or facilitated for marketplace sellers |
to customers in this State. A marketplace facilitator selling |
or facilitating the sale of tangible personal property to |
customers in this State is subject to all applicable |
procedures and requirements of this Act. |
The marketplace facilitator shall determine on a quarterly |
basis, ending on the last day of March, June, September, and |
December, whether he or she meets the criteria of either |
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paragraph (1) or (2) of this subsection for the preceding |
12-month period. If the marketplace facilitator meets the |
criteria of either paragraph (1) or (2) for a 12-month period, |
he or she is considered a retailer maintaining a place of |
business in this State and is required to remit the tax imposed |
under this Act and all retailers' occupation tax imposed by |
local taxing jurisdictions in Illinois, provided such local |
taxes are administered by the Department, and to file all |
applicable returns for one year. At the end of that one-year |
period, the marketplace facilitator shall determine whether it |
met the criteria of either paragraph (1) or (2) for the |
preceding 12-month period. If the marketplace facilitator met |
the criteria in either paragraph (1) or (2) for the preceding |
12-month period, it is considered a retailer maintaining a |
place of business in this State and is required to collect and |
remit all applicable State and local retailers' occupation |
taxes and file returns for the subsequent year. If at the end |
of a one-year period a marketplace facilitator that was |
required to collect and remit the tax imposed under this Act |
determines that he or she did not meet the criteria in either |
paragraph (1) or (2) during the preceding 12-month period, the |
marketplace facilitator shall subsequently determine on a |
quarterly basis, ending on the last day of March, June, |
September, and December, whether he or she meets the criteria |
of either paragraph (1) or (2) for the preceding 12-month |
period. |
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A marketplace facilitator shall be entitled to any |
credits, deductions, or adjustments to the sales price |
otherwise provided to the marketplace seller, in addition to |
any such adjustments provided directly to the marketplace |
facilitator. This Section pertains to, but is not limited to, |
adjustments such as discounts, coupons, and rebates. In |
addition, a marketplace facilitator shall be entitled to the |
retailers' discount provided in Section 3 of the Retailers' |
Occupation Tax Act on all marketplace sales, and the |
marketplace seller shall not include sales made through a |
marketplace facilitator when computing any retailers' discount |
on remaining sales. Marketplace facilitators shall report and |
remit the applicable State and local retailers' occupation |
taxes on sales facilitated for marketplace sellers separately |
from any sales or use tax collected on taxable retail sales |
made directly by the marketplace facilitator or its |
affiliates. |
The marketplace facilitator is liable for the remittance |
of all applicable State retailers' occupation taxes under this |
Act and local retailers' occupation taxes administered by the |
Department on sales through the marketplace and is subject to |
audit on all such sales. The Department shall not audit |
marketplace sellers for their marketplace sales where a |
marketplace facilitator remitted the applicable State and |
local retailers' occupation taxes unless the marketplace |
facilitator seeks relief as a result of incorrect information |
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provided to the marketplace facilitator by a marketplace |
seller as set forth in this Section. The marketplace |
facilitator shall not be held liable for tax on any sales made |
by a marketplace seller that take place outside of the |
marketplace and which are not a part of any agreement between a |
marketplace facilitator and a marketplace seller. In addition, |
marketplace facilitators shall not be held liable to State and |
local governments of Illinois for having charged and remitted |
an incorrect amount of State and local retailers' occupation |
tax if, at the time of the sale, the tax is computed based on |
erroneous data provided by the State in database files on tax |
rates, boundaries, or taxing jurisdictions or incorrect |
information provided to the marketplace facilitator by the |
marketplace seller. |
(d) A marketplace facilitator shall: |
(1) certify to each marketplace seller that the |
marketplace facilitator assumes the rights and duties of a |
retailer under this Act with respect to sales made by the |
marketplace seller through the marketplace; and |
(2) remit taxes imposed by this Act as required by |
this Act for sales made through the marketplace. |
(e) A marketplace seller shall retain books and records |
for all sales made through a marketplace in accordance with |
the requirements of this Act. |
(f) A marketplace facilitator is subject to audit on all |
marketplace sales for which it is considered to be the |
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retailer, but shall not be liable for tax or subject to audit |
on sales made by marketplace sellers outside of the |
marketplace. |
(g) A marketplace facilitator required to collect taxes |
imposed under the Use Tax Act on marketplace sales made to |
Illinois purchasers shall be liable to the Department for such |
taxes, except when the marketplace facilitator is relieved of |
the duty to remit such taxes by virtue of having paid to the |
Department taxes imposed by this Act in accordance with this |
Section upon his or her gross receipts from such sales. |
(h) Nothing in this Section shall allow the Department to |
collect retailers' occupation taxes from both the marketplace |
facilitator and marketplace seller on the same transaction. |
(i) If, for any reason, the Department is prohibited from |
enforcing the marketplace facilitator's duty under this Act to |
remit taxes pursuant to this Section, the duty to remit such |
taxes remains with the marketplace seller. |
(j) Nothing in this Section affects the obligation of any |
consumer to remit use tax for any taxable transaction for |
which a certified service provider acting on behalf of a |
remote retailer or a marketplace facilitator does not collect |
and remit the appropriate tax. |
(k) Nothing in this Section shall allow the Department to |
collect the retailers' occupation tax from both the |
marketplace facilitator and the marketplace seller. |
(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.)
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(35 ILCS 120/2-12) |
Sec. 2-12. Location where retailer is deemed to be engaged |
in the business of selling. The purpose of this Section is to |
specify where a retailer is deemed to be engaged in the |
business of selling tangible personal property for the |
purposes of this Act, the Use Tax Act, the Service Use Tax Act, |
and the Service Occupation Tax Act, and for the purpose of |
collecting any other local retailers' occupation tax |
administered by the Department. This Section applies only with |
respect to the particular selling activities described in the |
following paragraphs. The provisions of this Section are not |
intended to, and shall not be interpreted to, affect where a |
retailer is deemed to be engaged in the business of selling |
with respect to any activity that is not specifically |
described in the following paragraphs. |
(1) If a purchaser who is present at the retailer's |
place of business, having no prior commitment to the |
retailer, agrees to purchase and makes payment for |
tangible personal property at the retailer's place of |
business, then the transaction shall be deemed an |
over-the-counter sale occurring at the retailer's same |
place of business where the purchaser was present and made |
payment for that tangible personal property if the |
retailer regularly stocks the purchased tangible personal |
property or similar tangible personal property in the |
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quantity, or similar quantity, for sale at the retailer's |
same place of business and then either (i) the purchaser |
takes possession of the tangible personal property at the |
same place of business or (ii) the retailer delivers or |
arranges for the tangible personal property to be |
delivered to the purchaser. |
(2) If a purchaser, having no prior commitment to the |
retailer, agrees to purchase tangible personal property |
and makes payment over the phone, in writing, or via the |
Internet and takes possession of the tangible personal |
property at the retailer's place of business, then the |
sale shall be deemed to have occurred at the retailer's |
place of business where the purchaser takes possession of |
the property if the retailer regularly stocks the item or |
similar items in the quantity, or similar quantities, |
purchased by the purchaser. |
(3) A retailer is deemed to be engaged in the business |
of selling food, beverages, or other tangible personal |
property through a vending machine at the location where |
the vending machine is located at the time the sale is made |
if (i) the vending machine is a device operated by coin, |
currency, credit card, token, coupon or similar device; |
(2) the food, beverage or other tangible personal property |
is contained within the vending machine and dispensed from |
the vending machine; and (3) the purchaser takes |
possession of the purchased food, beverage or other |
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tangible personal property immediately. |
(4) Minerals. A producer of coal or other mineral |
mined in Illinois is deemed to be engaged in the business |
of selling at the place where the coal or other mineral |
mined in Illinois is extracted from the earth. With |
respect to minerals (i) the term "extracted from the |
earth" means the location at which the coal or other |
mineral is extracted from the mouth of the mine, and (ii) a |
"mineral" includes not only coal, but also oil, sand, |
stone taken from a quarry, gravel and any other thing |
commonly regarded as a mineral and extracted from the |
earth. This paragraph does not apply to coal or another |
mineral when it is delivered or shipped by the seller to |
the purchaser at a point outside Illinois so that the sale |
is exempt under the United States Constitution as a sale |
in interstate or foreign commerce. |
(5) A retailer selling tangible personal property to a |
nominal lessee or bailee pursuant to a lease with a dollar |
or other nominal option to purchase is engaged in the |
business of selling at the location where the property is |
first delivered to the lessee or bailee for its intended |
use. |
(6) Beginning on January 1, 2021, a remote retailer |
making retail sales of tangible personal property that |
meet or exceed the thresholds established in paragraph (1) |
or (2) of subsection (b) of Section 2 of this Act is |
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engaged in the business of selling at the Illinois |
location to which the tangible personal property is |
shipped or delivered or at which possession is taken by |
the purchaser. |
(7) Beginning January 1, 2021, a marketplace |
facilitator facilitating sales of tangible personal |
property that meet or exceed one of the thresholds |
established in paragraph (1) or (2) of subsection (c) of |
Section 2 of this Act is deemed to be engaged in the |
business of selling at the Illinois location to which the |
tangible personal property is shipped or delivered or at |
which possession is taken by the purchaser when the sale |
is made by a marketplace seller on the marketplace |
facilitator's marketplace. |
(8) Beginning on January 1, 2025, for sales that would |
otherwise be sourced outside of this State, a retailer |
maintaining a place of business in this State that makes |
retail sales of tangible personal property to Illinois |
customers from a location or locations outside of Illinois |
is engaged in the business of selling at the Illinois |
location to which the tangible personal property is |
shipped or delivered or at which possession is taken by |
the purchaser. |
(Source: P.A. 101-31, eff. 6-28-19; 101-604, eff. 1-1-20.)
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