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HB1438: ARTICLE 65. CANNABIS PURCHASER EXCISE TAX (Illinois Cannabis Regulation & Tax Act)

ARTICLE 65. CANNABIS PURCHASER EXCISE TAX

Section 65-1. Short title.

This Article may be referred to as the Cannabis Purchaser Excise Tax Law.

Section 65-5. Definitions.

In this Article:

“Adjusted delta-9-tetrahydrocannabinol level” means, for a delta-9-tetrahydrocannabinol dominant product, the sum of the percentage of delta-9-tetrahydrocannabinol plus .877 multiplied by the percentage of tetrahydrocannabinolic acid.

“Cannabis” has the meaning given to that term in Article 1 of this Act, except that it does not include cannabis that is subject to tax under the Compassionate Use of Medical Cannabis Pilot Program Act.

“Cannabis-infused product” means beverage food, oils, ointments, tincture, topical formulation, or another product containing cannabis that is not intended to be smoked.

“Cannabis retailer” means a dispensing organization that sells cannabis for use and not for resale.

“Craft grower” has the meaning given to that term in Article 1 of this Act.

“Department” means the Department of Revenue.

“Director” means the Director of Revenue.

“Dispensing organization” or “dispensary” has the meaning given to that term in Article 1 of this Act.

“Person” means a 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.

“Infuser organization” or “infuser” means a facility operated by an organization or business that is licensed by the Department of Agriculture to directly incorporate cannabis or cannabis concentrate into a product formulation to produce a cannabis-infused product.

“Purchase price” means the consideration paid for a purchase of cannabis, valued in money, whether received in money or otherwise, including cash, gift cards, credits, and property and shall be determined without any deduction on account of the cost of materials used, labor or service costs, or any other expense whatsoever. However, “purchase price” does not include consideration paid for:

  • (1) any charge for a payment that is not honored by a financial institution;
  • (2) any finance or credit charge, penalty or charge for delayed payment, or discount for prompt payment; and
  • (3) any amounts added to a purchaser’s bill because of charges made under the tax imposed by this Article, the Municipal Cannabis Retailers’ Occupation Tax Law, the County Cannabis Retailers’ Occupation Tax Law, the Retailers’ Occupation Tax Act, the Use Tax Act, the Service Occupation Tax Act, the Service Use Tax Act, or any locally imposed occupation or use tax.

“Purchaser” means a person who acquires cannabis for a valuable consideration.

“Taxpayer” means a cannabis retailer who is required to collect the tax imposed under this Article.

Section 65-10. Tax imposed.

(a) Beginning January 1, 2020, a tax is imposed upon purchasers for the privilege of using cannabis at the following rates:

  • (1) Any cannabis, other than a cannabis-infused product, with an adjusted delta-9-tetrahydrocannabinol level at or below 35% shall be taxed at a rate of 10% of the purchase price;
  • (2) Any cannabis, other than a cannabis-infused product, with an adjusted delta-9-tetrahydrocannabinol level above 35% shall be taxed at a rate of 25% of the purchase price; and
  • (3) A cannabis-infused product shall be taxed at a rate of 20% of the purchase price.

(b) The purchase of any product that contains any amount of cannabis or any derivative thereof is subject to the tax under subsection (a) of this Section on the full purchase price of the product.

(c) The tax imposed under this Section is not imposed on cannabis that is subject to tax under the Compassionate Use of Medical Cannabis Pilot Program Act. The tax imposed by this Section is not imposed with respect to any transaction in interstate commerce, to the extent the transaction may not, under the Constitution and statutes of the United States, be made the subject of taxation by this State.

(d) The tax imposed under this Article shall be in addition to all other occupation, privilege, or excise taxes imposed by the State of Illinois or by any municipal corporation or political subdivision thereof.

(e) The tax imposed under this Article shall not be imposed on any purchase by a purchaser if the cannabis retailer is prohibited by federal or State Constitution, treaty, convention, statute, or court decision from collecting the tax from the purchaser.

Section 65-11. Bundling of taxable and nontaxable items; prohibition; taxation.

If a cannabis retailer sells cannabis, concentrate, or cannabis-infused products in combination or bundled with items that are not subject to tax under this Act for one price in violation of the prohibition on this activity under Section 15-70, then the tax under this Act is imposed on the purchase price of the entire bundled product.

Section 65-15. Collection of tax.

(a) The tax imposed by this Article shall be collected from the purchaser by the cannabis retailer at the rate stated in Section 65-10 with respect to cannabis sold by the cannabis retailer to the purchaser, and shall be remitted to the Department as provided in Section 65-30. All sales to a purchaser who is not a cardholder under the Compassionate Use of Medical Cannabis Pilot Program Act are presumed subject to tax collection. Cannabis retailers shall collect the tax from purchasers by adding the tax to the amount of the purchase price received from the purchaser for selling cannabis to the purchaser. The tax imposed by this Article shall, when collected, be stated as a distinct item separate and apart from the purchase price of the cannabis.

(b) If a cannabis retailer collects Cannabis Purchaser Excise Tax measured by a purchase price that is not subject to Cannabis Purchaser Excise Tax, or if a cannabis retailer, in collecting Cannabis Purchaser Excise Tax measured by a purchase price that is subject to tax under this Act, collects more from the purchaser than the required amount of the Cannabis Purchaser Excise Tax on the transaction, the purchaser shall have a legal right to claim a refund of that amount from the cannabis retailer. If, however, that amount is not refunded to the purchaser for any reason, the cannabis retailer is liable to pay that amount to the Department.

(c) Any person purchasing cannabis subject to tax under this Article as to which there has been no charge made to him or her of the tax imposed by Section 65-10 shall make payment of the tax imposed by Section 65-10 in the form and manner provided by the Department not later than the 20th day of the month following the month of purchase of the cannabis.

Section 65-20. Registration of cannabis retailers.

Every cannabis retailer required to collect the tax under this Article shall apply to the Department for a certificate of registration under this Article. All applications for registration under this Article shall be made by electronic means in the form and manner required by the Department. For that purpose, the provisions of Section 2a of the Retailers’ Occupation Tax Act are incorporated into this Article to the extent not inconsistent with this Article. In addition, no certificate of registration shall be issued under this Article unless the applicant is licensed under this Act.

Section 65-25. Tax collected as debt owed to State.

Any cannabis retailer required to collect the tax imposed by this Article shall be liable to the Department for the tax, whether or not the tax has been collected by the cannabis retailer, and any such tax shall constitute a debt owed by the cannabis retailer to this State. To the extent that a cannabis retailer required to collect the tax imposed by this Act has actually collected that tax, the tax is held in trust for the benefit of the Department.

Section 65-30. Return and payment of tax by cannabis retailer.

Each cannabis retailer that is required or authorized to collect the tax imposed by this Article shall make a return to the Department, by electronic means, on or before the 20th day of each month for the preceding calendar month stating the following:

  • (1) the cannabis retailer’s name;
  • (2) the address of the cannabis retailer’s principal place of business and the address of the principal place of business (if that is a different address) from which the cannabis retailer engaged in the business of selling cannabis subject to tax under this Article;
  • (3) the total purchase price received by the cannabis retailer for cannabis subject to tax under this Article;
  • (4) the amount of tax due at each rate;
  • (5) the signature of the cannabis retailer; and
  • (6) any other information as the Department may reasonably require.

All returns required to be filed and payments required to be made under this Article shall be by electronic means. Cannabis retailers who demonstrate hardship in paying electronically may petition the Department to waive the electronic payment requirement.

Any amount that is required to be shown or reported on any return or other document under this Article shall, if the amount is not a whole-dollar amount, be increased to the nearest whole-dollar amount if the fractional part of a dollar is $0.50 or more and decreased to the nearest whole-dollar amount if the fractional part of a dollar is less than $0.50. If a total amount of less than $1 is payable, refundable, or creditable, the amount shall be disregarded if it is less than $0.50 and shall be increased to $1 if it is $0.50 or more.

The cannabis retailer making the return provided for in this Section shall also pay to the Department, in accordance with this Section, the amount of tax imposed by this Article, less a discount of 1.75%, but not to exceed $1,000 per return period, which is allowed to reimburse the cannabis retailer for the expenses incurred in keeping records, collecting tax, preparing and filing returns, remitting the tax, and supplying data to the Department upon request. No discount may be claimed by a cannabis retailer on returns not timely filed and for taxes not timely remitted. No discount may be claimed by a taxpayer for any return that is not filed electronically. No discount may be claimed by a taxpayer for any payment that is not made electronically, unless a waiver has been granted under this Section.

Notwithstanding any other provision of this Article concerning the time within which a cannabis retailer may file a return, any such cannabis retailer who ceases to engage in the kind of business that makes the person responsible for filing returns under this Article shall file a final return under this Article with the Department within one month after discontinuing the business.

Each cannabis retailer shall make estimated payments to the Department on or before the 7th, 15th, 22nd, and last day of the month during which tax liability to the Department is incurred. The payments shall be in an amount not less than the lower of either 22.5% of the cannabis retailer’s actual tax liability for the month or 25% of the cannabis retailer’s actual tax liability for the same calendar month of the preceding year. The amount of the quarter-monthly payments shall be credited against the final tax liability of the cannabis retailer’s return for that month. If any such quarter-monthly payment is not paid at the time or in the amount required by this Section, then the cannabis retailer shall be liable for penalties and interest on the difference between the minimum amount due as a payment and the amount of the quarter-monthly payment actually and timely paid, except insofar as the cannabis retailer has previously made payments for that month to the Department in excess of the minimum payments previously due as provided in this Section.

If any payment provided for in this Section exceeds the taxpayer’s liabilities under this Article, as shown on an original monthly return, the Department shall, if requested by the taxpayer, issue to the taxpayer a credit memorandum no later than 30 days after the date of payment. The credit evidenced by the credit memorandum may be assigned by the taxpayer to a similar taxpayer under this Article, in accordance with reasonable rules to be prescribed by the Department. If no such request is made, the taxpayer may credit the excess payment against tax liability subsequently to be remitted to the Department under this Article, in accordance with reasonable rules prescribed by the Department. If the Department subsequently determines that all or any part of the credit taken was not actually due to the taxpayer, the taxpayer’s discount shall be reduced, if necessary, to reflect the difference between the credit taken and that actually due, and that taxpayer shall be liable for penalties and interest on the difference. If a cannabis retailer fails to sign a return within 30 days after the proper notice and demand for signature by the Department is received by the cannabis retailer, the return shall be considered valid and any amount shown to be due on the return shall be deemed assessed.

Section 65-35. Deposit of proceeds.

All moneys received by the Department under this Article shall be paid into the Cannabis Regulation Fund.

Section 65-36. Recordkeeping; books and records.

(a) Every retailer of cannabis, whether or not the retailer has obtained a certificate of registration under Section 65-20, shall keep complete and accurate records of cannabis held, purchased, sold, or otherwise disposed of, and shall preserve and keep all invoices, bills of lading, sales records, and copies of bills of sale, returns, and other pertinent papers and documents relating to the purchase, sale, or disposition of cannabis. Such records need not be maintained on the licensed premises but must be maintained in the State of Illinois. However, all original invoices or copies thereof covering purchases of cannabis must be retained on the licensed premises for a period of 90 days after such purchase, unless the Department has granted a waiver in response to a written request in cases where records are kept at a central business location within the State of Illinois. The Department shall adopt rules regarding the eligibility for a waiver, revocation of a waiver, and requirements and standards for maintenance and accessibility of records located at a central location under a waiver provided under this Section.

(b) Books, records, papers, and documents that are required by this Article 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.

Section 65-38. Violations and penalties.

(a) When the amount due is under $300, any retailer of cannabis who fails to file a return, willfully fails or refuses to make any payment to the Department of the tax imposed by this Article, or files a fraudulent return, or any officer or agent of a corporation engaged in the business of selling cannabis to purchasers 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 Article is guilty of a Class 4 felony.

(b) When the amount due is $300 or more, any retailer of cannabis who files, or causes to be filed, a fraudulent return, or any officer or agent of a corporation engaged in the business of selling cannabis to purchasers 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 Article is guilty of a Class 3 felony.

(c) Any person who violates any provision of Section 65-20, fails to keep books and records as required under this Article, or willfully violates a rule of the Department for the administration and enforcement of this Article 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 65-20 or a rule of the Department for the administration and enforcement of this Article. If a person fails to produce the books and records for inspection by the Department upon request, a prima facie presumption shall arise that the person has failed to keep books and records as required under this Article. A person who is unable to rebut this presumption is in violation of this Article and is subject to the penalties provided in this Section.

(d) Any person who violates any provision of Sections 65-20, fails to keep books and records as required under this Article, or willfully violates a rule of the Department for the administration and enforcement of this Article, is guilty of a business offense and may be fined up to $5,000. If a person fails to produce books and records for inspection by the Department upon request, a prima facie presumption shall arise that the person has failed to keep books and records as required under this Article. A person who is unable to rebut this presumption is in violation of this Article and is subject to the penalties provided in this Section. A person commits a separate offense on each day that he or she engages in business in violation of Section 65-20.

(e) 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 2012.

(f) Any person who fails to keep books and records or fails to produce books and records for inspection, as required by Section 65-36, is liable to pay to the Department, for deposit in the Tax Compliance and Administration Fund, a penalty of $1,000 for the first failure to keep books and records or failure to produce books and records for inspection, as required by Section 65-36, and $3,000 for each subsequent failure to keep books and records or failure to produce books and records for inspection, as required by Section 65-36.

(g) Any person who knowingly acts as a retailer of cannabis in this State without first having obtained a certificate of registration to do so in compliance with Section 65-20 of this Article shall be guilty of a Class 4 felony.

(h) A person commits the offense of tax evasion under this Article when he or she knowingly attempts in any manner to evade or defeat the tax imposed on him or her or on any other person, or the payment thereof, and he or she commits an affirmative act in furtherance of the evasion. As used in this Section, “affirmative act in furtherance of the evasion” means an act designed in whole or in part to (i) conceal, misrepresent, falsify, or manipulate any material fact or (ii) tamper with or destroy documents or materials related to a person’s tax liability under this Article. Two or more acts of sales tax evasion may be charged as a single count in any indictment, information, or complaint and the amount of tax deficiency may be aggregated for purposes of determining the amount of tax that is attempted to be or is evaded and the period between the first and last acts may be alleged as the date of the offense.

  • (1) When the amount of tax, the assessment or payment of which is attempted to be or is evaded is less than $500, a person is guilty of a Class 4 felony.
  • (2) When the amount of tax, the assessment or payment of which is attempted to be or is evaded is $500 or more but less than $10,000, a person is guilty of a Class 3 felony.
  • (3) When the amount of tax, the assessment or payment of which is attempted to be or is evaded is $10,000 or more but less than $100,000, a person is guilty of a Class 2 felony.
  • (4) When the amount of tax, the assessment or payment of which is attempted to be or is evaded is $100,000 or more, a person is guilty of a Class 1 felony.

Any person who knowingly sells, purchases, installs, transfers, possesses, uses, or accesses any automated sales suppression device, zapper, or phantom-ware in this State is guilty of a Class 3 felony.

As used in this Section:

“Automated sales suppression device” or “zapper” means a software program that falsifies the electronic records of an electronic cash register or other point-of-sale system, including, but not limited to, transaction data and transaction reports. The term includes the software program, any device that carries the software program, or an Internet link to the software program.

“Phantom-ware” means a hidden programming option embedded in the operating system of an electronic cash register or hardwired into an electronic cash register that can be used to create a second set of records or that can eliminate or manipulate transaction records in an electronic cash register.

“Electronic cash register” means a device that keeps a register or supporting documents through the use of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data in any manner.

“Transaction data” includes: items purchased by a purchaser; the price of each item; a taxability determination for each item; a segregated tax amount for each taxed item; the amount of cash or credit tendered; the net amount returned to the customer in change; the date and time of the purchase; the name, address, and identification number of the vendor; and the receipt or invoice number of the transaction.

“Transaction report” means a report that documents, without limitation, the sales, taxes, or fees collected, media totals, and discount voids at an electronic cash register and that is printed on a cash register tape at the end of a day or shift, or a report that documents every action at an electronic cash register and is stored electronically.

A prosecution for any act in violation of this Section may be commenced at any time within 5 years of the commission of that act.

(i) The Department may adopt rules to administer the penalties under this Section.

(j) 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.

(k) Except as otherwise provided in subsection (h), a prosecution for a violation described in this Section may be commenced within 3 years after the commission of the act constituting the violation.

Section 65-40. Department administration and enforcement.

The Department shall have full power to administer and enforce this Article, to collect all taxes and penalties due hereunder, to dispose of taxes and penalties so collected in the manner hereinafter provided, and to determine all rights to credit memoranda, arising on account of the erroneous payment of tax or penalty hereunder.

In the administration of, and compliance with, this Article, the Department and persons who are subject to this Article shall have the same rights, remedies, privileges, immunities, powers, and duties, and be subject to the same conditions, restrictions, limitations, penalties, and definitions of terms, and employ the same modes of procedure, as are prescribed in Sections 2, 3-55, 3a, 4, 5, 7, 10a, 11, 12a, 12b, 14, 15, 19, 20, 21, and 22 of the Use Tax Act and Sections 1, 2-12, 2b, 4 (except that the time limitation provisions shall run from the date when the tax is due rather than from the date when gross receipts are received), 5 (except that the time limitation provisions on the issuance of notices of tax liability shall run from the date when the tax is due rather than from the date when gross receipts are received and except that in the case of a failure to file a return required by this Act, no notice of tax liability shall be issued on and after each July 1 and January 1 covering tax due with that return during any month or period more than 6 years before that July 1 or January 1, respectively), 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5h, 5j, 6d, 7, 8, 9, 10, 11, and 12 of the Retailers’ Occupation Tax Act and all of the provisions of the Uniform Penalty and Interest Act, which are not inconsistent with this Article, as fully as if those provisions were set forth herein. References in the incorporated Sections of the Retailers’ Occupation Tax Act and the Use Tax Act to retailers, to sellers, or to persons engaged in the business of selling tangible personal property mean cannabis retailers when used in this Article. References in the incorporated Sections to sales of tangible personal property mean sales of cannabis subject to tax under this Article when used in this Article.

Section 65-41. 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 Article; (ii) may without a search warrant inspect all cannabis located in any place of business; (iii) may seize any cannabis in the possession of the retailer in violation of this Act; and (iv) may seize any cannabis on which the tax imposed by Article 60 of this Act has not been paid. The cannabis so seized is subject to confiscation and forfeiture as provided in Sections 65-42 and 65-43.

Section 65-42. Seizure and forfeiture.

After seizing any cannabis as provided in Section 65-41, the Department must hold a hearing and determine whether the retailer was properly registered to sell the cannabis at the time of its 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 cannabis, if the owner is known, and also to the person in whose possession the cannabis was found, if that person is known and if the person in possession is not the owner of the cannabis. If neither the owner nor the person in possession of the cannabis 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 retailer was not properly registered at the time the cannabis was seized, the Department must enter an order declaring the cannabis confiscated and forfeited to the State, to be held by the Department for disposal by it as provided in Section 65-43. The Department must give notice of the order to the owner of the cannabis, if the owner is known, and also to the person in whose possession the cannabis was found, if that person is known and if the person in possession is not the owner of the cannabis. If neither the owner nor the person in possession of the cannabis 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.

Section 65-43. Search warrant; issuance and return; process; confiscation of cannabis; forfeitures.

(a) 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 Article or a rule of the Department for the administration and enforcement of this Article has occurred and that the person violating this Article or rule has in that person’s possession any cannabis in violation of this Article or a rule of the Department for the administration and enforcement of this Article, 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 the property so seized was held or possessed in violation of this Article or a rule of the Department for the administration and enforcement of this Article. 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.

(b) When any cannabis has been declared forfeited to the State by the Department, as provided in Section 65-42 and this Section, and when all proceedings for the judicial review of the Department’s decision have terminated, the Department shall, to the extent that its decision is sustained on review, destroy or maintain and use such cannabis in an undercover capacity.

(c) The Department may, before any destruction of cannabis, permit the true holder of trademark rights in the cannabis to inspect such cannabis in order to assist the Department in any investigation regarding such cannabis.

Section 65-45. Cannabis retailers; purchase and possession of cannabis.

Cannabis retailers shall purchase cannabis for resale only from cannabis business establishments as authorized by this Act.

Section 65-50. Rulemaking.

The Department may adopt rules in accordance with the Illinois Administrative Procedure Act and prescribe forms relating to the administration and enforcement of this Article as it deems appropria