35 ILCS 120/12 — Illinois Code / Chapter 35 / Act 120 / Section 12
Section 12
Status: in_force

(35 ILCS 120/12) (from Ch. 120, par. 451) Sec. 12. The Department is authorized to make, promulgate and enforce such reasonable rules and regulations relating to the administration and enforcement of the provisions of this Act as may be deemed expedient. Whenever notice is required by this Act, such notice may be given by United States registered or certified mail, addressed to the person concerned at his last known address, and proof of such mailing shall be sufficient for the purposes of this Act. Notice of any hearing provided for by this Act shall be so given not less than 7 days prior to the day fixed for the hearing. Following the initial contact of a person represented by an attorney, the Department shall not contact the person concerned but shall only contact the attorney representing the person concerned. All hearings provided for in this Act with respect to or concerning a taxpayer having his or her principal place of business in this State other than in Cook County shall be held at the Department's office nearest to the location of the taxpayer's principal place of business: Provided that if the taxpayer has his or her principal place of business in Cook County, such hearing shall be held in Cook County; and provided, further, that if the taxpayer does not have his or her principal place of business in this State, such hearing shall be held in Sangamon County. The Circuit Court of the County wherein the taxpayer has his or her principal place of business, or of Sangamon County in those cases where the taxpayer does not have his or her principal place of business in this State, shall have power to review all final administrative decisions of the Department in administering the provisions of this Act: Provided that if the administrative proceeding which is to be reviewed judicially is a claim for refund proceeding commenced in accordance with Section 6 of this Act and Section 2a of "An Act in relation to the payment and disposition of moneys received by officers and employees of the State of Illinois by virtue of their office or employment", approved June 9, 1911, as amended, the Circuit Court having jurisdiction of the action for judicial review under this Section and under the Administrative Review Law, as amended, shall be the same court that entered the temporary restraining order or preliminary injunction which is provided for in Section 2a of "An Act in relation to the payment and disposition of moneys received by officers and employees of the State of Illinois by virtue of their office or employment", and which enables such claim proceeding to be processed and disposed of as a claim for refund proceeding rather than as a claim for credit proceeding. The provisions of the Administrative Review Law, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Department hereunder, except with respect to protests and hearings held before the Illinois Independent Tax Tribunal. The provisions of the Illinois Independent Tax Tribunal Act of 2012, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of administrative decisions of the Department that are subject to the jurisdiction of the Illinois Independent Tax Tribunal. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure. Except with respect to decisions that are subject to the jurisdiction of the Illinois Independent Tax Tribunal, any person filing an action under the Administrative Review Law to review a final assessment or revised final assessment issued by the Department under this Act shall, within 20 days after filing the complaint, file a bond with good and sufficient surety or sureties residing in this State or licensed to do business in this State or, instead of the bond, obtain an order from the court imposing a lien upon the plaintiff's property as hereinafter provided. If the person filing the complaint fails to comply with this bonding requirement within 20 days after filing the complaint, the Department shall file a motion to dismiss and the court shall dismiss the action unless the person filing the action complies with the bonding requirement set out in this provision within 30 days after the filing of the Department's motion to dismiss. Upon dismissal of any complaint for failure to comply with the jurisdictional prerequisites herein set forth, the court is empowered to and shall enter judgment against the taxpayer and in favor of the Department in the amount of the final assessment or revised final assessment, together with any interest which may have accrued since the Department issued the final assessment or revised final assessment, and for costs, which judgment is enforceable as other judgments for the payment of money. The lien provided for in this Section shall not be applicable to the real property of a corporate surety duly licensed to do business in this State. The amount of such bond shall be fixed and approved by the court, but shall not be less than the amount of the tax and penalty claimed to be due by the Department in its final assessment or revised final assessment to the person filing such bond, plus the amount of interest due from such person to the Department at the time when the Department issued its final assessment to such person. Such bond shall be executed to the Department of Revenue and shall be conditioned on the taxpayer's payment within 30 days after termination of the proceedings for judicial review of the amount of tax and penalty and interest found by the court to be due in such proceedings for judicial review. Such bond, when filed and approved, shall, from such time until 2 years after termination of the proceedings for judicial review in which the bond is filed, be a lien against the real estate situated in the county in which the bond is filed, of the person filing such bond, and of the surety or sureties on such bond, until the condition of the bond has been complied with or until the bond has been canceled as hereinafter provided. If the person filing any such bond fails to keep the condition thereof, such bond shall thereupon be forfeited, and the Department may institute an action upon such bond in its own name for the entire amount of the bond and costs. Such action upon the bond shall be in addition to any other remedy provided for herein. If the person filing such bond complies with the condition thereof, or if, in the proceedings for judicial review in which such bond is filed, the court determines that no amount of tax or penalty or interest is due, such bond shall be canceled. If the court finds in a particular case that the plaintiff cannot procure and furnish a satisfactory surety or sureties for the kind of bond required herein, the court may relieve the plaintiff of the obligation of filing such bond, if, upon the timely application for a lien in lieu thereof and accompanying proof therein submitted, the court is satisfied that any such lien imposed would operate to secure the assessment in the manner and to the degree as would a bond. Upon a finding that such lien applied for would secure the assessment at issue, the court shall enter an order, in lieu of such bond, subjecting the plaintiff's real and personal property (including subsequently acquired property), situated in the county in which such order is entered, to a lien in favor of the Department. Such lien shall be for the amount of the tax and penalty claimed to be due by the Department in its final assessment or revised final assessment, plus the amount of interest due from such person to the Department at the time when the Department issued its final assessment to such person, and shall continue in full force and effect until the termination of the proceedings for judicial review, or until the plaintiff pays, to the Department, the tax and penalty and interest to secure which the lien is given, whichever happens first. In the exercise of its discretion, the court may impose a lien regardless of the ratio of the taxpayer's assets to the final assessment or revised final assessment plus the amount of the interest and penalty. Nothing in this Section shall be construed to give the Department a preference over the rights of any bona fide purchaser, mortgagee, judgment creditor or other lien holder arising prior to the entry of the order creating such lien in favor of the Department: Provided, however, that the word "bona fide", as used in this Section, shall not include any mortgage of real or personal property or any other credit transaction that results in the mortgagee or the holder of the security acting as trustee for unsecured creditors of the taxpayer mentioned in the order for lien who executed such chattel or real property mortgage or the document evidencing such credit transaction. Such lien shall be inferior to the lien of general taxes, special assessments and special taxes heretofore or hereafter levied by any political subdivision of this State. Such lien shall not be effective against any purchaser with respect to any item in a retailer's stock in trade purchased from the retailer in the usual course of such retailer's business, and such lien shall not be enforced against the household effects, wearing apparel, or the books, tools or implements of a trade or profession kept for use by any person. Such lien shall not be effective against real property whose title is registered under the provisions of "An Act concerning land titles", approved May 1, 1897, as amended, until the provisions of Section 85 of that Act are complied with. Service upon the Director of Revenue or the Assistant Director of Revenue of the Department of Revenue of summons issued in an action to review a final administrative decision of the Department shall be service upon the Department. The Department shall certify the record of its proceedings if the taxpayer pays to it the sum of 75¢ per page of testimony taken before the Department and 25¢ per page of all other matters contained in such record, except that these charges may be waived where the Department is satisfied that the aggrieved party is a poor person who cannot afford to pay such charges. If payment for such record is not made by the taxpayer within 30 days after notice from the Department or the Attorney General of the cost thereof, the court in which the proceeding is pending, on motion of the Department, shall dismiss the complaint and (where the administrative decision as to which the action for judicial review was filed is a final assessment or revised final assessment) shall enter judgment against the taxpayer and in favor of the Department for the amount of tax and penalty shown by the Department's final assessment or revised final assessment to be due, plus interest as provided for in Section 5 of this Act from the date when the liability upon which such interest accrued became delinquent until the entry of the judgment in the action for judicial review under the Administrative Review Law, and also for costs. Whenever any proceeding provided by this Act is begun before the Department, either by the Department or by a person subject to this Act, and such person thereafter dies or becomes a person under legal disability before such proceeding is concluded, the legal representative of the deceased or person under legal disability shall notify the Department of such death or legal disability. Such legal representative, as such, shall then be substituted by the Department for such person. If the legal representative fails to notify the Department of his or her appointment as such legal representative, the Department may, upon its own motion, substitute such legal representative in the proceeding pending before the Department for the person who died or became a person under legal disability. The changes made by this amendatory Act of 1995 apply to all actions pending on and after the effective date of this amendatory Act of 1995 to review a final assessment or revised final assessment issued by the Department. (Source: P.A. 97-1129, eff. 8-28-12; 98-463, eff. 8-16-13.)