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Department of Revenue finds problems with proposed service tax

Thursday, May 25, 2017

* From the Department of Revenue…

TO: Representative Jeanne M. Ives
FROM: Mark Dyckman General Counsel
Illinois Department of Revenue DATE: May 24, 2017
RE: Senate Bill 9 Constitutional Issues

This memorandum is in response to your request that the Department discuss constitutional issues associated with the tax provisions of Senate Bill 9. These issues are explained below.

1. Service tax provisions. The bill inserts 5 discrete services in the Retailers’ Occupation Tax Act (ROT) (storage; laundry and dry cleaning; private detective, private alarm, and private security service; structural pest control service; and tattooing and body piercing). These servicemen are taxed on 100% of the selling price and enjoy an exemption for sales to businesses making purchases of service for the benefit of the business (other than resale). All other servicemen in Illinois continue to be taxed under the Service Occupation Tax Act/Use Tax on only the tangible personal property transferred incident to service; they enjoy no business exemption.

It is the Department’s opinion that there is a substantial risk that the service tax components violate the uniformity clause of the Illinois Constitution (Art. IX, Sec. 2). In order to survive scrutiny under the uniformity clause, a non-property tax classification must (1) be based on real and substantial differences between those taxed and not taxed; and (2) must bear some reasonable relationship to the object of the legislation or to public policy. Illinois service tax classifications have previously been invalidated under the uniformity clause, notably in the case of Fiorito v. Jones, 39 Ill.2d 531, 236 N.E.2d 698 (1968). In that case, existing service taxes were replaced with a tax on only 4 itemized service categories. The Illinois Supreme Court could find no reasonable differences between servicemen who were taxed and those who were not taxed. Senate Bill 9 carries similar risks since it chooses only 5 categories of servicemen from the thousands of servicemen in Illinois and taxes them differently. A court may struggle to find the “real and substantial differences” that justify this differential treatment. Any service tax that simply picks and chooses services at random to be taxed or exempt from tax runs this substantial risk of being unconstitutional.

While not focused on in Fiorito, it is also possible for uniformity violations to be found within specific classifications made in a bill. For instance, the bill continues to tax retailers making sales of tangible personal property to other businesses for business purposes (e.g., a retailer selling security cameras to a business). However, the bill does not tax servicemen (now included in the ROT) when they make sales of service for business purposes (e.g., a serviceman selling alarm services to a business).

2. Entertainment Tax Fairness Act. The bill creates a new 1% tax on subscribers of entertainment (paid video programming through numerous methods including cable). It is our opinion that this tax could be challenged under the Federal Internet Tax Freedom Act (ITFA). ITFA, in part, prohibits states from imposing discriminatory taxes on electronic commerce. A discriminatory tax under ITFA is a tax that is not generally imposed and legally collectible by a State on transactions involving similar property, goods, services, or information accomplished through other [than electronic commerce] means. SB 9 imposes tax on subscribers renting movies on an internet or cable platform. However, when a subscriber rents the same movie from a video store, he or she incurs no tax liability. As a result, the bill appears to impose a discriminatory tax because it taxes transactions made through electronic commerce more harshly than those made through non-electronic commerce. The Illinois Supreme Court used a similar analysis to strike down Illinois’ first “Amazon law” related to click-through nexus for certain internet links in Performance Marketing v. Hamer, 2013 IL 11496 (2013). The General Assembly corrected that constitutional infirmity in subsequent legislation. It is the Department’s opinion that there is a substantial risk that these provisions violate ITFA.

3. Video Service Tax Modernization Act. SB 9 creates a new 5% tax on providers of direct-to-home satellite service, direct broadcast satellite service, and digital audio-visual work. The bill does not tax cable companies. It is very likely that this tax will be challenged by satellite service providers. Across the country, satellite companies have argued that such laws are discriminatory because they do not tax cable companies. While results have been mixed, challenges have been consistent. As noted in the discussion of Fiorito, above, such a challenge could be asserted under the State Constitution’s Uniformity Clause.

* Sun-Times

Senate Democrats noted Rauner had recommended service taxes.

“Yikes! How’d the governor take that news? Sales taxes on services have been part of his economic agenda going back to 2014,” said John Patterson, spokesman for Illinois Senate President John Cullerton. “I’m sure he can get this resolved with his Revenue Department.”

That’s true. Rauner proposed a service tax during the 2014 campaign. Unfortunately, the plan has since been deleted from his campaign website. But you can click here to see it.

The governor also touted expanding the sales tax base during his budget address back in February.

- Posted by Rich Miller        

34 Comments
  1. - SAP - Thursday, May 25, 17 @ 9:25 am:

    What took so long for IDOR to weigh in? (Or did the Superstars ignore earlier warnings?)


  2. - old pol - Thursday, May 25, 17 @ 9:28 am:

    Easy fix - levy a 1% service tax (or x%) on all services and get on with it.


  3. - Anonymous - Thursday, May 25, 17 @ 9:30 am:

    I don’t think he’s saying service taxes in general are unconstitutional, only that the way they are being applied, with exemptions for some, is.


  4. - Anonymous - Thursday, May 25, 17 @ 9:32 am:

    Any chance of turning the upside down page right side up?


  5. - A Jack - Thursday, May 25, 17 @ 9:33 am:

    That Ms. Ives and the unconstitutional taxes she is sponsoring. /snark


  6. - The Captain - Thursday, May 25, 17 @ 9:35 am:

    A very interesting read, thank you to the knowledgeable IDOR staffer who wrote it.


  7. - Liberal Elite - Thursday, May 25, 17 @ 9:36 am:

    Another untold story of Illinois’ revenue problem - the uniformity clause (and the way courts have interpreted it) is a serious barrier to completely reasonable taxes. Of course, we wouldn’t need to futz with all these different forms or consumption taxes if we just had a graduated income tax.


  8. - Ron - Thursday, May 25, 17 @ 9:40 am:

    Clearly the state constitution is a complete abomination that needs to be scrapped and rewritten.


  9. - Ron - Thursday, May 25, 17 @ 9:41 am:

    Public employee benefits should not be mentioned in a constitution.


  10. - justacitizen - Thursday, May 25, 17 @ 9:51 am:

    Echo 9:25a SAP’s thoughts. The service tax is often misunderstood anyway. Servicemen can satisfy their tax liability by paying tax on the cost of materials transferred in their service. Revenue should have reviewed the bill prior to any votes.

    Also agree that a lower (e.g., 1% across the board tax on all servicemen) makes much more sense than selective servicemen only.


  11. - Blooms of Spring - Thursday, May 25, 17 @ 9:54 am:

    @Ron How about getting rid of mentions of contract law too?


  12. - Lake Cruiser - Thursday, May 25, 17 @ 9:55 am:

    The 2011 Report on Service Tax predicted 4 billion in revenue. The proposed law is down to 55 million. I would guess that all the big service industries hired lobbyist and got exempted. Once 98.6% of the tax base escapes, the law does not accomplish anything.


  13. - Anotheretiree - Thursday, May 25, 17 @ 9:59 am:

    ==Ron
    Public employee benefits should not be mentioned in a constitution. ==
    If this post was abut the weather, Ron would find a way to link it to the constitutions non diminishment clause.


  14. - Honeybear - Thursday, May 25, 17 @ 10:05 am:

    I just really feel it’s not adding to this great blog to have to fight Ron nearly every day to justify my service and employment with the state. It’s in part because of people like Ron that moral is so low in public service and people are constantly leaving or retiring when they can. Every week almost for the past two months we have had fair well potlucks at lunch.
    I’m super tired of it. Rant/


  15. - RNUG - Thursday, May 25, 17 @ 10:13 am:

    == Clearly the state constitution is a complete abomination that needs to be scrapped and rewritten. ==

    Did you even read the part about #2 being in conflict with Federal law?


  16. - Flapdoodle - Thursday, May 25, 17 @ 10:15 am:

    Shout out to Honeybear for saying what needs to be said


  17. - former southerner - Thursday, May 25, 17 @ 10:16 am:

    Honeybear,

    The information in this blog is incredibly valuable but every time I use it I find myself wishing it was a forum where you can set the software to not display posts from specific users. Some posters are like having Rush Limbaugh pop up in the middle of an enjoyable set of tracks from The Who. But nothing in life is perfect however the quality of information from this blog is pretty close so we put up with the minor irritants.


  18. - Revolver - Thursday, May 25, 17 @ 10:17 am:

    Senate Democrats were given language from the Department that would have been constitutional, they chose to not take the Department’s advice.


  19. - RNUG - Thursday, May 25, 17 @ 10:18 am:

    == Public employee benefits should not be mentioned in a constitution. ==

    Had the State honored it’s commitments and not skimped on the pension funds for over 50 years, that clause would not have been included in the 1970 Constitution. That was the choice of the delegates to include it … and the public approved it.

    Quit whining about it. Try to change it if you want to, but it still won’t be retroactive. And due to contract law, it likely won’t make ant difference anyway.


  20. - Michelle Flaherty - Thursday, May 25, 17 @ 10:20 am:

    Revolver, the sales tax legislation was filed in January. Minor amendments to scale it back, but it’s been on file since January.


  21. - Oswego Willy - Thursday, May 25, 17 @ 10:20 am:

    - Honeybear -

    The merits of - Ron - ridiculousness are worth the time, as - RNUG - does, you do, and many others.

    The drive-by silliness, just let that go.

    How many times can you tell one person something isn’t constitutional, not possible, illegal in some cases, or politically impossible for anyone.

    The pitches in the dirt, let em go. The bat gets heavy and the arms tire with every drive-by. Let - Ron - yell at the clouds from the porch.

    To the Post,

    What’s great about Patterson, whom I think does his boss and Caucus a great service daily, is Patterson’s use of snark/comedy/irony but using it with precision to exacting policy and the politics within both. He’s really good at allowing a simple quote or statement speak to so many things, and do it so bitingly. I tip my hat, it’s just really good work.

    ===“Yikes! How’d the governor take that news? Sales taxes on services have been part of his economic agenda going back to 2014,” said John Patterson, spokesman for Illinois Senate President John Cullerton. “I’m sure he can get this resolved with his Revenue Department.”===

    Unpack all the zingers and where they all are on target, that’s how you counter the a “Word Jumble”


  22. - Ron - Thursday, May 25, 17 @ 10:22 am:

    Lots of public employee posters here. The private sector citizens of Illinois are fed up. Notice the state is losing population at one of the fastest rates in the union?

    Number one reason is taxes.


  23. - Rich Miller - Thursday, May 25, 17 @ 10:23 am:

    ===Notice the state is losing population at one of the fastest rates in the union? Number one reason is taxes. ===

    Same commenter, same timeframe, different post…

    ===Chicago’s population drop is due entirely to african americans fleeing high crime segregated areas and low opportunity in the region. ===


  24. - TradeMark - Thursday, May 25, 17 @ 10:33 am:

    ==Revolver, the sales tax legislation was filed in January. Minor amendments to scale it back, but it’s been on file since January.==

    That doesn’t necessarily rebut what Revolver said. Suggested language for bills are sent around prior to filing, and many suggested revisions are sent around after filing prior to votes being taken.


  25. - Just the Facts - Thursday, May 25, 17 @ 10:38 am:

    The IDOR analysis is spot on. My understanding is that they expressed these concerns early on, but were ignored.


  26. - Perrid - Thursday, May 25, 17 @ 10:42 am:

    Ron, did you bother reading the post about what the BGA says about pensions? Of the $108 Billion unfunded liability, $5.8B is from benefit increases, $44.6B is from the state not making payments, $14.7B from poor returns (Great Recession), and $31B from changes in projections. So increases in benefits is NOT the problem. It also said that the average payout from pensions is $35k ($17.3B/483,000 pensioners). So, you are screaming about a retiree getting $35,000 dollars a year, on average. The median would be less than that. Those are the numbers. That is the “Cadillac” pension you are angry about. Wake up dude.


  27. - Deadbeat Conservative - Thursday, May 25, 17 @ 10:53 am:

    Read the memo carefully: For example it attempts to poo-poo the Satellite TV tax by saying it will be challenged. It acknowledges challenges results “are mixed” when it comes to nullification.
    Satellite TV doesn’t pay cable service provider or franchise fees like cable. The tax would likely withstand a challenge.

    Hopefully the GA won’t back down whenever there is some type of possibly downside mentioned.


  28. - 36B - Thursday, May 25, 17 @ 11:49 am:

    When questioned regarding the service tax proposal he made during the 2014 campaign as well as his February budget address proposal to expand the sales tax base, Mr. Rauner explained “I’m not sure what you’re referring to. I’m not familiar with it.”


  29. - Honeybear - Thursday, May 25, 17 @ 11:54 am:

    I can no longer let it go though

    Look I’m a regular front line worker

    I’m not some thick skinned politician or political reporter

    The constant attacks on public servants, our pay , our pensions, our dignity hurt.

    I engage because to cede the field uncontested is to give up.
    As our AFSCME president says ” if you’re not at the table you’re on the menu”

    OW I know that you are able to swat things away like flies but I’ve noticed a sharp decrease (maybe it’s my imagination) in public sector folks on the blog.

    I think of folks like steward and others ( I know of course can’t remember their handles) who used to contribute all the time.

    I also feel an onus to stay engaged because of the support I received at the end of last year.

    But I’m so so tired of people like Ron
    Hellbent on taking away
    Hellbent on degrading others
    Hellbent on jealous rage

    But most of all I’m tired of the perfidy
    Intensional willfull purposeful perfidy
    Day in and day out
    Not taking responsibility
    Blaming others to avoid blame
    Committing perfidy to win

    At the cost of so much

    Rodogno could have pulled the curtain on the wizard
    The single Yes vote would have done so.

    Integrity sold

    My hope to avoid more senseless destruction is gone.
    It is cruel heartless political war
    While those I serve suffer

    Launch has happened
    I hate that there are those so base as to cheer it
    I am not without sin as I cheered many a time for a strike
    I was a fool
    But I am so tired of working with the victims of these battles in ESL and hearing the hooting glee and war cries on this blog.

    Have some humanity


  30. - walker - Thursday, May 25, 17 @ 1:58 pm:

    Honeybear: We know you are doing God’s Work for little monetary return, (pardon me if that phrase doesn’t work for you). It is frustrating to continually read judgmental comments from people who are ignorant of your, and many others’ reality. Such people, who apparently are also misled in terms of how things work, and favor false narratives, are more to be pitied than taken seriously. We can only hope they take a slow walk toward the real world beyond their assumptions.

    Please, if you become disheartened, let it be for good reason, and not for any commenter on this blog.

    From a taxpayer, (like us all) and a private sector member.


  31. - Ron - Thursday, May 25, 17 @ 2:08 pm:

    “Of the $108 Billion unfunded liability, $5.8B is from benefit increases, $44.6B is from the state not making payments, $14.7B from poor returns (Great Recession), and $31B from changes in projections.”

    Thanks for making my point. Pensions don’t work.


  32. - I'm only here to confuse you - Thursday, May 25, 17 @ 4:41 pm:

    Ron- just because you don’t work the kind of job that pays a pension doesn’t mean they don’t work for all of us….it’s just you buddy.


  33. - Demoralized - Thursday, May 25, 17 @ 4:46 pm:

    ==Pensions don’t work.==

    Nothing does if you simply refuse to pay for it, which is what the state did.

    You really need a new hobby besides pension envy.


  34. - Whatever - Thursday, May 25, 17 @ 9:55 pm:

    ==Thanks for making my point. Pensions don’t work.==

    They worked ok in the private sector, where they had to be fully funded by law, until employers discovered that when higher-than-expected returns on investment caused their pensions to be overfunded, they could shut them down and skim the overfunding for themselves.


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