Ok folks below is the new Retirement law in Illinois. Quinn said the law goes into effect June 1 of this year, which is when appointments will be made to the seven-member Illinois Secure Choice Savings Board tasked with choosing a private firm to manage the funds. ByJune 1, 2017, all businesses in operation for at least two years and that have at least 25 employees without a work-based savings plan such as a pension or 401(k) can decide to work with private entities but they can also join the newly created Illinois Secure Choice Savings Program, which comes with a default 3 percent payroll deduction.
Public Act 098-1150
Section 1. Short title. This Act may be cited as the
Illinois Secure Choice Savings Program Act.
Section 5. Definitions. Unless the context requires a
different meaning or as expressly provided in this Section, all
terms shall have the same meaning as when used in a comparable
context in the Internal Revenue Code. As used in this Act:
"Board" means the Illinois Secure Choice Savings Board
established under this Act.
"Department" means the Department of Revenue.
"Director" means the Director of Revenue.
"Employee" means any individual who is 18 years of age or
older, who is employed by an employer, and who has wages that
are allocable to Illinois during a calendar year under the
provisions of Section 304(a)(2)(B) of the Illinois Income Tax
Act.
"Employer" means a person or entity engaged in a business,
industry, profession, trade, or other enterprise in Illinois,
whether for profit or not for profit, that (i) has at no time
during the previous calendar year employed fewer than 25
employees in the State, (ii) has been in business at least 2
years, and (iii) has not offered a qualified retirement plan,
including, but not limited to, a plan qualified under Section
401(a), Section 401(k), Section 403(a), Section 403(b),
Section 408(k), Section 408(p), or Section 457(b) of the
Internal Revenue Code of 1986 in the preceding 2 years.
"Enrollee" means any employee who is enrolled in the
Program.
"Fund" means the Illinois Secure Choice Savings Program
Fund.
"Internal Revenue Code" means Internal Revenue Code of
1986, or any successor law, in effect for the calendar year.
"IRA" means a Roth IRA (individual retirement account)
under Section 408A of the Internal Revenue Code.
"Participating employer" means an employer or small
employer that provides a payroll deposit retirement savings
arrangement as provided for by this Act for its employees who
are enrollees in the Program.
"Payroll deposit retirement savings arrangement" means an
arrangement by which a participating employer allows enrollees
to remit payroll deduction contributions to the Program.
"Program" means the Illinois Secure Choice Savings
Program.
"Small employer" means a person or entity engaged in a
business, industry, profession, trade, or other enterprise in
Illinois, whether for profit or not for profit, that (i)
employed less than 25 employees at any one time in the State
throughout the previous calendar year, or (ii) has been in
business less than 2 years, or both items (i) and (ii), but
that notifies the Department that it is interested in being a
participating employer.
"Wages" means any compensation within the meaning of
Section 219(f)(1) of the Internal Revenue Code that is received
by an enrollee from a participating employer during the
calendar year.
Section 10. Establishment of Illinois Secure Choice
Savings Program. A retirement savings program in the form of an
automatic enrollment payroll deduction IRA, known as the
Illinois Secure Choice Savings Program, is hereby established
and shall be administered by the Board for the purpose of
promoting greater retirement savings for private-sector
employees in a convenient, low-cost, and portable manner.
Section 15. Illinois Secure Choice Savings Program Fund.
(a) The Illinois Secure Choice Savings Program Fund is
hereby established as a trust outside of the State treasury,
with the Board created in Section 20 as its trustee. The Fund
shall include the individual retirement accounts of enrollees,
which shall be accounted for as individual accounts. Moneys in
the Fund shall consist of moneys received from enrollees and
participating employers pursuant to automatic payroll
deductions and contributions to savings made under this Act.
The Fund shall be operated in a manner determined by the Board,
provided that the Fund is operated so that the accounts of
enrollees established under the Program meet the requirements
for IRAs under the Internal Revenue Code.
(b) The amounts deposited in the Fund shall not constitute
property of the State and the Fund shall not be construed to be
a department, institution, or agency of the State. Amounts on
deposit in the Fund shall not be commingled with State funds
and the State shall have no claim to or against, or interest
in, such funds.
Section 16. Illinois Secure Choice Administrative Fund.
The Illinois Secure Choice Administrative Fund
("Administrative Fund") is created as a nonappropriated
separate and apart trust fund in the State Treasury. The Board
shall use moneys in the Administrative Fund to pay for
administrative expenses it incurs in the performance of its
duties under this Act. The Board shall use moneys in the
Administrative Fund to cover start-up administrative expenses
it incurs in the performance of its duties under this Act. The
Administrative Fund may receive any grants or other moneys
designated for administrative purposes from the State, or any
unit of federal or local government, or any other person, firm,
partnership, or corporation. Any interest earnings that are
attributable to moneys in the Administrative Fund must be
deposited into the Administrative Fund.
Section 20. Composition of the Board. There is created the
Illinois Secure Choice Savings Board.
(a) The Board shall consist of the following 7 members:
(1) the State Treasurer, or his or her designee, who
shall serve as chair;
(2) the State Comptroller, or his or her designee;
(3) the Director of the Governor's Office of Management
and Budget, or his or her designee;
(4) two public representatives with expertise in
retirement savings plan administration or investment, or
both, appointed by the Governor;
(5) a representative of participating employers,
appointed by the Governor; and
(6) a representative of enrollees, appointed by the
Governor.
(b) Members of the Board shall serve without compensation
but may be reimbursed for necessary travel expenses incurred in
connection with their Board duties from funds appropriated for
the purpose.
(c) The initial appointments for the Governor's appointees
shall be as follows: one public representative for 4 years; one
public representative for 2 years; the representative of
participating employers for 3 years; and the representative of
enrollees for 1 year. Thereafter, all of the Governor's
appointees shall be for terms of 4 years.
(d) A vacancy in the term of an appointed Board member
shall be filled for the balance of the unexpired term in the
same manner as the original appointment.
(e) Each appointment by the Governor shall be subject to
approval by the State Treasurer, who, upon approval, shall
certify his or her approval to the Secretary of State. Each
appointment by the Governor shall also be subject to the advice
and consent of the Senate. In case of a vacancy during a recess
of the Senate, the Governor shall make a temporary appointment
until the next meeting of the Senate, at which time the
Governor shall appoint some person to fill the office. If the
State Treasurer does not approve or disapprove the appointment
by the Governor within 60 session days after receipt thereof,
the person shall be deemed to have been approved by the State
Treasurer. Any appointment that has not been acted upon by the
Senate within 60 session days after the receipt thereof shall
be deemed to have received the advice and consent of the
Senate.
(f) Each Board member, prior to assuming office, shall take
an oath that he or she will diligently and honestly administer
the affairs of the Board and that he or she will not knowingly
violate or willingly permit to be violated any of the
provisions of law applicable to the Program. The oath shall be
certified by the officer before whom it is taken and
immediately filed in the office of the Secretary of State.
Section 25. Fiduciary Duty. The Board, the individual
members of the Board, the trustee appointed under subsection
(b) of Section 30, any other agents appointed or engaged by the
Board, and all persons serving as Program staff shall discharge
their duties with respect to the Program solely in the interest
of the Program's enrollees and beneficiaries as follows:
(1) for the exclusive purposes of providing benefits to
enrollees and beneficiaries and defraying reasonable
expenses of administering the Program;
(2) by investing with the care, skill, prudence, and
diligence under the prevailing circumstances that a
prudent person acting in a like capacity and familiar with
those matters would use in the conduct of an enterprise of
a like character and with like aims; and
(3) by using any contributions paid by employees and
employers into the trust exclusively for the purpose of
paying benefits to the enrollees of the Program, for the
cost of administration of the Program, and for investments
made for the benefit of the Program.
Section 30. Duties of the Board. In addition to the other
duties and responsibilities stated in this Act, the Board
shall:
(a) Cause the Program to be designed, established and
operated in a manner that:
(1) accords with best practices for retirement savings
vehicles;
(2) maximizes participation, savings, and sound
investment practices;
(3) maximizes simplicity, including ease of
administration for participating employers and enrollees;
(4) provides an efficient product to enrollees by
pooling investment funds;
(5) ensures the portability of benefits; and
(6) provides for the deaccumulation of enrollee assets
in a manner that maximizes financial security in
retirement.
(b) Appoint a trustee to the IRA Fund in compliance with
Section 408 of the Internal Revenue Code.
(c) Explore and establish investment options, subject to
Section 45 of this Act, that offer employees returns on
contributions and the conversion of individual retirement
savings account balances to secure retirement income without
incurring debt or liabilities to the State.
(d) Establish the process by which interest, investment
earnings, and investment losses are allocated to individual
program accounts on a pro rata basis and are computed at the
interest rate on the balance of an individual's account.
(e) Make and enter into contracts necessary for the
administration of the Program and Fund, including, but not
limited to, retaining and contracting with investment
managers, private financial institutions, other financial and
service providers, consultants, actuaries, counsel, auditors,
third-party administrators, and other professionals as
necessary.
(e-5) Conduct a review of the performance of any investment
vendors every 4 years, including, but not limited to, a review
of returns, fees, and customer service. A copy of reviews
conducted under this subsection (e-5) shall be posted to the
Board's Internet website.
(f) Determine the number and duties of staff members needed
to administer the Program and assemble such a staff, including,
as needed, employing staff, appointing a Program
administrator, and entering into contracts with the State
Treasurer to make employees of the State Treasurer's Office
available to administer the Program.
(g) Cause moneys in the Fund to be held and invested as
pooled investments described in Section 45 of this Act, with a
view to achieving cost savings through efficiencies and
economies of scale.
(h) Evaluate and establish the process by which an enrollee
is able to contribute a portion of his or her wages to the
Program for automatic deposit of those contributions and the
process by which the participating employer provides a payroll
deposit retirement savings arrangement to forward those
contributions and related information to the Program,
including, but not limited to, contracting with financial
service companies and third-party administrators with the
capability to receive and process employee information and
contributions for payroll deposit retirement savings
arrangements or similar arrangements.
(i) Design and establish the process for enrollment under
Section 60 of this Act, including the process by which an
employee can opt not to participate in the Program, select a
contribution level, select an investment option, and terminate
participation in the Program.
(j) Evaluate and establish the process by which an
individual may voluntarily enroll in and make contributions to
the Program.
(k) Accept any grants, appropriations, or other moneys from
the State, any unit of federal, State, or local government, or
any other person, firm, partnership, or corporation solely for
deposit into the Fund, whether for investment or administrative
purposes.
(l) Evaluate the need for, and procure as needed, insurance
against any and all loss in connection with the property,
assets, or activities of the Program, and indemnify as needed
each member of the Board from personal loss or liability
resulting from a member's action or inaction as a member of the
Board.
(m) Make provisions for the payment of administrative costs
and expenses for the creation, management, and operation of the
Program, including the costs associated with subsection (b) of
Section 20 of this Act, subsections (e), (f), (h), and (l) of
this Section, subsection (b) of Section 45 of this Act,
subsection (a) of Section 80 of this Act, and subsection (n) of
Section 85 of this Act. Subject to appropriation, the State may
pay administrative costs associated with the creation and
management of the Program until sufficient assets are available
in the Fund for that purpose. Thereafter, all administrative
costs of the Fund, including repayment of any start-up funds
provided by the State, shall be paid only out of moneys on
deposit therein. However, private funds or federal funding
received under subsection (k) of Section 30 of this Act in
order to implement the Program until the Fund is
self-sustaining shall not be repaid unless those funds were
offered contingent upon the promise of such repayment. The
Board shall keep annual administrative expenses as low as
possible, but in no event shall they exceed 0.75% of the total
trust balance.
(n) Allocate administrative fees to individual retirement
accounts in the Program on a pro rata basis.
(o) Set minimum and maximum contribution levels in
accordance with limits established for IRAs by the Internal
Revenue Code.
(p) Facilitate education and outreach to employers and
employees.
(q) Facilitate compliance by the Program with all
applicable requirements for the Program under the Internal
Revenue Code, including tax qualification requirements or any
other applicable law and accounting requirements.
(r) Carry out the duties and obligations of the Program in
an effective, efficient, and low-cost manner.
(s) Exercise any and all other powers reasonably necessary
for the effectuation of the purposes, objectives, and
provisions of this Act pertaining to the Program.
(t) Deposit into the Illinois Secure Choice Administrative
Fund all grants, gifts, donations, fees, and earnings from
investments from the Illinois Secure Choice Savings Program
Fund that are used to recover administrative costs. All
expenses of the Board shall be paid from the Illinois Secure
Choice Administrative Fund.
Section 35. Risk Management. The Board shall annually
prepare and adopt a written statement of investment policy that
includes a risk management and oversight program. This
investment policy shall prohibit the Board, Program, and Fund
from borrowing for investment purposes. The risk management and
oversight program shall be designed to ensure that an effective
risk management system is in place to monitor the risk levels
of the Program and Fund portfolio, to ensure that the risks
taken are prudent and properly managed, to provide an
integrated process for overall risk management, and to assess
investment returns as well as risk to determine if the risks
taken are adequately compensated compared to applicable
performance benchmarks and standards. The Board shall consider
the statement of investment policy and any changes in the
investment policy at a public hearing.
Section 40. Investment firms.
(a) The Board shall engage, after an open bid process, an
investment manager or managers to invest the Fund and any other
assets of the Program. Moneys in the Fund may be invested or
reinvested by the State Treasurer's Office or may be invested
in whole or in part under contract with the State Board of
Investment, private investment managers, or both, as selected
by the Board. In selecting the investment manager or managers,
the Board shall take into consideration and give weight to the
investment manager's fees and charges in order to reduce the
Program's administrative expenses.
(b) The investment manager or managers shall comply with
any and all applicable federal and state laws, rules, and
regulations, as well as any and all rules, policies, and
guidelines promulgated by the Board with respect to the Program
and the investment of the Fund, including, but not limited to,
the investment policy.
(c) The investment manager or managers shall provide such
reports as the Board deems necessary for the Board to oversee
each investment manager's performance and the performance of
the Fund.
Section 45. Investment options.
(a) The Board shall establish as an investment option a
life-cycle fund with a target date based upon the age of the
enrollee. This shall be the default investment option for
enrollees who fail to elect an investment option unless and
until the Board designates by rule a new investment option as
the default as described in subsection (c) of this Section.
(b) The Board may also establish any or all of the
following additional investment options:
(1) a conservative principal protection fund;
(2) a growth fund;
(3) a secure return fund whose primary objective is the
preservation of the safety of principal and the provision
of a stable and low-risk rate of return; if the Board
elects to establish a secure return fund, the Board may
procure any insurance, annuity, or other product to insure
the value of individuals' accounts and guarantee a rate of
return; the cost of such funding mechanism shall be paid
out of the Fund; under no circumstances shall the Board,
Program, Fund, the State, or any participating employer
assume any liability for investment or actuarial risk; the
Board shall determine whether to establish such investment
options based upon an analysis of their cost, risk profile,
benefit level, feasibility, and ease of implementation;
(4) an annuity fund.
(c) If the Board elects to establish a secure return fund,
the Board shall then determine whether such option shall
replace the target date or life-cycle fund as the default
investment option for enrollees who do not elect an investment
option. In making such determination, the Board shall consider
the cost, risk profile, benefit level, and ease of enrollment
in the secure return fund. The Board may at any time thereafter
revisit this question and, based upon an analysis of these
criteria, establish either the secure return fund or the
life-cycle fund as the default for enrollees who do not elect
an investment option.
Section 50. Benefits. Interest, investment earnings, and
investment losses shall be allocated to individual Program
accounts as established by the Board under subsection (d) of
Section 30 of this Act. An individual's retirement savings
benefit under the Program shall be an amount equal to the
balance in the individual's Program account on the date the
retirement savings benefit becomes payable. The State shall
have no liability for the payment of any benefit to any
participant in the Program.
Section 55. Employer and employee information packets and
disclosure forms.
(a) Prior to the opening of the Program for enrollment, the
Board shall design and disseminate to all employers an employer
information packet and an employee information packet, which
shall include background information on the Program,
appropriate disclosures for employees, and information
regarding the vendor Internet website described in subsection
(i) of Section 60 of this Act.
(b) The Board shall provide for the contents of both the
employee information packet and the employer information
packet.
(c) The employee information packet shall include a
disclosure form. The disclosure form shall explain, but not be
limited to, all of the following:
(1) the benefits and risks associated with making
contributions to the Program;
(2) the mechanics of how to make contributions to the
Program;
(3) how to opt out of the Program;
(4) how to participate in the Program with a level of
employee contributions other than 3%;
(5) the process for withdrawal of retirement savings;
(6) how to obtain additional information about the
Program;
(7) that employees seeking financial advice should
contact financial advisors, that participating employers
are not in a position to provide financial advice, and that
participating employers are not liable for decisions
employees make pursuant to this Act;
(8) that the Program is not an employer-sponsored
retirement plan; and
(9) that the Program Fund is not guaranteed by the
State.
(d) The employee information packet shall also include a
form for an employee to note his or her decision to opt out of
participation in the Program or elect to participate with a
level of employee contributions other than 3%.
(e) Participating employers shall supply the employee
information packet to employees upon launch of the Program.
Participating employers shall supply the employee information
packet to new employees at the time of hiring, and new
employees may opt out of participation in the Program or elect
to participate with a level of employee contributions other
than 3% at that time.
Section 60. Program implementation and enrollment. Except
as otherwise provided in Section 93 of this Act, the Program
shall be implemented, and enrollment of employees shall begin,
within 24 months after the effective date of this Act. The
provisions of this Section shall be in force after the Board
opens the Program for enrollment.
(a) Each employer shall establish a payroll deposit
retirement savings arrangement to allow each employee to
participate in the Program at most nine months after the Board
opens the Program for enrollment.
(b) Employers shall automatically enroll in the Program
each of their employees who has not opted out of participation
in the Program using the form described in subsection (c) of
Section 55 of this Act and shall provide payroll deduction
retirement savings arrangements for such employees and
deposit, on behalf of such employees, these funds into the
Program. Small employers may, but are not required to, provide
payroll deduction retirement savings arrangements for each
employee who elects to participate in the Program.
(c) Enrollees shall have the ability to select a
contribution level into the Fund. This level may be expressed
as a percentage of wages or as a dollar amount up to the
deductible amount for the enrollee's taxable year under Section
219(b)(1)(A) of the Internal Revenue Code. Enrollees may change
their contribution level at any time, subject to rules
promulgated by the Board. If an enrollee fails to select a
contribution level using the form described in subsection (c)
of Section 55 of this Act, then he or she shall contribute 3%
of his or her wages to the Program, provided that such
contributions shall not cause the enrollee's total
contributions to IRAs for the year to exceed the deductible
amount for the enrollee's taxable year under Section
219(b)(1)(A) of the Internal Revenue Code.
(d) Enrollees may select an investment option from the
permitted investment options listed in Section 45 of this Act.
Enrollees may change their investment option at any time,
subject to rules promulgated by the Board. In the event that an
enrollee fails to select an investment option, that enrollee
shall be placed in the investment option selected by the Board
as the default under subsection (c) of Section 45 of this Act.
If the Board has not selected a default investment option under
subsection (c) of Section 45 of this Act, then an enrollee who
fails to select an investment option shall be placed in the
life-cycle fund investment option.
(e) Following initial implementation of the Program
pursuant to this Section, at least once every year,
participating employers shall designate an open enrollment
period during which employees who previously opted out of the
Program may enroll in the Program.
(f) An employee who opts out of the Program who
subsequently wants to participate through the participating
employer's payroll deposit retirement savings arrangement may
only enroll during the participating employer's designated
open enrollment period or if permitted by the participating
employer at an earlier time.
(g) Employers shall retain the option at all times to set
up any type of employer-sponsored retirement plan, such as a
defined benefit plan or a 401(k), Simplified Employee Pension
(SEP) plan, or Savings Incentive Match Plan for Employees
(SIMPLE) plan, or to offer an automatic enrollment payroll
deduction IRA, instead of having a payroll deposit retirement
savings arrangement to allow employee participation in the
Program.
(h) An employee may terminate his or her participation in
the Program at any time in a manner prescribed by the Board.
(i) The Board shall establish and maintain an Internet
website designed to assist employers in identifying private
sector providers of retirement arrangements that can be set up
by the employer rather than allowing employee participation in
the Program under this Act; however, the Board shall only
establish and maintain an Internet website under this
subsection if there is sufficient interest in such an Internet
website by private sector providers and if the private sector
providers furnish the funding necessary to establish and
maintain the Internet website. The Board must provide public
notice of the availability of and the process for inclusion on
the Internet website before it becomes publicly available. This
Internet website must be available to the public before the
Board opens the Program for enrollment, and the Internet
website address must be included on any Internet website
posting or other materials regarding the Program offered to the
public by the Board.
Section 65. Payments. Employee contributions deducted by
the participating employer through payroll deduction shall be
paid by the participating employer to the Fund using one or
more payroll deposit retirement savings arrangements
established by the Board under subsection (h) of Section 30 of
this Act, either:
(1) on or before the last day of the month following
the month in which the compensation otherwise would have
been payable to the employee in cash; or
(2) before such later deadline prescribed by the Board
for making such payments, but not later than the due date
for the deposit of tax required to be deducted and withheld
relating to collection of income tax at source on wages or
for the deposit of tax required to be paid under the
unemployment insurance system for the payroll period to
which such payments relate.
Section 70. Duty and liability of the State.
(a) The State shall have no duty or liability to any party
for the payment of any retirement savings benefits accrued by
any individual under the Program. Any financial liability for
the payment of retirement savings benefits in excess of funds
available under the Program shall be borne solely by the
entities with whom the Board contracts to provide insurance to
protect the value of the Program.
(b) No State board, commission, or agency, or any officer,
employee, or member thereof is liable for any loss or
deficiency resulting from particular investments selected
under this Act, except for any liability that arises out of a
breach of fiduciary duty under Section 25 of this Act.
Section 75. Duty and liability of participating employers.
(a) Participating employers shall not have any liability
for an employee's decision to participate in, or opt out of,
the Program or for the investment decisions of the Board or of
any enrollee.
(b) A participating employer shall not be a fiduciary, or
considered to be a fiduciary, over the Program. A participating
employer shall not bear responsibility for the administration,
investment, or investment performance of the Program. A
participating employer shall not be liable with regard to
investment returns, Program design, and benefits paid to
Program participants.
Section 80. Audit and reports.
(a) The Board shall annually submit:
(1) an audited financial report, prepared in
accordance with generally accepted accounting principles,
on the operations of the Program during each calendar year
by July 1 of the following year to the Governor, the
Comptroller, the State Treasurer, and the General
Assembly; and
(2) a report prepared by the Board, which shall
include, but is not limited to, a summary of the benefits
provided by the Program, including the number of enrollees
in the Program, the percentage and amounts of investment
options and rates of return, and such other information
that is relevant to make a full, fair, and effective
disclosure of the operations of the Program and the Fund.
The annual audit shall be made by an independent certified
public accountant and shall include, but is not limited to,
direct and indirect costs attributable to the use of outside
consultants, independent contractors, and any other persons
who are not State employees for the administration of the
Program.
(b) In addition to any other statements or reports required
by law, the Board shall provide periodic reports at least
annually to participating employers, reporting the names of
each enrollee employed by the participating employer and the
amounts of contributions made by the participating employer on
behalf of each employee during the reporting period, as well as
to enrollees, reporting contributions and investment income
allocated to, withdrawals from, and balances in their Program
accounts for the reporting period. Such reports may include any
other information regarding the Program as the Board may
determine.
Section 85. Penalties.
(a) An employer who fails without reasonable cause to
enroll an employee in the Program within the time prescribed
under Section 60 of this Act shall be subject to a penalty
equal to:
(1) $250 for each employee for each calendar year or
portion of a calendar year during which the employee
neither was enrolled in the Program nor had elected out of
participation in the Program; or
(2) for each calendar year beginning after the date a
penalty has been assessed with respect to an employee, $500
for any portion of that calendar year during which such
employee continues to be unenrolled without electing out of
participation in the Program.
(b) After determining that an employer is subject to
penalty under this Section for a calendar year, the Department
shall issue a notice of proposed assessment to such employer,
stating the number of employees for which the penalty is
proposed under item (1) of subsection (a) of this Section and
the number of employees for which the penalty is proposed under
item (2) of subsection (a) of this Section for such calendar
year, and the total amount of penalties proposed.
Upon the expiration of 90 days after the date on which a
notice of proposed assessment was issued, the penalties
specified therein shall be deemed assessed, unless the employer
had filed a protest with the Department under subsection (c) of
this Section.
If, within 90 days after the date on which it was issued, a
protest of a notice of proposed assessment is filed under
subsection (c) of this Section, the penalties specified therein
shall be deemed assessed upon the date when the decision of the
Department with respect to the protest becomes final.
(c) A written protest against the proposed assessment shall
be filed with the Department in such form as the Department may
by rule prescribe, setting forth the grounds on which such
protest is based. If such a protest is filed within 90 days
after the date the notice of proposed assessment is issued, the
Department shall reconsider the proposed assessment and shall
grant the employer a hearing. As soon as practicable after such
reconsideration and hearing, the Department shall issue a
notice of decision to the employer, setting forth the
Department's findings of fact and the basis of decision. The
decision of the Department shall become final:
(1) if no action for review of the decision is
commenced under the Administrative Review Law, on the date
on which the time for commencement of such review has
expired; or
(2) if a timely action for review of the decision is
commenced under the Administrative Review Law, on the date
all proceedings in court for the review of such assessment
have terminated or the time for the taking thereof has
expired without such proceedings being instituted.
(d) As soon as practicable after the penalties specified in
a notice of proposed assessment are deemed assessed, the
Department shall give notice to the employer liable for any
unpaid portion of such assessment, stating the amount due and
demanding payment. If an employer neglects or refuses to pay
the entire liability shown on the notice and demand within 10
days after the notice and demand is issued, the unpaid amount
of the liability shall be a lien in favor of the State of
Illinois upon all property and rights to property, whether real
or personal, belonging to the employer, and the provisions in
the Illinois Income Tax Act regarding liens, levies and
collection actions with regard to assessed and unpaid
liabilities under that Act, including the periods for taking
any action, shall apply.
(e) An employer who has overpaid a penalty assessed under
this Section may file a claim for refund with the Department. A
claim shall be in writing in such form as the Department may by
rule prescribe and shall state the specific grounds upon which
it is founded. As soon as practicable after a claim for refund
is filed, the Department shall examine it and either issue a
refund or issue a notice of denial. If such a protest is filed,
the Department shall reconsider the denial and grant the
employer a hearing. As soon as practicable after such
reconsideration and hearing, the Department shall issue a
notice of decision to the employer. The notice shall set forth
briefly the Department's findings of fact and the basis of
decision in each case decided in whole or in part adversely to
the employer. A denial of a claim for refund becomes final 90
days after the date of issuance of the notice of the denial
except for such amounts denied as to which the employer has
filed a protest with the Department. If a protest has been
timely filed, the decision of the Department shall become
final:
(1) if no action for review of the decision is
commenced under the Administrative Review Law, on the date
on which the time for commencement of such review has
expired; or
(2) if a timely action for review of the decision is
commenced under the Administrative Review Law, on the date
all proceedings in court for the review of such assessment
have terminated or the time for the taking thereof has
expired without such proceedings being instituted.
(f) No notice of proposed assessment may be issued with
respect to a calendar year after June 30 of the fourth
subsequent calendar year. No claim for refund may be filed more
than 1 year after the date of payment of the amount to be
refunded.
(g) The provisions of the Administrative Review Law and the
rules adopted pursuant to it shall apply to and govern all
proceedings for the judicial review of final decisions of the
Department in response to a protest filed by the employer under
subsections (c) and (e) of this Section. Final decisions of the
Department shall constitute "administrative decisions" as
defined in Section 3-101 of the Code of Civil Procedure.
(h) Whenever notice is required by this Section, it may be
given or issued by mailing it by first-class mail addressed to
the person concerned at his or her last known address.
(i) All books and records and other papers and documents
relevant to the determination of any penalty due under this
Section shall, at all times during business hours of the day,
be subject to inspection by the Department or its duly
authorized agents and employees.
(j) The Department may require employers to report
information relevant to their compliance with this Act on
returns otherwise due from the employers under Section 704A of
the Illinois Income Tax Act and failure to provide the
requested information on a return shall cause such return to be
treated as unprocessable.
(k) For purposes of any provision of State law allowing the
Department or any other agency of this State to offset an
amount owed to a taxpayer against a tax liability of that
taxpayer or allowing the Department to offset an overpayment of
tax against any liability owed to the State, a penalty assessed
under this Section shall be deemed to be a tax liability of the
employer and any refund due to an employer shall be deemed to
be an overpayment of tax of the employer.
(l) Except as provided in this subsection, all information
received by the Department from returns filed by an employer or
from any investigation conducted under the provisions of this
Act shall be confidential, except for official purposes within
the Department or pursuant to official procedures for
collection of penalties assessed under this Act. Nothing
contained in this subsection shall prevent the Director from
publishing or making available to the public reasonable
statistics concerning the operation of this Act wherein the
contents of returns are grouped into aggregates in such a way
that the specific information of any employer shall not be
disclosed. Nothing contained in this subsection shall prevent
the Director from divulging information to an authorized
representative of the employer or to any person pursuant to a
request or authorization made by the employer or by an
authorized representative of the employer.
(m) Civil penalties collected under this Act and fees
collected pursuant to subsection (n) of this Section shall be
deposited into the Tax Compliance and Administration Fund. The
Department may, subject to appropriation, use moneys in the
fund to cover expenses it incurs in the performance of its
duties under this Act. Interest attributable to moneys in the
Tax Compliance and Administration Fund shall be credited to the
Tax Compliance and Administration Fund.
(n) The Department may charge the Board a reasonable fee
for its costs in performing its duties under this Section to
the extent that such costs have not been recovered from
penalties imposed under this Section.
(o) This Section shall become operative 9 months after the
Board notifies the Director that the Program has been
implemented. Upon receipt of such notification from the Board,
the Department shall immediately post on its Internet website a
notice stating that this Section is operative and the date that
it is first operative. This notice shall include a statement
that rather than enrolling employees in the Program under this
Act, employers may sponsor an alternative arrangement,
including, but not limited to, a defined benefit plan, 401(k)
plan, a Simplified Employee Pension (SEP) plan, a Savings
Incentive Match Plan for Employees (SIMPLE) plan, or an
automatic payroll deduction IRA offered through a private
provider. The Board shall provide a link to the vendor Internet
website described in subsection (i) of Section 60 of this Act.
Section 90. Rules. The Board and the Department shall
adopt, in accordance with the Illinois Administrative
Procedure Act, any rules that may be necessary to implement
this Act.
Section 93. Delayed implementation. If the Board does not
obtain adequate funds to implement the Program within the time
frame set forth under Section 60 of this Act, the Board may
delay the implementation of the Program.
Section 95. Federal considerations. The Board shall
request in writing an opinion or ruling from the appropriate
entity with jurisdiction over the federal Employee Retirement
Income Security Act regarding the applicability of the federal
Employee Retirement Income Security Act to the Program. The
Board may not implement the Program if the IRA arrangements
offered under the Program fail to qualify for the favorable
federal income tax treatment ordinarily accorded to IRAs under
the Internal Revenue Code or if it is determined that the
Program is an employee benefit plan and State or employer
liability is established under the federal Employee Retirement
Income Security Act.
Section 500. The State Finance Act is amended by adding
Section 5.855 as follows:
(30 ILCS 105/5.855 new)
Sec. 5.855. The Illinois Secure Choice Administrative
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