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R-25-04 05/10/2004RESOLUTION A RESOLUTION AUTHORIZING A CONFIDENTIAL VOLUNTARY DISCLOSURE AGREEMENT BETWEEN AMERITECH ADVANCED DATA SERVICES OF ILLINOIS, INC. AND THE VILLAGE OF LEMONT WHEREAS, an internal audit conducted by Ameritech Advanced Data Services (AADS) found that certain taxes and fees were due to the Village of Lemont for the period of March 1, 2000 through December 31, 2002; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND MEMBERS OF THE BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK , WILL & DU PAGE COUNTIES, ILLINOIS that: Section 1: The Mayor and Village Clerk are authorized to execute the Confidential Voluntary Disclosure Agreement attached hereto as Exhibit "A ". Section 2: Effective Date: This Resolution shall become effective upon passage, approval and publication, in Book and Pamphlet form as provided by law. PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK, WILL AND DU PAGE COUNTIES ILLINOIS on this 10 A Day of Pia/ , 2004 Debby Blatzer Peter Coules Brian Reaves Steven Rosendahl Ronald Stapleton Jeanette Virgilio AYES NAYS PASSED ABSENT ✓ v RLENE SMOLLEN, Village Clerk MCDERMOTT, WILL & EMERY VILLAGE OF LEMONT AT TN: N: +%ILL A . 418 :v1A.!'i '1 REE T LEMONT, IL 60439 A Partnership Including Professional Corporations 227 West Monroe Street Chicago, IL 60606 -5096 312 - 372 -2000 Facsimile 312 -984 -7700 www.mwe.com Thomas H. Donohoe Attorney at Law tdonohoeQmwe.com 312 - 984 -7797 March 19, 2004 Re. Voluntary disclosure of certain tax liabilities by Ameritech Advanced Data Services of Illinois, Inc. Ladies and Gentlemen: Boston Chicago Dusseldorf London Los Angeles Miami Milan Munich New York Orange County Rome San Diego Silicon Valley Washington, D.C. Ameritech Advanced Data Services of Illinois, Inc. (hereafter "AADS ") is a subsidiary of SBC Communications, Inc. AADS is a telecommunications carrier that provides Asynchronous Transfer Mode Service (hereafter referred to as "ATM service ") and Digital Subscriber Line transport service (hereafter referred to as "DSL transport service "). AADS has determined that it had an obligation to remit to the VILLAGE OF LEMONT certain taxes and fees with respect to telecommunications service. AADS has elected to make a confidential voluntary disclosure of its liability as provided for in Section 75 of the Local Government Taxpayers' Bill of Rights Act, 50 ILCS 45/75. Section 75 limits the length of the period for which a taxpayer is liable for unpaid taxes and eliminates penalties. The liability has been determined based on AADS' provision of ATM service and DSL transr:ort service utilized by persons located in the VILLAGE OF LEMONT. Under Section 75. :Si yay' chi: LL.• s, tc,e,etie: ?iii in..ercai lit 7ii perccut perio :.s not ]nor: than 4 years before the date it files its voluntary disclosure application. The voluntary disclosure period thus begins on March 1, 2000. Local telecommunications taxes for periods beginning on January 1, 2003, which are required to be collected b} the Illinois Department of Revenue under the Simplified Municipal Telecommunications Tax Act, 35 ILCS 636/5 -1 et. seq., are in the process of being satisfied with that Department. When that process is completed, the Illinois Department of Revenue will distribute AADS's payments for the period from January 1, 2003 through November 30, 2003 to you. AADS began rerrlitting local taxes to the Illinois Department of Re-•-enue for periods beginning on December 1, 2003 and you will be receiving payments of those arnoun.s from the 3 inols Department of Re'.''enue. Two documents are enclosed with this ?edcr. The first is a "Confidential Notice of Voh,ntpsy Disclosure of Tax Obligation" (hereafter referred to as the "Confidential Notice"). The second is a "Confidential Voluntary Disclosure Agreement Between the VILLAGE OF LEMONT ztricl Ameritech Advanced Data Services of Illinois, Inc." (hereafter referred to as the "A 7, Cement. ") Attached to the. Agreement is an exhibit setting forth the amount of tax and or fees March 19, 2004 Page 2 that AADS has determined is owed to the VILLAGE OF LEMONT for the period from March 1, 2000 through December 31, 2002. The effect of the Confidential Notice is to claim the protections provided under Section 75. The Agreement is a proposed agreed final resolution of the issue of the amount of tax and fees that AADS owes for the period from March 1, 2000 through December 31, 2002. Please note that the exhibit attached to the Agreement has calculated interest through June 30, 2004. Section 75 of the Local Government Taxpayers' Bill of Rights Act provides that the taxpayer using the voluntary disclosure approach must only pay interest on the amount of tax owed at the rate of 1°4 per month through the date of payment. In the Agreement, AADS has offered to pay by. April 30, 2004 an additional amount of interest, though June 30, 2004, rather than limiting the intere.st calculation to the date on which AADS makes its payment to you. It makes that offer in anticipation of eliminating audits of the liability being disclosed. AADS recognizes that each taxing jurisdiction has the right to satisfy itself that the tax determination is correct. However, the number of taxing jurisdictions to which voluntary disclosure is being made is substantial and AADS's tax staff could quickly be overwhelmed by audits. AADS identified the underpayment in the course of an internal audit. No one outside the company has raised the issue and AADS has made this disclosure on its own initiative. AADS is thus respectfully offering to pay two months' interest (at 1% per month) on the liability from March 1. 2000 through December 31, 2002 in excess of the amount that it is obliged to pay under Section 75. In return for this additional payment, AADS requests that you execute and return the Agreement so that we receive it by April 16, 2004. In that case, AADS will forward its check for the taxes and fees owed, plus interest, plus the additional two months' interest, by April 30, 2004. If the Confidential Voluntary Disclosure Agreement is not returned by April 16, 2004, AADS plans to tender on April 30, 2004 its check for the amount of tax shown on the schedule with interest calculated only through that date. If an audit is requested, AADS will limit its interest payment to the amoun' required by Section 75 at the time of payment. Please return the executed Agreement to Janet Osborn at McDermott, Will & Emery. 227 West Monroe Street, Chicago, Illinois 60606. We will return a signed copy to you. Please direct any questions to Lisa Randle at 314- 235 -2677. Ms. Randle's e-mail address is 1r6167 @sbc.com. Very truly yours, Thomas H. Donohoe —Cc k \ — Voluntary Disclosure Agreement between Ameritech Advanced Data Services of Illinois, Inc. and the Village of Lemont To those communities that received a letter from the law firm of McDermott, Will & Emery, relating to Ameritech's discovery that it did not pay telecommunications taxes with regard to ATM and DSL services: I. What is the period of liability Ameritech has reported it failed to collect the tax for your municipality? A. Carol Stream is from March 1, 2000 through December 31, 2002 B. Woodridge is from March 1, 2000 through December 31, 2002 C. New Lenox is from March 1, 2000 through December 31, 2002 D. Rock Island is from March 1, 2000 through December 31, 2002 E. Barrington is from March 1, 2000 through December 31, 2002 F. Oak Brook Terrace is from March 1, 2000 through December 31, 2002, but the letter implies that they have underpaid the new Telecomm Fee /Tax that is collected by the State. They claim that they will correct that oversight through the State, but do not provide $ figures. G. Batavia is from March 1, 2000 through December 31, 2002 H. Downers Grove is from March 1, 2000 through December 31, 2002 I. Lemont is from March 1, 2000 through December 31, 2002 II. What is the total dollar amount Ameritech is reporting they owe your municipality in taxes? A. Carol Stream = $10,068.97 B. Woodridge = $ 7,250.76 C. New Lenox = $3,735.15 D. Rock Island = $5,149.09 E. Barrington = $32,566.46 as we have been at 3.5 %(1.0% IMF + 2.5% Telecomm Tax) since the beginning of 2000. F. Oak Brook Terrace = $14,006.81 G. Batavia = $31,343.12 (we had 5% tax at the time) H. Downers Grove = $124,765.14 I. Lemont = $22,444.27 III. What is the dollar amount of 2 months interest offered to your municipality to accept Ameritech's calculations of taxes owed? A. Carol Stream = $ 6,424.16 B. Woodridge = $4,940.90 C. New Lenox = $2,098.64 D. Rock Island = 1,898.39 E. Barrington = $9,466.69 F. Oak Brook Terrace = $4,833.50 G. Batavia = $10,680.13 H. Downers Grove = $42,810.86 I. Lemont = $5,944.88 IV. Has your municipality decided to accept Ameritech's initial offer of payment? A. Carol Stream is waiting for Village Attorney's review. B. Woodridge is waiting for Village Attorney's review. C. New Lenox is waiting for Village Attorney's review. D. Rock Island reviewed w/ the City Attorney and have tentatively decided to accept the offer E. Barrington tentatively going to recommend to the Village Board= acceptance of the agreement F. Oak Brook Terrace Waiting for Attorney review, also waiting for Primeco Defense Group review. G. Batavia signed the letter with the assumption that it would be costly to take legal action or attempt an audit and we would have had no idea that they had not paid the money in the first place or how to begin an audit process. H. Downers Grove hasn't signed yet but most likely will. I. Lemont awaiting review Has anybody determined if these $ are only for unpaid telecomm taxes, or a mixture of telecomm taxes and IMF? If the latter, this may be relevant to the Primeco litigation. MUNDELEIN I talked with Lisa Randle at SBC. The voluntary payment is for both IMF and telecommunications taxes that were not paid. There very well could be relevance to the lawsuit. The period covered by the refund ends 12- 31 -02. The IMF as a fee (rather than a tax) was in effect during that period. There is a pending challenge to the IMF fees as applied to landline providers as well as to the cellular providers. Mike Flynn Mundelein BARRINGTON I am assuming that the unpaid taxes include any IMF because of the amount Ameritech is saying they are liable to Barrington for. Barrington's liability amount is $32,566, compare this to other communities such as Carol Stream ($10,068) with four times our population and I assumed from this that Carol Stream had the 1% IMF on during the liability period. Would the Primeco Suit be a factor since these taxes owed are coming from Ameritech? I assumed these taxes were for landlines not cellular. Incidentally, I contacted NWMC and IML and they have not yet formed any recommendations about whether communities should accept the settlement. I also call IDOR and they would not confirm that they were auditing Ameritech or provide any other information due to confidentiality laws. BATAVIA Batavia did not have an IMF at the time - we had repealed it and increased our telcom tax so that the wireless would not be an issue for us. CONFIDENTIAL VOLUNTARY DISCLOSURE AGREEMENT BETWEEN AMERITECH ADVANCED DATA SERVICES OF ILLINOIS, INC. AND VILLAGE OF LEMONT This Confidential Voluntary Disclosure Agreement ( "Agreement ") is made effective April 15, 2004 between Ameritech Advanced Data Services of Illinois, Inc. (hereafter referred to as the "Taxpayer ") and the VILLAGE OF LEMONT (hereafter referred to as the "Taxing .urisdic;ion. ") RECITALS WHEREAS, the Taxpayer is voluntarily disclosing to the Taxing Jurisdiction its liability for all taxes and fees relating to telecommunications services imposed by the Taxing Jurisdiction (which taxes and fees are collectively referred to as the "Local Telecommunications Taxes ") for the periods beginning March 1, 2000 through December 31, 2002 pursuant to Section 75 of the Local Government Taxpayers' Bill of Rights Act (the "Act "), 50 ILCS 45/75; and WHEREAS, the Taxpayer warrants that it is not the subject of any audit, investigation, or assessment by the Taxing Jurisdiction's tax administrator; and WHEREAS, AADS has agreed with the Illinois Department for the satisfaction of taxes owed under the Simplified Municipal Telecommunications Tax Act for periods beginning January 1, 2003; and WHEREAS, the Taxing Jurisdiction is administratively convenienced by the Taxpayer's voluntary disclosure of its liability; and -1- WHEREAS, the Taxing Jurisdiction stands to derive substantial revenue that otherwise might have gone uncollected without the Taxpayer's voluntary disclosure; WHEREAS, the parties desire to finally determine the Taxpayer's liability for the Local Telecommunications Taxes for the period from March 1, 2000 through December 31, 2002 in return for Taxpayer's agreement to pay an amount of interest on its tax liability in excess of the amount required under the Act; NOW, THEREFORE, in consideration of the promises made herein, the sufficiency of which as consideration is acknowledged, the Taxing Jurisdiction and the Taxpayer agree as follows: 1. The recitals are incorporated into this Agreement. 2. The Taxpayer has determined that the amount of its liability for the Local Telecommunications Taxes for the periods beginning March 1, 2000 through December 31, 2002 (the "self- assessment period ") is shown on Exhibit A to this Agreement. This amount is hereafter referred to as the Tax Liability. 3. The Taxing Jurisdiction agrees that the Tax Liability is correct. 4. Upon Taxpayer's receipt of the executed Agreement on or before April 16, 2004, the Taxpayer shall pay to the Taxing Jurisdiction the amount of the Tax Liability plus interest thereon calculated as simple interest at the rate of 1% per month through July 31, 2004. The payment will be tendered on or before April 30, 2004. -2- 5. The Taxing Jurisdiction's receipt of the payment provided for in Paragraph 4 shall constitute a complete satisfaction and release of all of Taxpayer's liability for Local Telecommunications Taxes and penalties for all periods prior to January 1, 2003. 6. The persons signing this Agreement warrant that they have the power to bind the party for whom they are signing. 7. This Agreement may be executed in one or more counterparts each of which shall be considered an original. 8. This Agreement is governed by Illinois law. Ameritech Advanced Data Services of Illinois, Inc. By: Date: (Print Name) (Print Name) VILLAGE OF L ONT By: (Print Name) John F. Piazza. Village President (Print Name) - 3 - Date: 5'lo - EXHIBIT A TO CONFIDENTIAL VOLUNTARY DISCLOSURE AGREEMENT BETWEEN AMERITECH ADVANCED DATA SERVICES OF ILLINOIS, INC. AND VILLAGE OF LEMONT Liability for Local Telecommunication Taxes from March 1, 2000 through December 31, 2002 Interest through April 30, 2004 Interest through June 30, 2004 - 4 - $24,444.27 $5,455.99 $5,944.88 CONFIDENTIAL NOTICE OF VOLUNTARY DISCLOSURE OF TAX OBLIGATION Pursuant to Section 75 of the Local Government Taxpayers' Bill of Rights Act, 50 ILLS 45/75 (hereafter referred to as "Section 75 "), Ameritech Advanced Data Services of Illinois Inc. ( "AADS ") hereby exercises its right to file an application for voluntary disclosure of underpayment of the taxes and/or fees relating to telecommunications imposed by the VILLAGE OF LEMONT which taxes and/or fees are hereafter collectively referred to as "Local Telecommunications Taxes." AADS hereby notifies you states that it has determined that it did not pay applicable Local Telecommunications Taxes. Section 75 states that: For any tax for which a taxpayer has not received a written notice of an audit, investigation, or assessment from the local tax administrator, a taxpayer is entitled to file an application with the local tax administrator for a voluntary disclosure of the tax due. A taxpayer filing a voluntary disclosure application must agree to pay the amount of tax due, along with interest of one percent per month, for all periods prior to the filing of the application but not more than 4 years before the date of filing the application. Except for the amount of tax and interest due under this Section, a taxpayer filing a valid voluntary disclosure application may not be liable for any additional tax, interest, or penalty for any period before the date the application was filed, provided, however, that if the taxpayer incorrectly determined and underpaid the amount of tax due as provided in this Section, the taxpayer is liable for the underpaid tax along with applicable interest on the underpaid tax, unless the underpayment was the result of fraud on the part of the taxpayer, in which case the application shall be deemed invalid and void. 50 ILCS 45/75. AADS has not received a written notice of an audit, investigation, or assessment from the VILLAGE OF LEMONT tax administrator for underpaid Local Telecommunication Taxes. Under Section 75, AADS is entitled to file this application for voluntary disclosure. In accordance with the terms of the Act, AADS agrees to pay all outstanding Local Telecommunications Taxes along with interest of one percent per month for all periods after March 1, 2000 for which AADS has been liable to remit Local Telecommunications Taxes to the VILLAGE OF LEMONT within 90 days of the filing of this voluntary disclosure application or by the date agreed to by the VILLAGE OF LEMONT tax administrator, whichever is longer. A Confidential Voluntary Disclosure Agreement is attached. Please direct communications regarding this matter to: Lisa Randle One SBC Center 36 -K -7 St. Louis, MO 63101 314 -235 -2677 314 - 235 -7996 (fax) 1r6167@sbc.com Respectfully submitted, AMERITECH ADVANCED DATA SERVICES OF ILLINOIS, INC. 2000 West Ameritech Center Drive Hoffman Estates, IL 60196 FEIN 36- 3845233