Brown v. Zehnder

693 N.E.2d 1255, 295 Ill. App. 3d 1031, 230 Ill. Dec. 504
CourtAppellate Court of Illinois
DecidedApril 17, 1998
Docket1-96-2983
StatusPublished
Cited by14 cases

This text of 693 N.E.2d 1255 (Brown v. Zehnder) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Zehnder, 693 N.E.2d 1255, 295 Ill. App. 3d 1031, 230 Ill. Dec. 504 (Ill. Ct. App. 1998).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Robert W. Brown, brought this action to recover a tax penalty he paid to the Department of Revenue (Department) in his capacity as an officer of Suzy’s Sweets, Inc. (Suzy’s), a former Illinois corporation. The circuit court denied his motion for summary judgment and granted defendants’ motion for judgment on the pleadings. On appeal, Brown argues that he should not be held personally liable for the tax deficiency assessed against Suzy’s.

The Department issued a notice of penalty liability (Notice) to Brown on November 3, 1995, asserting that Brown was personally liable for the tax delinquency pursuant to section 3 — 7 of the Uniform Penalty and Interest Act (Act) (35 ILCS 735/3 — 7 (West 1994)) (section 3 — 7). The Department stated that taxes were owed for August, October, November, and December 1994. At least one of the corporation’s “Sales and Use” tax returns, on which Brown’s name was listed as the reporting officer, showed that Suzy’s collected those taxes. The Department, charging that those taxes were not remitted, issued the Notice and assessed a delinquency against Brown in the amount of $7,432.77.

Brown paid the delinquency under protest, then filed a two-count complaint in the circuit court against the Department and the State Treasurer, seeking a refund of his payment and certification of a class action on behalf of other taxpayers who received a similar Notice. Brown moved for summary judgment, arguing that as a matter of law he could not be held liable under section 3 — 7 for the corporation’s failure to pay its sales taxes. Defendants moved for judgment on the pleadings. In a written order, the circuit court denied the summary judgment motion, granted defendants’ motion, and dismissed the portion of the complaint requesting class action certification. The court also ordered the Treasurer to place the protest payment in the appropriate fund. The court subsequently stayed its order pending resolution of this appeal.

Section 2 — 615(e) of the Code of Civil Procedure provides that “[a]ny party may seasonably move for judgment on the pleadings.” 735 ILCS 5/2 — 615(e) (West 1994). A motion for judgment on the pleadings is similar to a motion for summary judgment in that both motions suggest the absence of any material factual issues as a matter of law. Metzger v. New Century Oil & Gas Supply Corp., 230 Ill. App. 3d 679, 688 (1992), citing Baker-Wendell, Inc. v. Edmond M. Cohon & Associates, Ltd., 100 Ill. App. 3d 924, 927, 427 N.E.2d 317 (1981) (judgment on pleadings); Mobil Oil Corp. v. Maryland Casualty Co., 288 Ill. App. 3d 743, 751, 681 N.E.2d 552 (1997) (summary judgment). A judgment on the pleadings depends upon the allegations of the pleadings to establish the absence of material fact, whereas summary judgment motions may rely on pleadings, depositions, exhibits, and affidavits on file. 735 ILCS 5/2 — 1005 (West 1994); Waterfront Estates Development, Inc. v. City of Palos Hills, 232 Ill. App. 3d 367, 372, 597 N.E.2d 641 (1992).

Section 3 — 7 of the Act provides that any corporate officer who is responsible for “filing returns and making payment of the amount of any trust tax” and “who wilfully fails to file the return or make the payment to the Department *** shall be personally liable” for the delinquency. 35 ILCS 735/3 — 7(a) (West 1994). Brown does not dispute that he was responsible for filing the relevant tax returns, the corporation owed the taxes, and his failure to file the returns was wilful. He argues, however, that as a matter of law he is not personally liable for the corporation’s tax delinquency under section 3 — 7. Brown contends that the Notice demanding payment of a delinquent “sales tax” could refer only to taxes collected pursuant to the Retailers’ Occupation Tax Act (35 ILCS 120/1 et seq. (West 1994)) (ROTA). He asserts that the Notice did not authorize the Department to collect any tax from him pursuant to the Use Tax Act (35 ILCS 105/1 et seq. (West 1994)) (UTA), because UTA applies to use taxes rather than sales taxes. In support of this assertion, Brown points to the corporation’s tax return, the top of which is labelled by the Department as “Sales and Use.” He argues that if UTA were meant to apply to sales taxes, the tax return would not differentiate between sales and use taxes. Brown further argues that ROTA taxes are not “trust taxes” as defined by section 3 — 7(f) and, because section 3 — 7(a) applies only to trust taxes, he cannot be held personally liable under that provision.

When construing a statute, courts must “ascertain and give effect to the true intent and meaning of the legislature.” Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194, 595 N.E.2d 561 (1992). In determining legislative intent, courts first examine the plain language of the statute; unambiguous terms, when not specifically defined, must be given their plain and ordinary meaning, Hernon, 149 Ill. 2d at 194-95. When interpreting its scope, “the entire statute must be considered.” City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 364, 522 N.E.2d 1219 (1988). Where possible, statutes should be construed so that no term is rendered superfluous or meaningless. Niven v. Siqueira, 109 Ill. 2d 357, 365, 487 N.E.2d 937 (1985).

The taxation scheme popularly known as the “sales tax” is comprised of two complementary statutes, ROTA and UTA. Hagerty v. General Motors Corp., 59 Ill. 2d 52, 54-55, 319 N.E.2d 5 (1974); Department of Revenue ex rel. People v. Steinkopf, 160 Ill. App. 3d 1008; 1013, 513 N.E.2d 1016 (1987) (Steinkopf). See also In re Groetken, 843 F.2d 1007, 1010 (7th Cir. 1988) (Groetken). ROTA imposes an occupational tax “upon persons engaged in the business of selling at retail tangible personal property.” 35 ILCS 120/2 (West 1994). UTA imposes a tax “upon the privilege of using in this State tangible personal property purchased at retail from a retailer.” 35 ILCS 105/3 (West 1994). If personal property is not taxable under ROTA, then it may not be taxed under UTA.

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Bluebook (online)
693 N.E.2d 1255, 295 Ill. App. 3d 1031, 230 Ill. Dec. 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-zehnder-illappct-1998.