Linn v. The Deparrtment of Revenue

2013 IL App (4th) 121055

• Court: Appellate Court of Illinois
• Decided: January 9, 2014
• Docket: 4-12-1055
• Status: Unpublished

Opinion

2013 IL App (4th) 121055 FILED December 18, 2013 NO. 4-12-1055 Carla Bender th 4 District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

LEWIS LINN, as Trustee of the Autonomy Trust 3, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County THE DEPARTMENT OF REVENUE; BRIAN ) No. 07TX0001/01 HAMER, in His Official Capacity as Director of The ) Department of Revenue; and DAN RUTHERFORD, in ) Honorable His Official Capacity as Treasurer of the State of Illinois, ) John Schmidt, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________________________

JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Knecht and Steigmann concurred in the judgment and opinion.

OPINION

¶ 1 In May 2007, plaintiff, Lewis Linn, as trustee of the Autonomy Trust 3, filed a

verified complaint for declaratory and injunctive relief against defendants, the Department of

Revenue (Department); Brian Hamer, as the Department's director; and Dan Rutherford, as the

Illinois Treasurer. Plaintiff's complaint sought the return of an income-tax payment it had made

under protest because any income taxation on the Autonomy Trust 3 was unconstitutional as the

trust had no connections with Illinois. The parties filed cross-motions for summary judgment.

After memoranda and oral arguments, the Sangamon County circuit court granted defendants'

motion for summary judgment and denied plaintiff's.

¶ 2 Plaintiff appeals, arguing the trial court erred in granting summary judgment in

defendants' favor because (1) the Illinois choice-of-law provision in the original trust agreement does not apply to the Autonomy Trust 3, and (2) the imposition of Illinois income taxation on the

Autonomy Trust 3 is unconstitutional as it violates both the due process and commerce clauses.

We reverse and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 In March 1961, A.N. Pritzker entered into a trust agreement establishing "P. G.

Trusts" with trustee Meyer Goldman, in which 20 separate, irrevocable trusts were created. At

the time of the agreement, both A.N. and Goldman were Illinois residents, and the trust assets

were deposited in Illinois. Article IX of the March 1961 trust agreement allowed the trustee to

distribute the whole or part of the corpus of the trust to a different trustee or trustees to hold in

further trust for the exclusive benefit of the beneficiary of each of the 1961 trusts. Article V,

section 2(b), also gave the trustee the power, in his discretion, to distribute the whole or part of

the trust corpus to its beneficiary after the beneficiary had attained 30 years of age. Further,

article XIV of the March 1961 agreement stated the following: "This Agreement shall be

construed and administered and the validity of the trusts hereby created shall be determined in

accordance with the laws of the State of Illinois." One of the trusts was for the primary benefit of

A.N.'s granddaughter Linda Pritzker and was named the "Linda Trust."

¶ 5 Beginning in 1968, other adult beneficiaries of the P.G. Trusts (not Linda) created

a new set of trusts called the A.N.P. Trusts with assets from the P.G. Trusts. In 1975, Goldman

filed a complaint, addressing, inter alia, the adult beneficiaries' right to transfer their interests to

the A.N.P. Trusts. Goldman v. Pritzker, No.75-CH-4214 (Cir. Ct. Cook Co.). In June 1977, the

circuit court entered a lengthy order granting the relief requested in Goldman's complaint, as

amended, and thus approving the creation of the A.N.P. trusts. In the written order, the court

-2- retained jurisdiction of the cause and parties for the purpose of paying the fees, costs, and

expenses of the proceedings and for any further orders necessary to interpret or implement the

provisions of the court's order.

¶ 6 A.N. died in 1986 as an Illinois resident, and his estate was probated in Illinois.

At some point, Thomas Pritzker of Illinois, Marshall Eisenberg of Illinois, and Arnold Weber

succeeded Goldman as trustees of the Linda Trust and were the trustees of the Linda Trust in

2002. (In 2008, the trustees of the Linda Trust still included two Illinois residents and one

nonresident.) On January 2, 2002, the trustees of the Linda Trust exercised their limited power

of appointment contained in articles V and IX of the March 1961 trust agreement and irrevocably

distributed assets from the Linda Trust to plaintiff, as trustee of the Autonomy Trust 3, for the

exclusive benefit of Linda.

¶ 7 Along with the power of appointment, the trustees of the Linda Trust and plaintiff

entered into a trust agreement that created the Autonomy Trust 3. Provision 9 of the January

2002 trust agreement named Jay Robert Pritzker of Illinois as protector of the trusts created

hereunder. We note that Jay was replaced as protector of the Autonomy Trust 3 in December

2002 by Basil Zirinis of Connecticut. Moreover, provision 14 of the January 2002 trust

agreement contained the perpetuities savings clause and referenced the lives of those named in

the March 1961 trust agreement. Last, provision 15 stated the Autonomy Trust 3 was to be

construed and regulated under Texas law, "except that the terms 'income,' 'principal,' and 'power

of appointment' and the provisions relating thereto shall be interpreted under the laws of the state

of Illinois."

¶ 8 In February 2004, plaintiff filed a complaint in the probate court of Harris County,

-3- Texas, seeking reformation of provision 15 of the Autonomy Trust 3 and other trusts that applied

Illinois law to some of their terms. Plaintiff sought to strike the language referring to Illinois

law, leaving the trusts to be construed and regulated by only Texas law. On November 4, 2005,

the probate court entered an order, granting the relief plaintiff requested. However, the judgment

stated the following: "This Judgment shall become effective as to each of the Trusts as of the

date that the Internal Revenue Service issues a favorable ruling holding that the modifications

and declarations of this Judgment to the Trust do not result in the loss of such Trust's generation-

skipping transfer tax exempt status or otherwise subject such Trust to the generation-skipping

transfer tax."

¶ 9 In 2006, Linda, her children, and the other contingent beneficiaries of the

Autonomy Trust 3 were not Illinois residents. Plaintiff resided in Texas, and the Autonomy

Trust 3 was administered in Texas. The Autonomy Trust 3 had no assets in Illinois.

¶ 10 In April 2007, the Autonomy Trust 3 filed a 2006 nonresident Illinois income and

replacement tax return, reporting no income from Illinois sources and thus no tax was owed. The

Department reclassified the Autonomy Trust 3 as an Illinois resident under section

1501(a)(20)(D) of the Illinois Income Tax Act (Tax Act) (35 ILCS 5/1501(a)(20)(D) (West

2006)), taxed 100% of the trust's reported income, and assessed a deficiency liability of $2,729.

Pursuant to section 2a of the State Officers and Employees Money Disposition Act (30 ILCS

230/2a (West 2006)), the Autonomy Trust 3 paid the $2,729 in income tax under protest.

¶ 11 In May 2007, plaintiff filed the verified complaint for declaratory and injunctive

relief, asserting Illinois's imposition of income tax on the Autonomy Trust 3 violates the

commerce, due process, and equal protection clauses of the United States Constitution (U.S.

-4- Const., art. I, § 8, amend. XIV, § 1) and the uniformity clause of the Illinois Constitution of 1970

(Ill. Const. 1970, art. IX, § 2). Former Illinois Treasurer Alexi Giannoulias was originally listed

as one of the defendants and was later replaced by current Illinois Treasurer Dan Rutherford

when Giannoulias's term ended.

¶ 12 In September 2011, plaintiff filed a motion for summary judgment with a

supporting memorandum. Along with the memorandum, plaintiff submitted a declaration by him

and one by Zirinis. In his declaration, plaintiff states the Texas probate court's judgment became

effective on November 4, 2005, the date it was entered. Zirinis stated the duties of the

Autonomy Trust 3's protector includes the power to remove any trustee, revoke the designation

of a successor trustee, and appoint a successor protector.

¶ 13 In May 2012, defendants filed a cross-motion for summary judgement and a

response to plaintiff's motion for summary judgment. Defendants first asserted the case could be

decided on nonconstitutional grounds and argued (1) the grantor of the Autonomy Trust 3

voluntarily established all of the trusts and subsequent trusts pursuant to Illinois law, (2) the

Texas probate court judgment is not binding on this court, and (3) the Department assessed tax

on the Autonomy Trust 3 in accordance with Illinois statutes. Defendants then argued the

income tax on the Autonomy Trust 3 was constitutional. In support of their motion, defendants

attached the following: (1) the March 1961 trust agreement; (2) plaintiff's first response to

defendants' interrogatories (in interrogatory No. 9, plaintiff states the Internal Revenue Service

had not issued a ruling regarding the generation-skipping transfer tax); (3) plaintiff's response to

defendants' second set of supplemental interrogatories; (4) plaintiff's response to defendants'

request to admit; (5) the January 2002 trust agreement; (6) the exercise of the power of

-5- appointment establishing the Autonomy Trust 3; (7) plaintiff's response to defendants' first

supplemental interrogatories; (8) plaintiff's petition in the Texas probate court; and (9) the Texas

probate court judgment. In July 2012, plaintiff filed a memorandum in response to defendants'

cross-motion for summary judgment and did not attach any supporting documents. In September

2012, defendants filed a reply, attaching the June 1977 judgment of the Cook County circuit

court.

¶ 14 On October 12, 2012, the trial court heard oral arguments on the cross-motions for

summary judgment. Twelve days later, the court entered a written order, granting defendants'

motion for summary judgment and denying plaintiff's. In reaching that judgment, the court found

the March 1961 trust agreement provided Illinois law was to govern the trust agreement and any

trusts hereby created, which would include the Autonomy Trust 3. The court then concluded the

fact Illinois law governed the Autonomy Trust 3 was a sufficient contact to satisfy the due

process and commerce clauses.

¶ 15 On November 9, 2012, plaintiff filed a timely notice of appeal, which was in

sufficient compliance with Illinois Supreme Court Rule 303 (eff. May 30, 2008), despite its

failure to list the Department as a defendant. See Harry W. Kuhn, Inc. v. County of Du Page, 203

Ill. App. 3d 677, 684-85, 561 N.E.2d 458, 463 (1990) (finding the failure to list all of the

defendants in notice of appeal did not render the notice fatally defective where the defendants

were all represented by the same attorney and the appellee did not suffer prejudice). Thus, this

court has jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 16 II. ANALYSIS

¶ 17 A. Summary Judgment

-6- ¶ 18 A grant of summary judgment is only appropriate when the pleadings,

depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and

the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010);

Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 8-9 (2008). " 'As in this case, where

the parties file cross-motions for summary judgment, they invite the court to decide the issues

presented as a matter of law.' " A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 401 Ill. App. 3d 326,

330, 929 N.E.2d 1188, 1192 (2010) (quoting Liberty Mutual Fire Insurance Co. v. St. Paul Fire

& Marine Insurance Co., 363 Ill. App. 3d 335, 339, 842 N.E.2d 170, 173 (2005)). We review de

novo the trial court's ruling on a motion for summary judgment. See Williams, 228 Ill. 2d at 417,

888 N.E.2d at 9.

¶ 19 B. Illinois Income Tax

¶ 20 The starting point for income taxation in Illinois is section 201(a) of the Tax Act

(35 ILCS 5/201(a) (West 2006)), which provides, in relevant part: "A tax measured by net

income is hereby imposed on every individual, corporation, trust and estate *** on the privilege

of earning or receiving income in or as a resident of this State." (Emphases added.) See also

Rockwood Holding Co. v. Department of Revenue, 312 Ill. App. 3d 1120, 1123-24, 728 N.E.2d

519, 523 (2000). For residents, "[a]ll items of income or deduction which were taken into

account in the computation of base income for the taxable year by a resident shall be allocated to

this State." 35 ILCS 5/301(a) (West 2006). Section 1501(a)(20)(D) of the Tax Act (35 ILCS

5/1501(a)(20)(D) (West 2006)) defines "resident," in pertinent part, as "[a]n irrevocable trust, the

grantor of which was domiciled in this State at the time such trust became irrevocable." The

parties agree the Autonomy Trust 3 is an irrevocable trust, and A.N. Pritzker, who was an Illinois

-7- resident, is considered to be the grantor of the Autonomy Trust 3. Thus, under the Tax Act, the

Autonomy Trust 3 is an Illinois resident and subject to Illinois income tax.

¶ 21 On appeal, the parties now agree this case cannot be resolved on a

nonconstitutional basis. Thus, we turn to plaintiff's allegations of constitutional violations.

Plaintiff asserts the imposition of Illinois income tax on the Autonomy Trust 3 is unconstitutional

as applied to the trust as it violates both the due process and the commerce clauses. "In

undertaking our review, we presume that statutory enactments are constitutional. The burden is

on the party challenging the statute to clearly establish any constitutional invalidity. The burden

is a formidable one, and this court will uphold a statute's validity whenever it is reasonably

possible to do so." Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 334, 860 N.E.2d 246, 255

(2006).

¶ 22 1. Due Process

¶ 23 For a tax to comply with the due process clause, (1) a minimum connection must

exist between the state and the person, property, or transaction it seeks to tax, and (2) "the

income attributed to the State for tax purposes must be rationally related to values connected

with the taxing State." (Internal quotation marks omitted.) Quill Corp. v. North Dakota, 504

U.S. 298, 306 (1992) (quoting Moorman Manufacturing Co. v. Bair, 437 U.S. 267, 273 (1978)).

In Quill Corp., 504 U.S. at 307-08, the Supreme Court equated that analysis with the

determination of whether a state has personal jurisdiction over a given entity. After analyzing the

case law regarding personal jurisdiction, the Quill Corp. Court held the due process clause did

not require physical presence in a state for the collection of a use tax. Quill Corp., 504 U.S. at

308. There, the company's ongoing solicitation of business in North Dakota was more than

-8- enough to subject it to North Dakota's use tax. Quill Corp., 504 U.S. at 308.

¶ 24 Plaintiff asserts the Autonomy Trust 3 has no connections to Illinois. He notes the

Autonomy Trust 3 is a Texas trust that is governed by the laws of and administered in Texas.

Moreover, in 2006, the Autonomy Trust 3's trustee, beneficiary, and protector were all not

residents of Illinois. Without any connections to Illinois, the imposition of Illinois income tax on

the Autonomy Trust 3 would be unconstitutional under the due process clause. Plaintiffs have

shown no connections appear to exist with the trust in this case. However, defendants contend

connections do exist because (1) the Autonomy Trust 3 owes its existence to Illinois, and (2)

Illinois provides the Autonomy Trust 3's trustee and beneficiary with a panoply of legal benefits

and opportunities. We note that, on appeal, defendants do not argue that, in 2006, the Autonomy

Trust 3 still contained terms to be interpreted under Illinois law and that the Illinois choice of law

provision in the March 1961 agreement applies to the Autonomy Trust 3.

¶ 25 Both parties cite the Connecticut Supreme Court's decision in Chase Manhattan

Bank v. Gavin, 733 A.2d 782 (Conn. 1999), which was decided after the United States Supreme

Court's Quill Corp. decision. There, the plaintiffs asserted Connecticut's income taxation on the

undistributed taxable income of four testamentary trusts and one inter vivos trust was

unconstitutional because it violated the due process and commerce clauses. Gavin, 733 A.2d at

785-86. Since the case before us involves an inter vivos trust, we focus on the facts and analysis

related to the inter vivos trust. Under Connecticut law, a resident inter vivos trust is " 'a trust, or a

portion of a trust, consisting of the property of (i) a person who was a resident of this state at the

time the property was transferred to the trust if the trust was then irrevocable.' " Gavin, 733 A.2d

at 789 (quoting Conn. Gen. Stat. § 12-701(a)(4)(D) (1993)). However, with an inter vivos trust,

-9- taxable income is then modifiable under a formula that takes into account whether the trust has

any resident, noncontingent beneficiaries. Gavin, 733 A.2d at 790. Thus, Connecticut taxes only

that portion of the inter vivo trust's undistributed income that corresponds to the number of

noncontingent beneficiaries that live in Connecticut. Gavin, 733 A.2d at 790. Accordingly, in

Gavin, 733 A.2d at 790, the taxability of the inter vivos trust's income was based on the facts the

trust's settlor was a Connecticut resident when he established the trust and the trust's beneficiary

was a Connecticut resident.

¶ 26 Regarding due process, the Connecticut Supreme Court found the critical link

between Connecticut and the undistributed income sought to be taxed was the fact the inter vivos

trust's noncontingent beneficiary was a Connecticut resident during the tax year in question.

Gavin, 733 A.2d at 802. It explained that, as a Connecticut resident, the noncontigent

beneficiary's rights to the eventual receipt and enjoyment of the accumulated income were

protected by Connecticut law so long as the beneficiary remained a resident of the state. Gavin,

733 A.2d at 802. The Gavin court recognized the connection was "more attenuated" than in the

case of a testamentary trust but still found the connection was sufficient to satisfy due process.

Gavin, 733 A.2d at 802.

¶ 27 In support of its conclusion, the Gavin court noted the United State Supreme

Court had held a state may tax the undistributed income of a trust based on the presence of the

trustee in the state because it gave the trustee the protection and benefits of its laws (Greenough

v. Tax Assessors, 331 U.S. 486, 496 (1947)), which are the same benefits and protections

provided a resident, noncontingent beneficiary. Gavin, 733 A.2d at 802. The Gavin court also

noted its conclusion was consistent with the California Supreme Court's decision in McCulloch v.

- 10 - Franchise Tax Board, 390 P.2d 412 (Cal. 1964). Gavin, 733 A.2d at 802. There, the California

Supreme Court did not find a due-process violation where California taxed the undistributed

income of an out-of-state testamentary trust based solely on the California residence of the trust's

beneficiary. McCulloch, 390 P.2d at 418. It reasoned California law provided benefit and

protection to the resident beneficiary. McCulloch, 390 P.2d at 418-19.

¶ 28 Defendants begin their argument the Autonomy Trust 3 owes its existence to

Illinois by noting the trust's grantor was an Illinois resident. In support of that argument, they

cite portions of the Gavin opinion that found the grantor's in-state residency was sufficient to

establish a minimum contact as to the four testamentary trusts as well as other case law

addressing testamentary trusts. However, we are dealing with an inter vivos trust. Since an inter

vivos trust is not created by the probate of the decedent's will in a state court, its connection with

the state has been described as more attenuated than a testamentary trust. Gavin, 733 A.2d at

802; District of Columbia v. Chase Manhattan Bank, 689 A.2d 539, 547 n.11 (D.C. 1997).

Moreover, an irrevocable inter vivos trust does not owe its existence to the laws and courts of the

state of the grantor in the same way a testamentary trust does and thus does not have the same

permanent tie. District of Columbia, 689 A.2d at 547 n.11. With the inter vivos trust, the

Connecticut Supreme Court found the critical link between the state and the inter vivos trust was

the trust's noncontingent beneficiary was a Connecticut resident during the tax year in question.

Gavin, 733 A.2d at 802. Autonomy Trust 3 does not have a noncontingent beneficiary in Illinois.

Defendants cite no cases finding a grantor's in-state residency is a sufficient connection for due

process with an inter vivos trust.

¶ 29 On the other hand, we note decisions from other states have found the grantor's in-

- 11 - state residence insufficient to establish a minimum connection. In Blue v. Department of

Treasury, 462 N.W.2d 762, 764 (Mich. Ct. App. 1990), the Michigan appellate court found

insufficient connections between an inter vivos trust whose grantor was a Michigan resident and

the State of Michigan's imposition of an income tax. There, the only thing in Michigan was one

non-income-producing parcel of real estate, and thus the court concluded Michigan provided no

ongoing protection or benefit to the trust. Blue, 462 N.W.2d at 764. In Mercantile-Safe Deposit

& Trust Co. v. Murphy, 242 N.Y.S.2d 26, 28 (N.Y. App. Div. 1963), a New York appellate court

found a due process violation where New York imposed an income tax on income accumulated

in a trust created by a New York resident where the trustee resided in Maryland, the trust was

administered in Maryland, and trust assets were in the trustee's exclusive possession and control

in Maryland. Accordingly, we find the fact the Autonomy Trust 3's grantor was an Illinois

resident is not a sufficient connection to satisfy due process.

¶ 30 Defendants further argue the Autonomy Trust 3 exists only because of Illinois

law. However, Autonomy Trust 3 resulted from a January 2002 exercise of the limited power of

appointment by the trustee of the P.G. Linda Trust, which was provided for in the March 1961

trust agreement. Assuming arguendo, an Illinois court ruling validated a provision of the March

1961 agreement that allowed for the limited power of appointment that was later invoked to

create the Autonomy Trust 3, the Autonomy Trust 3 was created by the provisions of the March

1961 agreement allowing for powers of appointment and not Illinois law. Further, with income

taxation, the focus of the due process analysis is on the tax year in question, which would be

2006 in this case. See Gavin, 733 A.2d at 802 (noting the connection for the inter vivos trust was

the fact a noncontingent beneficiary was an in-state resident during the tax year in question); see

- 12 - also In re Swift, 727 S.W.2d 880, 882 (Mo. 1987) (addressing income taxation on a testamentary

trust and stating, "An income tax is justified only when contemporary benefits and protections

are provided the subject property or entity during the relevant taxing period"). Thus, what

happened historically with the trust in Illinois courts and under Illinois law has no bearing on the

2006 tax year.

¶ 31 Additionally, defendants argue the State of Illinois provides the trustee and

beneficiary of the Autonomy Trust 3 with a panoply of legal benefits and opportunities. In

support of its assertion, it again cites case law addressing testamentary trusts. See Gavin, 733

A.2d at 799; District of Columbia, 689 A.2d at 544. As we have stated, this case involves an

inter vivos trust, not a testamentary trust. The Autonomy Trust 3 was not in existence when A.N.

Pritzker died and thus was not part of his probate case. Accordingly, no Illinois probate court has

jurisdiction over the Autonomy Trust 3, unlike in the testamentary trust cases.

¶ 32 Defendants also cite several Illinois statutory provisions and claim the Autonomy

Trust 3, plaintiff, Linda, or a contingent beneficiary can seek those statutory provisions at any

time. However, the parties agree that, after the November 2005 Texas reformation order, the

Autonomy Trust 3 choice of law provision provided for only the application of Texas law.

Further, as stated earlier, the 1977 Cook County case has no application at all to the Autonomy

Trust 3 because it dealt with beneficiary powers of appointment, not trustee powers of

appointment in the March 1961 trust agreement. Accordingly, we find the Autonomy Trust 3

receives the benefits and protections of Texas law, not Illinois law.

¶ 33 Last, we note the company in Quill Corp. mailed catalogs into North Dakota,

seeking business there. Quill Corp., 504 U.S. at 302. Here, in 2006, the Autonomy Trust 3 had

- 13 - nothing in and sought noting from Illinois. As plaintiff notes, all of the trust's business was

conducted in Texas; the trustee, protector, and the noncontingent beneficiary resided outside

Illinois; and none of the trust's property was in Illinois. Moreover, the Autonomy Trust 3 meets

none of the following factors that would give Illinois personal jurisdiction over the trust in a

litigation: "the provisions of the trust instrument, the residence of the trustees, the residence of

its beneficiaries, the location of the trust assets, and the location where the business of the trust is

to be conducted." Sullivan v. Kodsi, 359 Ill. App. 3d 1005, 1011, 836 N.E.2d 125, 131 (2005)

(citing People v. First National Bank of Chicago, 364 Ill. 262, 268, 4 N.E.2d 378, 380 (1936)).

Accordingly, we find insufficient contacts exist between Illinois and the Autonomy Trust 3 to

satisfy the due process clause, and thus the income tax imposed on the Autonomy Trust 3 for the

tax year 2006 was unconstitutional. Thus, summary judgment should have been granted in

plaintiff's favor. Since we have found the income taxation of the Autonomy Trust 3 in 2006

violates the due process clause, we do not address plaintiff's commerce clause argument.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we reverse the Sangamon County circuit court's judgment

and remand the cause for that court to enter an order granting plaintiff's summary-judgment

motion and denying defendants'.

¶ 36 Reversed and remanded with directions.

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