County Collector v. Goldman

• Citation: 23 Ill.App.3d 923,320 N.E.2d 456
• Decision Date: 04 November 1974
• Docket Number: Nos. 58709,58710,s. 58709
• Parties: Application of the COUNTY COLLECTOR, For Judgment and Order of Sale against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 1970 and for judgment Fixing the Correct Amount of any Tax Paid Under Protest for the Year 1970, Applicant-Appellee, v. Daniel GOLDMAN and Lawrence Fischer, Defendants-Appellants. Application of the COUNTY COLLECTOR, For judgment and Order of Sale against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 1970 and for Judgment Fixing the Correct Amount of any Tax Paid Under Protest for the Year 1970, Applicant-Appellee, v. M.I.G. CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 456

320 N.E.2d 456

23 Ill.App.3d 923

Application of the COUNTY COLLECTOR, For Judgment and Order

of Sale against Real Estate Returned Delinquent for the

Nonpayment of General Taxes for the Year 1970 and for

judgment Fixing the Correct Amount of any Tax Paid Under

Protest for the Year 1970, Applicant-Appellee, v. Daniel GOLDMAN and Lawrence Fischer, Defendants-Appellants.

Application of the COUNTY COLLECTOR, For judgment and Order

of Sale against Real Estate Returned Delinquent for the

Nonpayment of General Taxes for the Year 1970 and for

Judgment Fixing the Correct Amount of any Tax Paid Under

Protest for the Year 1970, Applicant-Appellee, v. M.I.G. CORPORATION, Defendant-Appellant.

Nos. 58709, 58710.

Appellate Court of Illinois, First District, First Division.

Nov. 4, 1974.

Rehearing Denied Nov. 26, 1974.

Anna R. Lavin and Melvin L. Klafter, Nathan & Klafter, Chicago, for defendants-appellants.

Bernard Carey, State's Atty. of Cook County, Chicago (Sheldon Gardner and Henry A. Hauser, Asst. State's Attys. of counsel) for applicant-appellee.

BURKE, Justice.

Applications were made by the county collector of Cook County (hereinafter 'County') for judgments fixing the correct amount of real estate tax for the year 1970 which had been paid under protest by the defendants, Daniel Goldman and Lawrence Fischer, in one case and the M.I.G. Corporation in another case. These two cases were consolidated for purposes of appeal. The defendants (hereinafter 'objectors'), Goldman and Fischer, filed Objection Number 4 and M.I.G. Corporation filed Objection Number 5. In both cases the court, sitting without a jury, found that the County's assessment of the value of the properties was so excessive that it constituted constructive fraud. However, the court also found in both cases that the objectors had only protested six percent of the tax at the time of payment and were therefore limited to a recovery of only six percent of the total, regardless of the amount of actual overassessment. The objectors appeal that portion of the final judgment which limits their recovery to six percent of all taxes paid.

When a county makes an application to the circuit court to fix the correct amount of real estate taxes paid, the interested taxpayers in question may raise defenses or objections to the county's determination. However, Section 716 of the Revenue Code (Ill.Rev.Stat.1969, ch. 120, par. 716) specifies that these objections may only be raised as to amounts which were paid under protest pursuant to the provisions of Section 675 of the Revenue Code. (Ill.Rev.Stat.1969, ch. 120, par. 675.) Proof of compliance with Section 675, concerning payment of taxes under protest, is a mandatory prerequisite to entering an objection to the amount of real estate taxes in a Section 716 proceeding. People ex rel. Darr v. Alton R.R., 380 Ill. 380, 43 N.E.2d 964; People ex rel. Anderson v. C. & E. I. R.R., 399 Ill. 520, 78 N.E.2d 265; People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill. 424, 19 N.E.2d 336.

Section 675 provides that if a person desires to object pursuant to Section 716 to all or any part of his real property taxes he must pay the taxes due and accompany the payment 'by a writing, substantially in the following form:

Payment under protest.

Vol. No. ..... Item No. ..... (as the the same appear on the General Tax Bill). Original amount of tax $..... This payment shall be applied to the taxes of all taxing bodies ratably, subject to refund of .....% Of the tax, which is objected to on the ground (here set forth ground of objection) and is, accordingly, made under protest.'

Both objectors contend that in the notices of protest they submitted they had protested the entire amount of the assessed value and not merely six percent as the lower court found. The objectors argue, therefore, they should have been entitled to a refund of the entire amount of overassessment and should not be limited to only six percent of the total. The sole issue in this case is whether the protest forms submitted by the objectors did effectively protest the entire amount of assessed value in accordance with Section 675. The relevant wording of the protest forms of both of the objectors is identical and therefore we set forth only one of the forms below:

                PAYMENT OF 1970 REAL ESTATE TAXES UNDER PROTEST
                'Pursuant to Section 194 of the Revenue Act of 1939, as amended, payment is
                herewith made under protest of the amount indicated below on the 1970 general
                taxes extended against the real estate described in the schedule of Volume and
                property numbers of property cards for the year 1970 appearing below or attached
                hereto and made a part hereof.  'This payment shall be applied to the taxes of
                all taxing bodies ratably subject to a refund of 6% Of the entire tax which is
                objected to on the ground of the illegality of the multiplier in determining the
                equalized valuation and that the taxes of the various taxing bodies making up
                the 1970 assessment are excessive, illegal, fraudulent and void (expressed in
                terms of dollars on each $100.00 of full valuation) as follows
                County of Cook ........................... $0.04
                Forest Preserve District of Cook County ... 0.02
                Sanitary District of Chicago .............. 0.03
                City of Chicago ........................... 0.04
                Board of Education of the City
                  of Chicago .............................. 0.04
                Chicago Park District ..................... 0.02
                

'This payment is accordingly made under protest and subject to a refund as to illegal, excessive and fraudulent rates and assessed value.'

The second paragraph of the objectors' protest form is set forth in a manner substantially similar to the format provided in Section 675 heretofore quoted. The only amount protested in this paragraph is six percent of the entire tax objected to on the ground that the multiplier used by the County was illegal. The court below held that this was the only amount protested. The third paragraph, however, said 'This payment is accordingly made under protest and subject to a refund as to illegal, excessive and fraudulent rates And assessed value.' (Emphasis added.) This paragraph, the objectors contend, was intended to protest the entire assessed value.

Section 675 does not require that the notice of protest be in the exact form which the statute delineates. The statute uses the words 'in substantially the following form.' This allows the objector to vary this form as long as his notice of protest contains all the essential requirements of the Section 675 form. (People ex rel. Darr v. Alton R.R.,380 Ill. 380, 43 N.E.2d 964.) The court in the Darr case held that not stating the volume number and item number shown on the general tax bill and merely using the words 'excessive, illegal and void' as the taxpayer's grounds of objection were not fatal to the taxpayer's protest. The court held that the grounds for an objection could be stated in general terms and the notice of protest was in substantial compliance with the statute. A notice of protest which enables the collector to ascertain the amount and origin or the protested tax and the grounds for that protest complies with Section 675. See People ex rel. Wisdom v. C.B. & Q. R.R., 32 Ill.2d 434, 206 N.E.2d 702.

In the present case, the objectors stated the volume numbers, item numbers and amounts paid on each item protested in a list below the paragraphs we have quoted. The third paragraph set forth that the payment of those taxes was paid under protest and subject to refund as to their 'illegal, excessive and fraudulent rates And assessed value.' (Emphasis added.) This paragraph clearly raised an objection to the values at which the properties were assessed. The...