Department of Revenue v. Barding

• Decision Date: 28 September 1965
• Docket Number: 39249,Nos. 39248,s. 39248
• Citation: 33 Ill.2d 235,210 N.E.2d 475
• Parties: DEPARTMENT OF REVENUE, Appellee, v. Ralph BARDING, d/b/a Barding Used Cars, Appellant. DEPARTMENT OF REVENUE, Appellee, v. BARDING TRAILER SALES, INC., Appellant.
• Court: Illinois Supreme Court

Page 475

210 N.E.2d 475

33 Ill.2d 235

DEPARTMENT OF REVENUE, Appellee, v. Ralph BARDING, d/b/a Barding Used Cars, Appellant.

DEPARTMENT OF REVENUE, Appellee, v. BARDING TRAILER SALES, INC., Appellant.

Nos. 39248, 39249.

Supreme Court of Illinois.

Sept. 28, 1965.

Michael M. Phillips, Chicago, for appellant.

William G. Clark, Atty. Gen., Springfield (Joseph A. Londrigan, Special Asst. Atty. Gen., and George W. Schwaner, Jr., Asst. Atty. Gen., of counsel), for appellee.

UNDERWOOD, Justice.

These are consolidated appeals from judgments of the circuit court of Macon County finding defendant taxpayers, appellants here, indebted to the State of Illinois for retailers' occupation taxes, with interest at 5% per annum from May 15, 1952. The revenue is involved, conferring jurisdiction upon this court by direct appeal. Defendant taxpayers have elected to confine their briefs to the pleadings in the cause against Barding Trailer Sales, Inc. (No. 39249). We accordingly set forth the relevant facts in that case only.

On May 14, 1952, the Department of Revenue mailed by registered letter to defendant taxpayer a final assessment under the Retailers' Occupation Tax Act which was received on May 16, 1952. On June 17, 1952, a complaint was filed by the taxpayer under the provisions of the Administrative Review Act in the circuit court of Cook County. The required bond was approved by that court and filed therewith. In June of 1954, since the taxpayer's principal place of business is in Macon County, the Department of Revenue moved to transfer the cause to the circuit court of Macon County, whereupon the transfer was ordered. The action was placed upon that court's docket on October 16, 1954, where it remained dormant until April 28, 1961, when the cause was dismissed for want of prosecution. Subsequently, on March 5, 1963, this action to compel payment of the tax was instituted by the Department.

The principal contention of defendant taxpayer is that the action was barred since no complaint was filed in a court of competent jurisdiction within the two-year period prescribed in section 5 of the Retailers' Occupation Tax Act. (Ill.Rev.Stat.1963, chap. 120, par. 444.) This theory is predicated upon the premise that under section 12 of the act (Ill.Rev.Stat.1963, chap. 120, par. 451), only the circuit court of the county wherein the taxpayer has his principal place of business has the power to review administrative decisions of the Department of Revenue, the statute being jurisdictional. It is therefore maintained that the action instituted in the circuit court of Cook County was null and void and the purported transfer ordered by that court was of no force and effect. The statute of limitations must, under this theory, have expired in 1954. We have held in a similar case that this provision of the Retailers' Occupation Tax Act is not jurisdictional but relates solely to venue. (Merit Chevrolet, Inc. v. Department of Revenue, Ill., 210 N.E.2d 470, adopted this day.) That case is determinative here. It was there conclusively established that if an action to review a determination of the Department of Revenue is instituted in any circuit court within the statutory time limit (35 days) as required by section 4 of the Administrative Review Act (Ill.Rev.Stat.1963, chap. 110, par. 267), and other jurisdictional requisites are met, that court has the power to transfer the cause to the court of proper venue. It is thus apparent that in the instant situation the circuit court of Cook County was competent to approve the statutory bond and order a transfer of this cause to the circuit court of Macon County, where it was later dismissed for want of prosecution. Since the present action was instituted within two years from the latter date, the statute of limitations had not yet run and the cause was properly cognizable by the court.

Defendant taxpayer next argues that the Department is estopped from contending that the taxpayer filed an administrative review action within the time required by statute inasmuch as the Director of Revenue certified to the circuit court of Macon County in 1962 that no such action had been filed. However, public policy ordinarily forbids the application of estoppel to the State where the public revenues are involved, (People v. Chas. Levy Circulating Co., 17 Ill.2d 168, 161 N.E.2d 112; People ex rel. Barrett v. Bradford, 372 Ill. 63, 22 N.E.2d 691, 155 A.L.R. 427) and no reason exists here to deter application of this rule.

The trial court added to its judgment interest at 5% from May 15, 1952, apparently pursuant to section 2 of the Interest Act (Ill.Rev.Stat.1963, chap. 74, par. 2). As last amended in 1891 that act provides: 'Creditors shall be allowed to receive at the rate of five (5) per centum per annum * * * on money withheld by an unreasonable and vexatious delay of payment.' Subsequent...