Korzen v. Commercial Stamping & Forging, Inc.

• Decision Date: 04 October 1976
• Docket Number: No. 62612,62612
• Citation: 42 Ill.App.3d 895,1 Ill.Dec. 562,356 N.E.2d 844
• Parties: , 1 Ill.Dec. 562 Application of Bernard J. Korzen as County Treasurer and Ex-Officio County Collector of Cook County for Judgment and Order of Sale against Lands and Lots upon which the General Taxes Remain Due and Unpaid for the Year 1969 and for Judgment Fixing the Correct Amount of any Tax Paid under Protest for the Year 1969. Bernard J. KORZEN, County Treasurer and Ex-Officio County Collector, Applicant- Appellee, v. COMMERCIAL STAMPING & FORGING, INC., Objector-Appellant.
• Court: United States Appellate Court of Illinois

Page 844

356 N.E.2d 844

42 Ill.App.3d 895, 1 Ill.Dec. 562

Application of Bernard J. Korzen as County Treasurer and Ex-Officio County Collector of Cook County for Judgment and Order of Sale against Lands and Lots upon which the General Taxes Remain Due and Unpaid for the Year 1969 and for Judgment Fixing the Correct Amount of any Tax Paid under Protest for the Year 1969 Bernard J. KORZEN, County Treasurer and Ex-Officio County Collector, Applicant- Appellee, v. COMMERCIAL STAMPING & FORGING, INC., Objector-Appellant.

No. 62612.

Appellate Court of Illinois, First District, First Division.

Oct. 4, 1976.

Marshall I. McMahon, Chicago, for objector-appellant.

Bernard Carey, State's Atty. of Cook County (Sheldon Gardner, Deputy State's Atty., and Dorothy Kirie, Asst. State's Atty., of counsel), for applicant-appellee.

O'CONNOR, Justice.

Commercial Stamping & Forging, Inc. (Objector) appeals from the dismissal of its objection to the county collector's application for judgment for 1969 real estate taxes and from the judgment for the full amount of those taxes. The facts are stipulated:

In 1968, Inland Steel Company was the owner of the real estate located at 6558 South Menard Street, Chicago, Illinois. In that year it obtained from the assessor of Cook County a downward revision in the assessed valuation from $891,719 to $349,963. In march, 1969, the property was sold to the objector, Commercial Stamping & Forging, Inc. In 1969, a non-quadrennial year, the assessed value was increased to $957,196. No actual notice of said increase was given to or received by either the objector or Inland Steel. Additionally, no notice of the increase in the assessed value was ever published by the assessor. The objector's 1969 tax bill was $68,534.54, payable in two installments of $34,267.27 each. On May 1, 1970, it paid $27,500 of its first installment under protest. The balance of the outstanding tax and interest accumulated thereon was paid under protest just prior to the objector's resting its case at the trial of the objection. The paid tax bills and protest letters were admitted into evidence.

At the conclusion of the objector's case in chief, the county collector moved to dismiss the objection for failure of the objector to comply with the prepayment requirement of sections 194 and 235 of the Revenue Act of 1939, as amended (Ill.Rev.Stat.1969, ch. 120, pars. 675 and 716), in that it did not pay all of the tax installments due prior to the filing of the objection.

The trial court, in a memorandum opinion filed May 12, 1975, held that Inland Steel was entitled to notice of a non-quadrennial revision of the assessment and that the 1969 increase in assessed value was illegal because (1) no actual notice of said increase was given by the assessor to anyone and (2) there was no publication of the change of the assessment in the non-quadrennial year of 1969. The court further held the language of sections 194 and 235, requiring the payment of all tax installments due to be made prior to the filing of the objection, was mandatory and that the objector's failure so to pay required the dismissal of the objection.

Objector's first contention is that the prepayment requirement of sections 194 and 235 of the Revenue Act of 1939, as amended (Ill.Rev.Stat.1969, ch. 120, pars. 675 and 716), is directory and not mandatory. These sections provide in pertinent part as follows:

'If any person desires to object pursuant to Section 235 of this Act to all or any part of a real property tax for any year, for any reason other than that the real estate is not subject to taxation, he Shall first pay all of the tax installments due, * * *.' (§ 194; emphasis added.)

'* * * Provided, that no person shall be permitted to offer any such defense unless such writing specifying the particular cause of objection shall be accompanied by an official original or duplicate tax collector's receipt, showing that all taxes to which objection is made have been paid under protest pursuant to the provisions of section 194 of this Act; * * *.' (§ 235.)

The Supreme Court of Illinois has repeatedly stated that the prepayment requirement of these sections is mandatory. (People ex rel. Wisdom v. Chicago, Burlington & Quincy R.R. Co. (1965), 32 Ill.2d 434, 436, 206 N.E.2d 702, 704; People ex rel Anderson v. Chicago & Eastern Illinois R.R. Co. (1948), 399 Ill. 520, 526, 78 N.E.2d 265, 268; People ex rel. Darr v. Alton R.R. Co. (1942), 380 Ill. 380, 384, 43 N.E.2d 964, 966; People ex rel. Sweitzer v. Orrington Co. (1935), 360 Ill. 289, 293, 195 N.E. 642, 644.)

In People ex rel. Darr v. Alton R.R. Co. (1942), 380 Ill. 380, 384, 43 N.E.2d 964, 966, the court construed the prepayment provision at issue here:

'The provisions of section 235 indicate that the legislature intended that no one should be permitted to object to a tax unless he had previously paid under protest at least seventy-five per cent ¹ of the tax to which objection was made and that proof of such facts had to accompany the filing of the objection. This provision is mandatory and is a condition that a tax objector must meet before making objections, * * *.'

This court has on two recent occasions also so held. (In re Application of County Treasurer (Abst.1972), 5 Ill.App.3d 694, 283 N.E.2d 905; In re Application of County Collector (1974), 23 Ill.App.3d 923, 320 N.E.2d 456.)

The only exception to the prepayment requirement of section 235, as stated in section 194, is where the objection is that the real estate assessed is not subject to taxation. These statutes do not provide for an exception where, as here, the taxpayer's objection is that the tax was unauthorized by law because it was based on an assessment in a non-quadrennial year of which it received no notice.

Hoffmann v. Stuckslager (1971), 48 Ill.2d 262, 269 N.E.2d 501; John Allan Co. v. Sesser Concrete Products Co. (1969), 114 Ill.App.2d 186, 252 N.E.2d 361, and Zeve v. Levy (1967), 37 Ill.2d 404, 226 N.E.2d 620, relied on by objector, concern different and unrelated sections of the Revenue Act and are inapplicable.

The payment by objector of the balance of the taxes after the filing of the objection but before the entry of judgment did not fulfill the mandatory condition of sections 194 and 235. Its objection was properly dismissed.

Objector contends that if sections 194 and 235 are mandatory in this instance, they effectively deny it due process of law. Objector maintains that the assessor's failure, in violation of section 97 of the Revenue Act of 1939, as amended (Ill.Rev.Stat.1969, ch. 120, par. 578), to notify it of the increased assessed value of its property in a non-quadrennial year deprived it of its opportunity to seek relief in a hearing before the assessor and the Board of Appeals. We note, parenthetically, that objector did not raise the failure of the assessor to give notice until nine months after the filing of its original objection; but, even if it had been raised at the outset, it is without merit.

In Dietman v. Hunter (1955), 5 Ill.2d 486, 489, 126 N.E.2d 22, 23, the court stated the requirements of due process in tax assessment procedures:

'Due process requires that the property owner be given notice and an opportunity to be heard upon the valuation of his property at some point in the taxing process before his liability to pay the tax becomes conclusively established. * * * (T)he taxpayer is not entitled to notice and an opportunity to be heard at each stage, or at any particular stage, of the assessment procedure. So it has been held that if the taxpayer may be heard upon the question of valuation in an action brought to collect the tax, Weyerhaueser v. State of Minnesota, 176 U.S. 550, 555, 20 S.Ct. 485, 44 L.Ed. 583, or in an action to restrain collection of the tax, Security Trust and...