APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
S. SARNOW, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
These consolidated appeals involve retailers' occupation tax claims. In No. 40901 appellant William Pape appeals from a judgment of the Cook County circuit court affirming on administrative review a deficiency assessment against him by the Department of Revenue of $161,317.21 for retailers' occupation tax for the period of January 1, 1962, through December 31, 1964. Case No. 41052 is an appeal by the same taxpayer from a judgment obtained by the Department against him in the same court in the amount of $23,935.65 representing retailers' occupation tax for the period of January 1 through April 30, 1965.
Basically, the dispute here revolves about ownership of a retail liquor business and liability for the taxes resulting from its operation. Section 2a of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1967, chap. 120, par. 441a) requires retailers of tangible personal property to secure from the Department of Revenue a certificate of registration. Applications therefor are made on departmental forms signed and verified by the applicant and stating his name, his residence address and principal business address, the addresses of all other places of business and such other information as the Department may reasonably require. If approved by the Department, a certificate of registration is then issued to the applicant, and such certificate must thereafter be conspicuously displayed at his principal place of business. The subsequent monthly tax return forms are furnished by the Department and bear the registration number initially assigned to the applicant.
The factual situation here is confusing. In 1961 there were applications for registration filed by "William Pape" on May 20, June 7, and November 14, pursuant to section 2a. All three applications listed the business address as 1423 W. 55th Street, LaGrange, but the first of these showed the residence address of the owner as 1610 W. 18th Street, Chicago, the second gave 5083 W. Jackson, Chicago, as the residence, and the third again showed 1610 W. 18th Street. The first listed the name of the business as "Countryside Food and Beverage", showed in the space for the owner's name "William Pape", was signed "William Pape" as applicant, and the word "Owner" is written under that name; the signature purports to be witnessed. The June 7 application gives the business name as "Countryside Foremost Liquors", the business address is the same, the owner's name is listed as William Pape and it bears the name William Pape as applicant although apparently signed by a Frank Struck as manager. The November application again shows the same business name, address, ownership and signature as the May 20 application and is apparently witnessed by Howard L. Treshansky who is said to be a lawyer and who supposedly signed the printed statement on the form certifying his acquaintanceship with the applicant and his knowledge that applicant was engaged in the described business at the stated address. Treshansky was not called as a witness. Appellant denies any knowledge of any of these applications.
Thereafter, monthly tax returns were filed in 1962, 1963 and 1964 and the manner in which they were signed does nothing to lessen the confusion. All of the returns were filed under the registration number originally assigned to William Pape as owner of Countryside Food and Beverage, and each return either certified that no change in ownership of the business had occurred or left that question unanswered. The returns for January through October, 1962, were signed "William Pape", and on the line below the signature a query as to Pape's title was answered "Owner". The November, 1962, return was signed "William Pape" and his title listed as "secretary"; the December, 1962, return was signed "Frank Pintozzi", and his title given as "secretary". The January, 1963, return bore the signature "Frank Pintozzi", and the title "president", as did those for February, March, April, May, June (on this one Pintozzi is also described as "owner"), July, August, September, October, November and December. In January and February, 1964, John R. Meehan (appellant's uncle) signs the return as "vice-president"; Pintozzi signs again in March as president, and in April and May the returns are again signed "William Pape" but with no designation of his status. The June return is signed "William Pape" and his title as shown as "Pres."; the July, August, and September returns are signed "John R. Meehan" with the title "President"; the October return appears to be unsigned, and the November and December returns are also signed "John R. Meehan" and his title is "President".
Applications were made in 1963 and 1964 for liquor licenses on behalf of "Countryside Food and Beverage, Inc." The 1963 form was signed by Lucille Pintozzi, president, showing "11-1-60" as the date of incorporation and the address of the business as "1423 West 55th, LaGrange, Illinois", and various other business locations including "1724 South Ashland". Officers and directors were shown as Lucille Pintozzi, president, Howard Treshansky, vice-president, Lucille Salerno, secretary, and Tom Pape (appellant's brother), treasurer. Sole stockholders shown were Frank Pintozzi and Rocco Pintozzi of "1724 Ashland, Chicago, Ill." The 1964 application was signed by Frank Pintozzi as president, showed "11-1-61" as the date of incorporation, listed the officers and directors as Frank Pintozzi, president, (1724 So. Ashland), Lucille Pintozzi, secretary, (5083 W. Jackson), and Lucille Salerno, vice-president (5083 W. Jackson), and listed Frank and Rocco Pintozzi as sole stockholders.
Appellant denies having any interest in Countryside Food and Beverage, Inc., other than working for that corporation several nights a week at the Ashland Avenue store as a stock man and liquor clerk, and denies preparing, signing or filing the tax returns. He testified Frank and Rocco Pintozzi are his employers at the Ashland store. Appellant is employed during the day as a street department foreman for the city of Chicago, and testified he presently lived at 6306 N. Lennox Avenue. In case No. 40901 (1966) appellant testified he lived at 5083 W. Jackson, Chicago, during 1962, 1963, and 1964, and his personal income tax returns list that address as his residence. In case No. 41052 (1967), however, he testified he last lived at the Jackson Street address "nine, ten years ago". He introduced his personal income tax returns showing payment to him from Countryside in 1962 of $3999 as wages, $3381 in 1963 and $2964 in 1964. These tax returns appear to have been prepared by the same accountants who prepared Countryside's. Appellant's brother managed the liquor store on West 55th and it is on the door of this building that the registration certificate with appellant's name on it appears. Appellant testified he was in this building once. The Ashland Avenue address and the W. 18th Street address describe the same building.
In March, 1965, the Department instigated a field audit of the business at 1423 West 55th Street. Investigators for the Department were told, when they went there, identified themselves, inquired for the owner and asked to inspect the books and records, that the owner "was not around" and no books and records were available. They thereafter secured copies of the corporate income tax returns of "Countryside Food & Beverage, Inc., 1421 W. 55th St." for portions of the periods involved, determined the monthly average of gross sales and, based thereon, prepared corrected returns and determined the amount of the deficiency assessment.
Appellant contends the deficiency assessment for a portion of the early part of 1962 is barred by the statute of limitations (Ill. Rev. Stat. 1967, chap. 120, par. 444), but the Department urges that a waiver of the statute signed:
"Name of Registrant No. 3 Countryside Food and Beverage, Inc. By John R. Meehan Title President Address 1423 W. 55th Street City LaGrange Highlands, Illinois"
renders the assessment permissible.
The above reference to "No. 3 Countryside Food and Beverage, Inc.", appears again during the departmental hearing when counsel for appellant requested a continuance in order that he might secure the records of this corporation from its auditor. The requested continuance was denied on the ground that appellant had been afforded ample time to prepare for the hearing and knew the records had been sought by the investigators months earlier.
Present counsel for appellant (who are not the same as trial counsel) contend the judgment in No. 40901 cannot stand because the assessment is not supported by the evidence, that part of the deficiency is barred by the statute of limitations and because due process was denied him when the departmental hearing officer refused the continuance. In essence the Department's position is that it established a prima facie case under the statute (Ill. Rev. Stat. 1967, chap. 120, par. 443) which the taxpayer failed to rebut, and that if appellant had no interest in Countryside and had not signed the returns, it was incumbent upon him to call as witnesses those persons, such as Treshansky, who presumably could have corroborated him. In our view of the case, however, it is unnecessary to reach these questions for we affirm on other grounds.
The deficiency assessments by the Department were protested by appellant as provided by statute (Retailers' Occupation Tax Act, Ill. Rev. Stat. 1967, chap. 120, par. 443), and the hearing thereafter held by the Department resulted in final assessment in accordance with the deficiencies as originally assessed. Appellant thereafter (May 24, 1966) filed his complaint in the circuit court seeking review under the Administrative Review Act (Ill. Rev. Stat. 1967, chap. 110, par. 264 et seq.) and summons that day issued thereon. Section 12 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1967, chap. 120, par. 451) specifically provides "Any suit under the `Administrative Review Act' to review a final assessment * * * issued by the Department under this Act shall be dismissed on motion of the Department or by the court on its own motion, unless the person filing such suit files, with the court, within 20 days after the filing of the complaint and the issuance of the summons in the suit, a bond with good and sufficient surety * * * or unless the court, in lieu of said bond, shall enter an order imposing a lien upon the plaintiff's property as hereinafter provided." No apparent attempt was made by appellant to ...