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Mitchell v. Mahin

OPINION FILED APRIL 17, 1972.

TERRANCE R. MITCHELL ET AL., APPELLEES,

v.

GEORGE E. MAHIN, DIRECTOR, DEPARTMENT OF REVENUE, APPELLANT.



APPEAL from the Circuit court of Cook County; the Hon. THOMAS C. DONOVAN, Judge, presiding. MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 25, 1972.

Defendant, George E. Mahin, Director of Revenue, appeals from the judgment of the circuit court of Cook County entered in plaintiffs' action for declaratory judgment. The effect of the judgment from which defendant appeals is to make applicable to the assets involved in this case the August 1, 1969, valuation date which this court, in Thorpe v. Mahin, 43 Ill.2d 36, applied to the computation of gains or losses realized from the sale of capital assets.

In their complaint for declaratory judgment plaintiffs allege that the defendant in the "Instructions for Form IL-1040, 1969" and in Regulation 202-2(d)(1) seeks to restrict the August 1, 1969, valuation limitation to capital assets as defined in section 1221 of the Internal Revenue Code of 1954 (26 U.S.C. sec. 1221) and pray that if the Illinois Income Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 1-101, et seq.) is construed so as to impose a tax "upon the accumulation of or the appreciation in value of property occurring before August 1, 1969," that the Act, in that respect, be held unconstitutional.

The plaintiffs are five taxpayers, and the record contains a stipulation of the following facts.

On November 21, 1969, plaintiff John A. Peterson sold his farm for $65,000, payable $5,000 on November 21, 1969, $10,000 on March 1, 1970, and the balance in 10 equal annual installments. Throughout his period of ownership Peterson had engaged in the occupation of farming this farm. On July 31, 1969, the farm had a fair market value of $63,927.50.

On October 30, 1969, Frederick W. Wendnagel sold a one-fourth interest in improved commercial rental real estate for a net consideration of $123,497.50. He acquired this interest on September 1, 1947, and on October 30, 1969, his remaining undepreciated cost for the property was $18,487.18. On July 31, 1969, the fair market value of Wendnagel's interest in the building was $122,317.18.

Plaintiff Terrance R. Mitchell voluntarily participated in the Savings and Profit Sharing Pension Fund of Sears, Roebuck and Co. employees from June 1, 1960, to July 7, 1969, when he resigned his position and his participation in the fund ceased. On August 15, 1969, he received a lump sum distribution from the Fund of 134 shares of the stock of Sears, Roebuck and Co. and cash in the amount of $1,850.31. The shares of stock were purchased by the Fund for a total cost of $6,793.80, had a market value of $8,710 on July 31, 1969, and at the time of distribution had a market value of $9,061.75. The total of the contributions made by Mitchell to the Fund, and not withdrawn prior to August 15, 1969, was $3,805.75.

Plaintiff Asalee Laborn also participated in the Sears profit-sharing and pension fund from May 15, 1958, until her termination as a Sears employee on September 15, 1969. On September 24, 1969, she received a lump sum distribution having a value of $9,874.84, which consisted of 110 shares of Sears stock having a value of $7,755 and cash in the amount of $2,119.84. The shares of stock were purchased by the Fund at a total cost of $4,973.10 and on July 31, 1969, had a fair market value of $7,150 and on September 24, 1969, had a fair market value of $7,755. The total of the contributions by Mrs. Laborn to the Fund and not withdrawn prior to September 24, 1969, was $2,514.

Plaintiff Ernest J. Nassos was a member of the law firm of McDermott, Will and Emery from January 1, 1966, to April 30, 1969, during which time he participated in the firm's profit sharing plan. He contributed $1,051.34 for 1966, $1,110 for 1967, $1,140 for 1968, and $210 for the part of the year ending April 30, 1969 — a total contribution to the plan of $3,511.34. After August 1, 1969, he received $3,769.01 from the plan. The value of Nassos' interest in the plan on July 31, 1969, was $3,333.62.

It is further stipulated that all five plaintiffs are residents of Illinois and each of them received income during the period August 1 through December 31, 1969, which was taxable under the Illinois Income Tax Act. The parties, in the pleadings and briefs, have treated the Peterson and Wendnagel properties as assets which fall within the scope of section 1221, the Mitchell and Laborn transactions as being within the scope of section 402, and the Nassos matter as subject to sections 72 and 402 of the Internal Revenue Code of 1954. Without passing upon the correctness of the positions taken, for purposes of this opinion, we adopt them.

The defendant Director argues that we should overrule that portion of Thorpe which found a legislative intent to establish an August 1, 1969, valuation limitation, and the major portion of his brief is devoted to this contention. He argues that the issue of legislative intent was not presented in Thorpe; that the language of the Act shows that no such valuation limitation was intended; that other legislative proposals and the Leland Committee Report all failed to provide any express valuation limitation; that the record of the hearings before the Senate Public Finance Committee fails to indicate such an intent; that a proposed amendment to the Act containing a valuation limitation was defeated; that the valuation limitation leads to "totally unrealistic economic results"; and that the valuation limitation is unfair.

The defendant's argument obviously presumes that in Thorpe we felt compelled to find a legislative intent to establish an August 1, 1969, valuation limitation in order to avoid constitutional problems which might stem from making the income tax applicable to appreciations in value occurring before August 1, 1969. Thorpe was decided without reaching the question of whether retroactive application rendered the Act unconstitutional, and the language to which defendant refers is clearly a discussion of the divergent and conflicting decisions on the subject and not a holding of this court with respect to the issue.

Upon consideration of the argument that in Thorpe we misconstrued the legislative intent, we conclude that nothing is before us in this case of which we were unaware at the time Thorpe was decided. Furthermore, after this court has construed a statute, that construction becomes, in effect, a part of the statute and any change in interpretation can be effected by the General Assembly if it desires so to do. Susemiehl v. Red River Lumber Co., 376 Ill. 138; Knierim v. Izzo, 22 Ill.2d 73, 80; Schwarz v. Schwarz, 27 Ill.2d 140, 150.

The General Assembly has seen fit to express itself explicitly on the question by amending section 203 of the Income Tax Act in which "base income" is defined (Ill. Rev. Stat. 1971, ch. 120, par. 2-203), and, with exceptions not here relevant, has enacted the August 1, 1969, valuation limitation enunciated in Thorpe. "While it is ordinarily assumed that an amendment is intended to change the law as it formerly existed, that assumption is not controlling. (See Scribner v. Sachs, 18 Ill.2d 400, 411.) To ascribe such a purpose to all amendatory legislation would make it hazardous or impossible to clarify existing ambiguities so that future misinterpretation could be avoided or the recurrence of an erroneous judicial interpretation prevented." (Roth v. Northern Assurance Co. 32 Ill.2d 40, 50.) For the reasons stated in Thorpe, and for the further reason that the General Assembly by affirmative action has indicated its approval of our decision, we will not now hold that the Illinois Income Tax Act as originally enacted did not contemplate an August 1, 1969, valuation limitation.

Defendant argues that if the General Assembly "intended to establish an August 1, 1969, valuation limitation, its application should be limited to the determination of gain or loss from sales and exchanges of capital assets." This contention is based on the fact that Thorpe dealt only with capital assets and capital gains and losses. The decision in Thorpe was restricted to capital assets for the obvious reason that the issues, as formulated, involved capital assets and did not purport to consider every type of property with respect to which the issue of a valuation date might arise.

Defendant contends next that if the scope of the August 1, 1969, valuation limitation is extended to "all property" it will result in a "staggering revenue loss" and an "administrative nightmare" for the State and its taxpayers. It argues further that where "an agency charged with the administration of a legislative enactment has construed that statute contemporaneously with the enactment thereof, that construction is entitled to great weight when determining legislative intent." Obviously, the defendant Director, not without precedent in the taxation of income, promulgated regulations designed to produce the maximum in revenue, and toward that end construed Thorpe as narrowly as possible in order to render the August 1, 1969, valuation date inapplicable to any capital assets except those falling within section 1221 of the Internal Revenue Code. The Director's interpretation notwithstanding, we hold the rationale of Thorpe to be applicable to the types of assets involved in this action. Although ...


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