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Peo. Ex Rel. Oak Sup & Furniture v. Dept. of Rev

OCTOBER 17, 1974.

THE PEOPLE EX REL. OAK SUPPLY & FURNITURE CO., PLAINTIFF-APPELLEE,

v.

THE DEPARTMENT OF REVENUE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This case involves the interpretation of section 10 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 449). Pursuant to the statute, the plaintiff corporate taxpayer under investigation for alleged non-compliance with the Retailers' Occupation Tax Act requested the Illinois Department of Revenue hearing officer to issue subpoenas duces tecum to two named individuals, but the hearing officer refused to do so. The taxpayer corporation brought an action for a writ of mandamus in the circuit court of Cook County to compel the issuance of the subpoenas. The circuit court interpreted the statute in favor of the taxpayer and issued the writ. The Department of Revenue appeals from this order, claiming that the trial court erred in its interpretation of the statute.

We affirm.

The pleadings reveal the following facts. On June 28, 1972, the Department of Revenue of the State of Illinois issued a notice of tax liability to the plaintiff corporate taxpayer, Oak Supply and Furniture Co., for alleged revenue deficiencies under the Retailers' Occupation Tax Act, the Use Tax Act, and the Service Tax Act. The taxpayer (Oak) contested its liability and the matter was set for a hearing before the Department's hearing officer.

Prior to the hearing, Oak sent the following letter to the hearing officer:

"This letter will serve as a request that you issue Subpoenae to Lennard Jelinek and Sheldon Copeland at Oak Supply and Furniture Co., 723 West Jackson Boulevard, Chicago Illinois, requesting that they appear for the hearing in this matter on April 10, 1973, at 11:00 A.M.; and that they bring with them at that time the following: [Oak's business records] * * *."

Such a request for subpoenas is authorized by section 10 of the Retailer's Occupation Tax Act, which provides that:

"The Department or any officer or employee of the Department designated, in writing, by the Director thereof shall at its or his own instance, or on the written request of any other party to the proceeding, issue subpoenas requiring the attendance of and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records or memoranda. * * *." (Emphasis added.)

The hearing officer refused to issue the subpoenas because the two named individuals were employees of Oak and the officer felt a subpoena would have been unnecessary for Oak to produce its own records, if it wished to do so in its own defense. Furthermore, section 9 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 448) provides automatic transactional immunity from criminal prosecution to a natural person who testified at a Department of Revenue investigation or hearing pursuant to subpoena. The Department alleged that had it issued the two subpoenas as requested, section 9 immunity would have automatically attached to Jelinek and Copeland, and the State would not have been able to pursue the criminal charges then pending against the two gentlemen under section 13 of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 452), pertaining to the filing and signing of the allegedly fraudulent returns upon which the corporation's tax deficiency was based. Subsequent to the circuit court's ruling and prior to the oral arguments in this case, the criminal charges against Jelinek and Copeland reached disposition.

Oak's position is that section 10's specific language makes the issuance of subpoenas by the Department of Revenue a purely ministerial function to be exercised without resort to discretion. "The Department * * * shall * * * on the written request of any other party to the proceeding, issue subpoenas * * *." Further, Oak stresses that the criminal charges which prompted the Department's original reluctance to issue the subpoenas are now moot, leaving only Oak's action for a writ of mandamus for this court's determination, without need to consider the implications of section 9's automatic immunity provisions.

The Department of Revenue's contention on appeal is that such a narrow construction of section 10 is contrary to the legislative intent and purpose because it amounts to an abuse of the subpoena power and effectively nullifies the criminal provisions of section 13. It is argued that the legislature never intended that section 10 coupled with section 9's automatic immunity provision would enable a corporate taxpayer suspected of having filed false Retailers' Occupation Tax returns to shield its employees from personal criminal liability merely by asking the Department of Revenue's hearing officer to issue subpoenas to the allegedly culpable parties.

The Department submits instead that section 10 should be read as compelling the issuance of subpoenas at the request of a party in all cases except where that party can voluntarily produce the persons or documents requested. It is alleged that the two named individuals were obligated, by the nature of their relationships with the corporation, to testify and produce records on behalf of the corporation. The Department concludes that since Oak can voluntarily produce Jelinek, Copeland, and the records, Oak does not have a legitimate need for the requested subpoenas.

• 1-4 The Retailers' Occupation Tax Act must be read as a whole, notwithstanding Oak's contention that we should not consider the now-moot criminal immunity implications raised by section 9. Reading sections 9 and 10 together, we agree with the State's argument that these statutes can bring about bizarre results that may subvert the expected course of criminal prosecution of those persons accused of filing fraudulent Retailers' Occupation Tax returns, but we hold, for the reasons expressed herein, that the statutes require such a construction. It is for the courts to construe and interpret statutes that are vague or ambiguous so that the legislative intent is given its proper effect, not to give different meanings to clearly written statutes which reflect the content intended by the General Assembly. A court cannot "usurp the province of the legislature in the making of laws nor ignore the plain language of the statute. The making of laws lies in the province of the legislature. A court has no right to say that the legislature did not mean what in plain language it said," (Fowler v. Johnston City & Big Muddy Coal and Mining Co. (1920), 292 Ill. 440, 452) and must give effect to the legislature's intention regardless of the consequences. 34 I.L.P. Statutes § 116 (1958); Louisville & N.R.R. Co. v. Industrial Board (1917), 282 Ill. 136, 140, 118 N.E. 483.

• 5 Accordingly, we find that section 10 of the Retailers' Occupation Tax Act compels the Department of Revenue to issue subpoenas upon the written request of any party to its proceedings, notwithstanding that certain culpable individuals may escape criminal liability due to the operation of section 9. We base our decision upon the language of the statute, the ...


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