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In Re Application of County Collector

NOVEMBER 4, 1974.

IN RE APPLICATION OF COUNTY COLLECTOR OF COOK COUNTY, FOR JUDGMENT AND ORDER OF SALE AGAINST CERTAIN REAL ESTATE — (DANIEL GOLDMAN, LAWRENCE FISCHER, AND M.I.G. CORPORATION, DEFENDANTS-APPELLANTS).


APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 26, 1974.

Applications were made by the county collector of Cook County (hereinafter "County") for judgments fixing the correct amount of real estate tax for the year 1970 which had been paid under protest by the defendants, Daniel Goldman and Lawrence Fischer, in one case and the M.I.G. Corporation in another case. These two cases were consolidated for purposes of appeal. The defendants (hereinafter "objectors"), Goldman and Fischer, filed Objection Number 4, and M.I.G. Corporation filed Objection Number 5. In both cases the court, sitting without a jury, found that the County's assessment of the value of the properties was so excessive that it constituted constructive fraud. However, the court also found in both cases that the objectors had only protested 6 percent of the tax at the time of payment and were therefore limited to a recovery of only 6 percent of the total, regardless of the amount of actual overassessment. The objectors appeal the portion of the final judgment which limits their recovery to 6 percent of all taxes paid.

• 1, 2 When a county makes an application to the circuit court to fix the correct amount of real estate taxes paid, the interested taxpayers in question may raise defenses or objections to the county's determination. However, section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 716) specifies that these objections may only be raised as to amounts which were paid under protest pursuant to the provisions of section 194 of the Revenue Act of 1939. (Ill. Rev. Stat. 1969, ch. 120, par. 675.) Proof of compliance with section 194, concerning payment of taxes under protest, is a mandatory prerequisite to entering an objection to the amount of real estate taxes in a section 235 proceeding. People ex rel. Darr v. Alton R.R. Co., 380 Ill. 380, 43 N.E.2d 964; People ex rel. Anderson v. Chicago & E.I.R.R. Co., 399 Ill. 520, 78 N.E.2d 265; People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill. 424, 19 N.E.2d 336.

Section 194 provides that if a person desires to object pursuant to section 235 to all or any part of his real property taxes he must pay the taxes due and accompany the payment "by a writing substantially in the following form:

Payment under protest. Vol. No. ____ Item No. ____ (as the same appear on the General Tax Bill).

Original amount of tax $ ____ Amount of payment $ ____ This payment shall be applied to the taxes of all taxing bodies ratably, subject to refund of ____% of the tax, which is objected to on the ground (here set forth ground of objection) and is, accordingly, made under protest." Ill. Rev. Stat. 1969, ch. 120, par. 675.

Both objectors contend that in the notices of protest they submitted they had protested the entire amount of the assessed value and not merely 6 percent as the lower court found. The objectors argue, therefore, they should have been entitled to a refund of the entire amount of overassessment and should not be limited to only six percent of the total. The sole issue in this case is whether the protest forms submitted by the objectors did effectively protest the entire amount of assessed value in accordance with section 194. The relevant wording of the protest forms of both of the objectors is identical and therefore we set forth only one of the forms below:

"PAYMENT OF 1970 REAL ESTATE TAXES UNDER PROTEST

Pursuant to Section 194 of the Revenue Act of 1939, as amended, payment is herewith made under protest of the amount indicated below on the 1970 general taxes extended against the real estate described in the schedule of Volume and property numbers of property cards for the year 1970 appearing below or attached hereto and made a part hereof.

This payment shall be applied to the taxes of all taxing bodies ratably subject to a refund of 6% of the entire tax which is objected to on the ground of the illegality of the multiplier in determining the equalized valuation and that the taxes of the various taxing bodies making up the 1970 assessment are excessive, illegal, fraudulent and void (expressed in terms of dollars on each $100.00 of full valuation) as follows:

County of Cook .............................................. $0.04 Forest Preserve District of Cook County ..................... 0.02 Sanitary District of Chicago ................................ 0.03 City of Chicago ............................................. 0.04 Board of Education of the City of Chicago ................... 0.04 Chicago Park District ....................................... 0.02

This payment is accordingly made under protest and subject to a refund as to illegal, excessive and fraudulent rates and assessed value."

The second paragraph of the objectors' protest form is set forth in a manner substantially similar to the format provided in section 194 heretofore quoted. The only amount protested in this paragraph is 6 percent of the entire tax objected to on the ground that the multiplier used by the County was illegal. The court below held that this was the only amount protested. The third paragraph, however, said "This payment is accordingly made under protest and subject to a refund as to illegal, excessive and fraudulent ...


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