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In Re Application of County Treasurer

OPINION FILED OCTOBER 22, 1976.

IN RE APPLICATION OF COUNTY TREASURER. — (THE PEOPLE EX REL. BERNARD KORZEN, COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, RELATOR-APPELLEE,

v.

GUARANTY BANK & TRUST COMPANY, TRUSTEE, OBJECTOR-APPELLANT.) — IN RE APPLICATION OF COUNTY TREASURER. — (THE PEOPLE EX REL. BERNARD KORZEN, COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, RELATOR-APPELLEE,

v.

WINTHROP TOWERS, OBJECTOR-APPELLANT.)



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

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Objectors appeal from orders dismissing their objections to plaintiff's application for judgment and order of sale against lands having unpaid real estate taxes for 1972. The cases have been consolidated for review by this court. They contend: (1) their payments of the corrected amount of tax shown on the Assessor's certificate of error satisfied the threshold requirement of payment of "all of the tax installments due" of section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 675); (2) the County is estopped from asserting objectors' non-payments; and (3) an order for illegally levied taxes violates the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.

The County, through its Treasurer and ex-officio collector (Collector), filed an application for judgment and order of sale against real estate for which taxes remained due for 1972 pursuant to section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 716).

Objector, Guaranty Bank and Trust Company, as trustee and owner of the Sherone Hotel in appeal No. 62267, filed amended objections to the Collector's application alleging the Assessor's 1972 quadrennial assessment value of $321,124 and the subsequent reduced assessment of $239,634 as shown by the Assessor's certificate of error No. 6528 violated section 20 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 501) because the assessments did not represent the fair cash value of the property. The objector further alleged payment under protest of $30,487.78, the full amount of taxes due based upon the corrected assessment. Receipts stamped by the Collector showing this payment and bearing the additonal notations "1972 C of E Parcel," "Paid under Protest," and "TR 8-27-73 6528" were incorporated into the objection.

Objector Winthrop Towers, as owner of a similar apartment building in appeal No. 62288, also objected to the Collector's application and alleged the Assessor's 1972 assessment of $969,590 fraudulently exceeded the fair cash value of the property. It further alleged that an appeal to the Board of Appeals in 1972 resulted in a "no change" order, but that in 1973 the Assessor reduced the assessed valuation by $34,500 and that it paid $119,045.44 under protest, the full amount due based upon the corrected assessment. Incorporated into its objection was a receipt stamped by the Collector showing this payment and bearing the additional notations "1972 C of E Parcel," and "TR 8-30-73 6813."

In response to both objections, the Collector filed motions to dismiss on the grounds that separate actions were pending between the parties based upon the Assessor's certificates of error No. 6813 and No. 6528, and that objectors failed to pay all taxes due as required by section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 675).

After a consolidated hearing on both motions, the trial court entered separate orders which dismissed the objections for failure to comply with section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 675), and entered judgment against the tracts for 1972 taxes in the amounts that had been paid.

OPINION

Objectors contend their payments of the corrected amounts of tax based upon the Assessor's certificates of error No. 6528 and No. 6813 satisfied the statutory prerequisite of payment of "all of the tax installments due" under section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 675). Section 194 provides, in pertinent part:

"* * * 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 * * *."

Section 235 in turn provides for objections to the Collector's application, but provides:

"* * * 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; * * *."

The sole issue before this court then is whether payment of an amount of taxes corrected by the County Assessor and Board of Appeals and accepted by the Collector constitutes payment of "all of the tax installments due" for section 194 of the Revenue Act of 1939 so that objections to any further allegedly illegal assessments can be heard by the court.

In the instant case, the trial court's orders were twofold. They first denied the objections for failing to prepay all taxes due as required by section 194, and then adjudged the amounts which objectors had paid as the correct amounts of the tax due. Thus, the orders are internally inconsistent and contradictory. On the one hand, objectors have failed to pay the amounts due and, on the other hand, they have correctly paid them. If the amounts which the Collector accepted and issued receipts for after the Assessor corrected his assessments and modified the tax bills represent the correct ...


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