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In Re Application of County Treasurer

OPINION FILED SEPTEMBER 27, 1978.

IN RE APPLICATION OF COUNTY TREASURER. — (TREASURER OF COOK COUNTY, ASSESSOR-APPELLEE,

v.

CHICAGO TITLE & TRUST COMPANY, TRUSTEE, PETITIONER-APPELLANT.)



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

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 1, 1978.

On January 23, 1975, what is entitled as an Objection 1 protesting the 1967 assessment and tax of real estate belonging to the petitioner, was presented to the circuit court of Cook County by the State's Attorney. Upon the State's Attorney's recommendation, the court denied the Objection 1 protest. On January 20, 1977, petitioner filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) requesting that it be allowed to intervene and asking that the order of January 23, 1975, denying the Objection 1 be vacated. On April 18, 1977, the trial court denied the section 72 petition.

The property in question is owned in trust by petitioner for the benefit of the Society of the Divine Word, a religious order. The property was improved with a two-story brick building containing seven stores and 18 apartments. On December 20, 1966, a fire did enormous damage to the building. The building was uninhabitable and remained so until September 1, 1967. At the end of 1967 only part of the premises was reoccupied. The vacancies resulted in a gross income for 1967 of 88% less than that earned in the previous year. Petitioner realized a net loss of nearly $11,000.

In 1967 petitioner, through counsel, appeared before the assessor to present evidence as to the fire and condition of the building. Petitioner was informed that an assessor's employee would examine the premises and that, if the facts were verified, the assessment for the improvements would be cancelled. The subject property was again assessed for 1967, and an assessor's employee informed petitioner that, through a mistake, the assessment had not been cancelled. The employee suggested that petitioner file a complaint with the Board of Tax Appeals of Cook County to correct the assessment. Petitioner filed such a complaint, but the Board of Appeals did not correct the assessment. As a result, petitioner's 1967 tax bill was not reduced.

After petitioner received the tax bill, the assessor's office agreed to include the property in its 1967 Objection 1. The Objection 1 was presented to the court seven years later. The trial court dismissed the Objection 1 protest on the subject premises because petitioner had filed a complaint with the Board of Appeals. After notification that the Objection 1 protest had been denied, the petitioner requested the State's Attorney to appeal from the dismissal order, but the State's Attorney refused. Almost two years after the denial of the Objection 1, petitioner sought leave to intervene and to vacate the order dismissing the objection. Petitioner appeals from the trial court's denial of that petition.

Petitioner contends that because its assessment and tax were included in the subject of the Objection 1 filed by the assessor, it had the right to intervene in the proceeding. Petitioner also contends that it was denied its constitutional right to equal protection of the law when the trial court denied the Objection 1 as to its property on the ground that petitioner's filing a complaint with the Board of Appeals precluded any action by the trial court.

In order to consider the issues, it is essential that the Objection 1 procedure be explained. In First Lien Co. v. Markle (1964), 31 Ill.2d 431, 202 N.E.2d 26, our supreme court gave a succinct exposition of that procedure. At pages 434-35, the court stated:

"An `Objection 1' is a device used in Cook County tax collection machinery. It is an objection filed by the assessor to the application of the county treasurer for judgment and sale against lots and lands which are delinquent in the payment of taxes, and number `1' is reserved by the clerk of the county court each year for such objection. It is divided into subnumbers which annually number about two thousand. A parcel number is assigned by the assessor for each lot or unit of land to which an `Objection 1' is filed. Such objections are not filed all at one time but may be filed on several occasions and over a period of time when the assessor determines that he has made an error in his assessment — such as assessing a vacant lot for an improvement when in fact there is no improvement, assessing a lot as improved when in fact the improvement had been destroyed by fire, etc. When an `Objection 1' is filed with the clerk of the county court, it is posted on the county treasurer's warrant books and upon the Tax Judgment Sale Redemption and Forfeiture records. The posting of an `Objection 1' is made regardless of whether the tax has been paid or not. It is the only objection in Cook County which the clerks of the treasurer's office will post without payment of the tax in full, as a condition precedent to the posting. If an `Objection 1' is posted in either the treasurer's warrant book or in the Tax Judgment Sale Redemption and Forfeiture record before the date of the sale of the parcel against which it is posted, the parcel will not be offered for sale by the deputy treasurer conducting the sale. It is used as an accommodation to the property owners where real estate has been overassessed through errors in the assessor's office."

Thus an Objection 1 procedure is a device or an accommodation which is unique to Cook County and which is unsupported by the statute. As we shall see below, it is not intended as a substitute for the statutorily mandated challenge of an excessive tax.

The proper method for challenging a tax as being excessive is set out in the Revenue Act. (Ill. Rev. Stat. 1967, ch. 120, par. 592.1 et seq., pars. 675 and 716.) The taxpayer must first exhaust his administrative remedies by filing a complaint with the Board of Appeals. If that complaint is denied, the taxpayer must pay the tax under protest and file an objection at the collector's annual application for judgment. (People ex rel. Korzen v. Fulton Market Cold Storage Co. (1976), 62 Ill.2d 443, 343 N.E.2d 450, cert. denied (1976), 429 U.S. 833, 50 L.Ed.2d 98, 97 S.Ct. 97.) In such an adversary proceeding, the taxpayer challenges the assessment and tax on his property.

In the present case, petitioner took no further action after the Board of Appeals denied its complaint. Instead, petitioner elected to rely upon the granting of the Objection 1 protest pertaining to its property which had been filed by the assessor. In First Lien Co. v. Markle, the court used pertinent language at page 439:

"It should also be noted that defendants had no right to rely on the assessor filing a so-called `Objection I'. The Cook County `Objection I' practice is unauthorized by statute and constitutes a convenient administrative device for the correction of the assessor's errors without cost or hardship to the individual taxpayer. Its customary use cannot excuse a taxpayer from protecting his rights according to statutory procedures, and certainly no such objection can serve to invalidate a judgment after its rendition."

• 1 We believe the trial court correctly denied petitioner's belated request to intervene in the Objection 1 procedure. Through its inaction petitioner waived its statutory right to challenge the assessment and tax in an adversary proceeding. In First Lien Co. the court specifically stated that a taxpayer may not rely upon an Objection 1 procedure for correction of alleged errors. Petitioner does not challenge the adequacy of its statutory remedy, but merely asserts an additional right and even suggests that it was entitled to vigorous representation of its interests by the State's Attorney at the Objection 1 hearing. We believe, rather, that the petitioner was incorrect in foregoing its clear statutory remedy in lieu of the "so-called Objection 1," a device not authorized by statute. The trial court ...


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