APPEAL from the Circuit Court of Sangamon County; the Hon.
HARVEY BEAM, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Can a State revenue auditor settle a tax liability of a taxpayer and thereby preclude subsequent criminal prosecution?
The State appeals the trial court's dismissal of indictments handed down against defendants Paul Thompson and Target Petroleum, Inc. The indictments charged 11 counts of knowingly making a false motor fuel tax return (Ill. Rev. Stat. 1979, ch. 120, par. 431(5)), and 8 counts of knowingly filing a fraudulent retailers' occupational tax return (Ill. Rev. Stat. 1979, ch. 120, par. 452). The trial court dismissed the indictments following a hearing at which Paul Thompson was the only witness to testify.
The scenario giving rise to this action begins on or about September 20, 1977, when Paul Thompson, an officer of Target Petroleum, allegedly began filing false motor fuel and retailers' occupational tax returns. At some later date, which is not clear from the record, amended tax returns were filed indicating a tax deficiency in favor of the State. Paul Thompson then engaged in conversations with one Cloyd Hunt, an auditor for the Illinois Department of Revenue. While the legal effect of these conversations is the center of this dispute, the only evidence presented at the hearing on the motion to dismiss reflected that Thompson and Hunt discussed Thompson's tax liability. Hunt purportedly told Thompson that if he would reach an agreement to pay the taxes that were owing, it would "solve all the tax problems." Thompson stated that based upon Hunt's statements, he believed that all he had to do was make payments pursuant to the agreement to end the matter. He could not specifically recall discussions concerning criminal charges.
The discussions culminated in November of 1978 with the signing of two "taxpayer's payment proposals" by Paul Thompson and representatives of the Illinois Department of Revenue. Pursuant to the agreement, Thompson — as president of Target Petroleum — agreed to pay $206,309.96 in taxes.
The trial court found that by entering into the agreements and paying the entire tax liability, Thompson thought he was foreclosing any potential criminal prosecution. The court also found that during March of 1979, the Illinois Attorney General's office caused the indictments to be returned and that defendants had paid the amounts due under the agreements. Finally, the court concluded that the substantial satisfaction of the agreements operates as a full and complete bar to any criminal procedure. The trial court thus dismissed the indictments with prejudice.
The State now appeals, arguing that the agreements did not bar prosecution and, in any event, the trial court's conclusion was against the manifest weight of the evidence. The defendants apparently present an alternative ground for affirming, arguing that the prosecution violated rights to due process of law.
We hold that the auditor employed by the Illinois Department of Revenue did not have the authority to bind the State's Attorney and that defendants' due process rights have not been violated.
• 1 The State's Attorney is a constitutional officer. (Ill. Const. 1970, art. VI, § 19.) His office is part of the executive branch of State government and the powers exercised by that office are executive powers. (People v. Stinger (1974), 22 Ill. App.3d 371, 317 N.E.2d 340.) The statute says:
"5. The duty of each State's attorney shall be:
(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.
(2) To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, or to any school district or road district in his county; also, to prosecute all suits in his county against railroad or transportation companies, which may be prosecuted in the name of ...