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In Re Application of Aurand

OPINION FILED NOVEMBER 19, 1980.

IN RE APPLICATION OF DOUGLAS AURAND, WINNEBAGO COUNTY TREASURER. — (DOUGLAS AURAND ET AL., APPELLANTS,

v.

LAVERNE ANDERSON ET AL., APPELLEES.)



APPEAL from the Circuit Court of Winnebago County; the Hon. ALFORD R. PENNIMAN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the judgment of the trial court ordering refunds to taxpayers who made payment of their 1977 taxes under protest.

The background of the protests filed by some 2,000 taxpayers relative to about 3,600 parcels of real estate is as follows:

For the 1976 tax year the assessments turned in by the Winnebago township assessors were increased by the Winnebago County supervisor of assessments from the reported assessment level of 33 1/3% of fair cash value to 41.38%. This was in accordance with the board of review's interpretation of section 146 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 627) which the board of review believed required it to equal the 1974 level of assessments for 1976 and 1977. That statute reads in pertinent part as follows:

"With the ratio so ascertained and determined for each county, the Department shall then ascertain the amount to be added to or deducted from the aggregate reviewed assessment on property subject to local assessment jurisdiction, other than property assessed pursuant to Section 20e of this Act, in order to produce a ratio of assessed to 33-1/3% of the fair cash value equivalent to 100%; Provided, (1) if the amount so ascertained for 1975, 1976 and 1977 results in a reduction of the aggregate reviewed assessment from the aggregate equalized assessed valuations for such county existing for the 1974 assessment year, the Department shall ascertain the amount to be added to or deducted from such aggregate reviewed assessment for 1975 and subsequent assessment years in order to produce an aggregate equalized assessed value equivalent to the aggregate equalized assessed value which existed for the 1974 assessment year, except that additions, deletions, depletions and assessment of omitted property in 1975 and succeeding assessment years shall be excluded in making such computation; and

(2) If a county had a ratio of equalized assessed to fair cash value under 33-1/3% for the single assessment year of 1973, the Department shall allow a gradual transition period of 3 years to raise such ratio to 33-1/3% for 1975 and each of the following 2 years, the ratio of assessed to 33-1/3% of fair cash value used by the Department in ascertaining the amount to be added to or deducted from such aggregate reviewed assessment for 1975, and for each of the following 2 years, shall each year be increased in percentage points by 1/3 of the difference between 33-1/3% and the ratio for the assessment year of 1973. For the assessment year 1977 and subsequent assessment years the ratio of equalized assessed to full fair cash value in each county shall be in the ratio of 33-1/3% of fair cash value."

The county superintendent of assessments, upon receipt of the township assessors' tax returns, determined that in order to bring the 1976 aggregate assessed valuation for the county up to the 1974 assessment valuation it was necessary to assess beyond the 33 1/3% of the actual fair value and he added a multiplier factor which raised the actual assessment of real estate in the county to 41.38% of actual fair value rather than 33 1/3%. It is indicated by references in the record before us that this increase resulted in litigation as to the 1976 taxes which was disposed of on a compromise basis by the county making certain refunds.

For the tax year 1977 (taxes payable in 1978), the township assessors assessed and returned their assessments to the superintendent of assessments on the basis of 33 1/3% of the fair cash value without, for the most part, including the 1976 multiplier. These assessments fell into three categories: (1) those assessments which were unchanged from the final 1976 board of review assessment figures; (2) those assessments from which the township assessors had removed the 1976 multiplier factor, and (3) those assessments in which the 1976 board of review multiplier factor had not been included but which had been subject to other increases or revisions based on the merits of the particular case. Upon receiving the figures from the township assessors, the supervisor of assessments added back into the assessments the 1976 multiplier factor where it had not been included by the township assessors, thus bringing the assessments again up to 41.38% of actual fair value.

This change in the township assessors' figures was made and the tax bills sent out without any notice to the taxpayers in those cases where the only change from the township assessors' figures was the addition of the multiplier factor. Certain taxpayers protested these 1977 bills, contending they were illegal because a change had been made in the township assessors' figures without notice to the taxpayers in violation of section 46 of the Revenue Act of 1939 and section 103 of the Act (Ill. Rev. Stat. 1977, ch. 120, pars. 527 and 584). All of the protests which were made solely on the ground that the assessments had been increased by applying the 1976 multiplier factor to the 1977 original assessment figures of the township assessors were routinely denied by the board of review.

The county then filed an application for judgment as to the property for which the 1977 taxes were paid under protest on the basis of the multiplier being added without notice. Thereafter, some 2,000 taxpayers filed objections to the application for judgment by the county collector and requested a refund of the taxes paid under protest to the extent that such taxes had been illegally increased by the application of the 1976 multiplier factor to the assessments of the township assessors. The trial judge ordered a hearing on all central issues in the case. The court heard testimony from various public officials, including the supervisor of assessments, the chairman of the board of review, the deputy chief treasurer of Winnebago County, and the former chief deputy supervisor of assessments, as well as certain taxpayers. While the testimony was limited to a few particular parcels, it was established that those parcels were representative in their particular category of all real estate in Winnebago County falling into that category.

There were three typical fact situations. The "McGreevy" property represented those properties where the assessment had been changed only to the extent caused by the imposition of the 1976 multiplier to the 1977 assessment and no notice of the change from the township assessors' original figures had been given to the taxpayers either by mail or publication. The "Barber-Coleman" properties were typical of the situation where the taxpayer had received notice of the increased assessment and filed an assessment complaint but was denied relief by the board of review. These cases involved some change in the assessment which was made on the merits but in these cases no mention was made in such notice of the effect of the 1976 multiplier factor, which was also involved in the assessment. A third class of properties was that of the protesting taxpayer who had received notice of his increased assessment by the supervisor of assessments based on some other factor than the 1976 multiplier being added, but who failed to file a formal assessment complaint with the board of review. The trial judge determined that all three classes of taxpayers were entitled to refunds.

At the conclusion of the hearing the trial court made findings as to the facts and the applicable law and issued its order of June 5, 1979, which found that the change made by the county supervisor of assessments in imposing the 1976 multiplier factor to 1977 assessments amounted to a change in the assessment, and therefore required that notice be sent to each individual taxpayer, which was not done, thereby making the assessment unlawful. The court further found that in failing to furnish the required affidavit attesting that the assessment was in compliance with the law and represented 33 1/3% of the fair cash value of the properties assessed, in ignoring the township assessors' figures supposedly based on fair cash value and by blanket direction injecting into the computer recording the 1977 assessments, the 1976 multiplier factor rejected in previous litigation, the supervisor of assessments had ignored his duty to consider each property individually and had not acted in good faith in making the assessments.

The court therefore ordered that a refund be made to all taxpayers who had protested their taxes on the ground that the imposition of the 1976 multiplier factor had caused an illegal assessment of their property. This and supplemental orders of the court created refunds to the amount the tax had been increased by the multiplier factor to all taxpayers who had protested their taxes after payment based on the multiplier factor. Some of those awarded refunds had not first filed a complaint with the board of review.

In this appeal, the county and other appellants contend (1) the court erred in ordering refunds to taxpayers who had received notice of the revision but had not exhausted their administrative remedies by filing a complaint with the board of review; (2) the evidence did not support the trial court's finding of actual or constructive fraud in the assessments; (3) the court erred in determining that the application of a multiplier factor amounted to a change in assessment requiring publication and notice to the taxpayers; (4) the court improperly acted as an assessment official; (5) the court erred in treating the proceedings as a class action; (6) unless the case was found to be a class action, the evidence as to three parcels of real estate cannot sustain a verdict as to the actual 3,600 parcels of real estate involved in this litigation; (7) the court improperly delegated its authority in directing the county tax collector to compute the refund and prepare a list of ...


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