APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN E. NOVOSELSKY, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 23, 1981.
The Illinois Department of Revenue (Department) filed two tax claims in the estate of Albert Krakow, deceased (decedent). The probate division granted summary judgment in favor of the executors denying these claims. The Department appeals.
Prior to his death on December 13, 1977, decedent had been the sole proprietor of a business known as "1000 Liquors." On January 26, 1978, decedent's will was admitted to probate and letters of office were issued. The last date for filing claims against the estate was July 26, 1978. Ill. Rev. Stat. 1979, ch. 110 1/2, par. 18-12.
The claims at issue here were filed by the Department on July 25, 1978. One claim for $24,021.20 was described as:
"(1) Tax, with accrued interest and penalties, to the date of death of the deceased, as a person.
(A) engaged in the business of selling tangible personal property for use or consumption, measured by the gross receipts from such sales."
The other claim for $26.24 was described as:
"1. Tax with interest accrued to date, as an employer who withheld or was required to withhold and to pay over to the Illinois Department of Revenue, Illinois State Income Tax unpaid to date of death.
A. An unpaid balance at the date of death."
On September 14, 1978, the Department issued a notice of tax liability. The notice was issued to "Albert Krakow, dba 1000 Liquors" at decedent's business address. The notice showed copies thereof were sent to the executors at their home addresses and also to both of their attorneys. The notice also stated the returns as corrected showed a State Retailers' Occupation Tax deficiency of $16,931.24 plus penalty and interest and a municipal tax deficiency of $4232.81 plus penalty and interest, from July 1975 through December 12, 1977. The combined, total liability was $27,227.85.
On July 6, 1979, the executors filed a motion for summary judgment in the probate division. The executors averred they had filed in the Department a motion to dismiss the claims. On April 11, 1979, the Department denied this motion by a letter from James Zagel, director. The letter stated, "[I]t is the opinion of this office that the Department's claim before the Probate Court has been properly filed." The motion for summary judgment also states the claims of $26.24 and $24,021.20 are contingent, the notice of tax liability was not issued prior to the expiration of the date for filing claims, and the notice was not issued to the executors as required by law.
The motion was supported by an affidavit by one of the executor's attorneys. It stated the notice of tax liability was not issued prior to the last claim date and no notice or demand or correction of returns for any amount was received by the executors prior to that date.
The record before us shows the Department has completed the hearings on the issue of tax liability on these claims. The Director of Revenue conducted a hearing on September 11, 1979, and allowed both claims. The brief of the executors shows they have waived ...