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Pedigo v. Dept. of Revenue

OPINION FILED APRIL 21, 1982.

DANNY J. PEDIGO, D/B/A PEDIGO SOD COMPANY, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. RICHARD J. CADAGIN, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 17, 1982.

Pedigo, a pro se plaintiff, appeals the order of the circuit court upon administrative review which affirmed the finding of the Department of Revenue that he was liable for arrears of taxes under the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.), the Service Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.101 et seq.), the County Retailers' Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 34, par. 409.1), and the County Service Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 34, par. 409.2) and affirmed the Department's assessment of taxes due.

On June 1, 1978, the Department of Revenue issued a "Notice of Tax Liability" which advised Pedigo of the assessment of the several taxes for the period January 1, 1976, through December 31, 1978. The Department of Revenue held a hearing upon request for review on August 21, 1979.

At the hearing, the Department offered into evidence, without objection, documents entitled "Correction of Return or Determination of Tax Due" showing amounts computed by the Department's auditor, Larry Lascody, to be due arising out of plaintiff's business as a retail sod dealer. Lascody testified that in using taxpayer's sales invoices, purchase invoices, and sales journal, he had determined which sales of plaintiff's sod were retail, which were sold for resale, which were sales of services, and which were sold to tax-exempt purchasers such as charitable entities and governmental bodies. Lascody related that the retail sales had no installation or freight charge on the invoices and were simply identified as "pickup" by the purchasers. Applying the categorical percentage of each type of taxable sale to taxpayer's gross receipts listed on his Federal tax returns and including penalties, taxpayer was issued a final assessment of $12,546.26 for State retailers' and service occupation taxes and $3,136.58 for county retailers' and service occupation taxes.

During the administrative hearing, plaintiff stated that he was in the business of growing and selling sod in the central Illinois area and claimed exemption from tax by virtue of section 1 of "An Act for the protection of farmers, fruit-growers, vine growers and gardeners" (Ill. Rev. Stat. 1979, ch. 5, par. 1), which provides:

"Every farmer, fruit and vine grower, and gardener, shall have an undisputed right to sell the produce of his farm, orchard, vineyard and garden in any place or market where such articles are usually sold, and in any quantity he may think proper, without paying any state, county or city tax, or license, for doing so, any law, city or town ordinance to the contrary notwithstanding: Provided, that the corporate authorities of any such city, town or village may prohibit the obstruction of its streets, alleys and public places for any such purpose: And, provided further, that nothing in this Act shall be so construed as to authorize the sale of spirituous, vinous or malt liquors, contrary to laws which now are or hereafter may be in force prohibiting the sale thereof."

Plaintiff also offered into evidence a letter from the Illinois Bureau of Plant and Apiary Protection which notified taxpayer that his business for labor statistics purposes would be classified as a farming operation. Plaintiff stated that the sod was sold for use by the purchasers in landscaping and indicated he did, on occasion, provide installation services for the purchasers. Plaintiff did not claim his sales were all for resale, but continued to assert that he was a farmer and exempt from taxation by virtue of section 1 of the above act.

In the Department's findings, the hearing officer rejected plaintiff's exemption and affirmed the assessment which was approved by the director on January 10, 1980. Plaintiff thereafter sought review in the circuit court of the Department's finding which court denied the relief and affirmed the Department's assessment.

On appeal, plaintiff claims that the notice of hearing before the Department of Revenue violated section 10 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1010); that the Department has no jurisdiction to hold a hearing to determine if a potential taxpayer is within the scope of the subject tax act; that the Department failed to prove he was a retailer engaged in selling tangible personal property for use or consumption; that section 1 of "An Act for the protection of farmers, fruit-growers, vine growers and gardeners" (Ill. Rev. Stat. 1979, ch. 5, par. 91) exempts him from taxation; that the circuit court heard new and additional evidence in its hearing on administrative review; and that the findings of fact of the Department's hearing officer were not based upon matters in evidence in violation of section 11 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1011).

• 1 Plaintiff first contends that section 10 of the Illinois Administrative Procedure Act was not complied with in the form and content of notice which was sent to him by the Department of Revenue advising him of the contested hearing. Section 11a of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 450a) expressly adopts the Illinois Administrative Procedure Act in administrative proceedings of the Department. Under section 10 of the Illinois Administrative Procedure Act, the notice of a hearing in a contested case must contain:

"1. a statement of the time, place and nature of the hearing;

2. a statement of the legal authority and jurisdiction under which the hearing is to be held;

3. a reference to the particular Sections of the statutes and rules involved; and

4. except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted." (Ill. Rev. Stat. 1979, ch. 127, par. 1010(a).)

From a comparison of the statutory requirements with the notice sent to the plaintiff and included in the record, it appears that any deficiency of the Department's notice concerned its failure to allege that assessment was sought under the County Service Occupation Tax Act, and to refer to Rule 4 of the Department of Revenue's Retailers' Occupation Tax Rules. Despite this omission in the notice, we note that plaintiff failed to object at any point to the notice issued by the Department below. As such, any claim by plaintiff that the notice did not comply with section 10 will not be considered inasmuch as this matter has been waived by plaintiff's failure to object to the omission of the aforementioned ...


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