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Holiday Inns of America, Inc. v. Tully

OPINION FILED MAY 13, 1982.

HOLIDAY INNS OF AMERICA, INC., PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

THOMAS TULLY, ASSESSOR OF COOK COUNTY, ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 17, 1982.

Defendants, Thomas Tully, Cook County Assessor, et al., appeal an order of the circuit court of Cook County authorizing a reduction in back taxes for plaintiff, Holiday Inns of America, Inc., and permanently enjoining collection of statutory interest from plaintiff for the years 1970, 1971 and 1972. Plaintiff cross-appeals from that part of the judgment which orders plaintiff to pay back taxes for the years 1970 and 1971, and the finding that the property was "omitted" for the year 1972, thereby authorizing back taxes for said year.

On appeal, defendants present the following issues for review: (1) whether the trial court erred by enjoining the statutory interest required by sections 220 and 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 701, 705); (2) whether the trial court erred in holding portions of the 1970 and 1971 back tax leasehold assessments void; and (3) whether the trial court erred by enjoining part of the 1970 and 1971 assessments since equitable relief was not proper.

On cross-appeal, plaintiff presents the following issues for review: (1) whether the trial court erred in finding the subject leasehold was "omitted" property within the meaning of section 220 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 701) and authorizing back taxes thereon, and (2) whether plaintiff was denied equal protection of the law by the imposition of back taxes for 1970, 1971 and 1972, after the board of appeals hearings were closed, thus depriving plaintiff of its statutory right to have each assessment reviewed by the board of appeals.

We affirm.

On February 7, 1975, plaintiff filed this action to enjoin assessment, levy and collection of back taxes for the years 1970, 1971 and 1972 on plaintiff's leasehold. Plaintiff holds a leasehold interest as a sub-lessee in a parcel of real estate owned by the board of education of the city of Chicago and located at One South Halsted Street, Chicago. Plaintiff's leasehold interest runs from November 1, 1966, to August 31, 2065.

Plaintiff's complaint alleged that the back taxes were assessed and imposed in 1973 after the proceedings of the board of appeals were closed and the assessment books for 1973 had been certified, and that such taxes were based on assessments made in 1974 which were substantially greater than those originally made by the assessor in 1970 and 1971. Plaintiff alleged that assessing back taxes for those years (1970, 1971 and 1972) is unconstitutional and constitutes an attempted taking of its property without due process of law.

Plaintiff further alleged that for 1970-72 the same legal description was applied to parcel No. 17-16-100-030-8001 (hereinafter # -8001) in volume 591 of the warrant book as was applied to parcel No. 17-16-100-030-8002 (hereinafter # -8002) in volume 608 of the warrant book. The legal descriptions were changed in 1973 by a "division" made by the assessor. This "division" placed the fee interest on # -8001 and the leasehold interest on # -8002; both parcels were placed in volume 591. Previously, each number included both the fee and the leasehold. For 1970, 1971 and 1972, the assessor marked the record cards for parcel # -8001 as exempt. The leasehold was included in the legal description for # -8001 for 1970-72; thus, it was assessed as exempt for those years. Therefore, plaintiff contends, the leasehold was not omitted property for those years and the assessor was without authority to enter back taxes for 1970-72 on the leasehold because the leasehold was assessed as exempt for those years.

Plaintiff was assessed a use tax for 1970 and 1971 which was paid. Subsequently, the use tax was held unconstitutional by the Illinois Supreme Court and the resulting taxes held void. (See Dee-El Garage, Inc. v. Korzen (1972), 53 Ill.2d 1, 289 N.E.2d 431.) The supreme court held that the unamended section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1967, ch. 120, par. 507) was in full force and effect for 1970 and 1971. (Dee-El Garage, Inc. v. Korzen (1972), 53 Ill.2d 1, 10-11.) Plaintiff Holiday Inns further alleged that it was refunded 85% of the use tax paid. The assessor proceeded to back tax the subject leasehold for 1970 and 1971. The leasehold was not omitted from the assessment for 1970 and/or 1971; thus, plaintiff argues, the assessor was without authority to back tax for those years.

The back tax bills that plaintiff received for the subject leasehold for the years 1970, 1971 and 1972 are as follows:

ASSESSED VALUATION TAX

1970 $1,695,665 $204,337.96 (including 10% interest) 1971 $1,695,665 $211,644.40 1972 ...


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