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In Re Application of Cook County Treas.

OPINION FILED SEPTEMBER 23, 1982.

IN RE APPLICATION OF COOK COUNTY TREASURER AND EX-OFFICIO COLLECTOR. (JOSEPH WAHRER ET AL., INTERVENING OBJECTORS-APPELLANTS.)


Appeal from the Circuit Court of Cook County; the Hon. Robert J. Dempsey, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 27, 1982.

Objectors, Joseph and Gretchen Wahrer, appeal from the trial court's denial of certificates of error issued by the Cook County assessor. They raise the following issues for review: (1) whether the trial court may impose different and further requirements on a taxpayer who intervenes in a certificate of error proceeding than are imposed upon the assessor when the certificate is presented by that public official on behalf of the taxpayer; (2) whether the trial court may substitute its judgment for that of the assessor when the latter confesses that he made an error in the assessment of property; (3) whether the doctrine of separation of powers precludes the trial court from denying a validly executed certificate of error; and (4) whether the trial court's decision denying the certificates was against the manifest weight of the evidence.

We affirm.

For 1978, intervening objectors Joseph and Gretchen Wahrer (hereinafter the taxpayers) owned and paid taxes on property which was used as a "mini-warehouse," a personal storage facility containing cubicles rented on a month-to-month basis. The mini-warehouse had opened in late 1977 and contained a total of 295 units in three sizes: 50, 150 and 250 square feet. The number of units rented in 1978 varied from a low of 50 in January to a high of 210 in October. The taxpayers estimated average occupancy for 1978 as approximately 50%, but they kept no monthly statistics on the total amount of space rented. Total rentals for the property for 1978 amounted to $91,793.

On August 25, 1979, taxpayers' attorney sent a letter to the Cook County assessor suggesting that certificates of error be submitted for their property for 1978. For that year, the mini-warehouse had received a full assessment. Taxpayers believed the property should have received a partial assessment based upon initial occupancy and reduced gross income. Taxpayers asked that the assessment be reduced from $226,600 to about $160,000. The assessor granted certificates of error to reduce the assessment to $207,540. At a hearing on July 7, 1981, the assistant State's Attorney, Ronald Hubka, presented certificates Nos. 3080 and 3081 to the circuit court as objections in the 1978 application for judgment and order of sale against taxpayers' property. Approval of the certificates would mean that the taxpayers would be entitled to a refund of 1978 real estate taxes.

At the hearing, Hubka discussed the basis for the reduced assessment:

"MR. HUBKA: * * * I will tell you he [taxpayers' attorney] went through a very nice workout. What I did is looked and found the assessor worked it on an income approach. Mr. Rooney [taxpayers' attorney] wanted to do it on an occupancy approach. But I think the bottom line I found was a depreciable base."

Later, the court inquired:

"THE COURT: Well, how do you work a market based on partial occupancy? That is a theoretical question.

MR. HUBKA: Very difficult. The assessor used to have the old workout for apartment buildings.

THE COURT: You can't use that, because they already used up first year occupancy and * * * I am very reluctant to use a purported figure because the owner * * * says for the last four months of the year the occupancy range is 205 and 210 units; but he can't tell us whether it is the 50 square foot units, the 150 square foot units, or 250 square units.

What theory are we really going on? As it is established that it is only partially occupied. There is partial occupancy.

MR. HUBKA: The theory of the taxpayer is partial occupancy. The theory of the assessor is take an economic workout. To me, the assessor did it anyway, you know worked out partial occupancy, was run on certainly an economic ...


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