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In Re Estate of Winton

OPINION FILED DECEMBER 6, 1983.

IN RE ESTATE OF GLADYS WINTON, DECEASED — (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

MICHAEL SCHIESSLE, EX'R OF THE ESTATE OF GLADYS WINTON, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WILL HAVE LIMITED PRECEDENTIAL SIGNIFICANCE SINCE THE ILLINOIS INHERITANCE ACT (ILL. REV. STAT. 1979, CH. 120, PAR. 375 ET SEQ.) UNDERLYING THIS APPEAL WAS REPEALED BY PUBLIC ACT 82-1021, EFFECTIVE JULY 1, 1983. TRANSFER OF THE ESTATE OF A DECEDENT DYING ON OR AFTER JANUARY 1, 1983, WILL BE SUBJECT TO THE NEW "ILLINOIS INHERITANCE AND TRANSFER TAX LAW." ILL. REV. STAT., 1982 SUPP., CH. 120, PAR. 405 ET SEQ. THE NEW ACT ELIMINATES THE BENEFICIARY CLASSIFICATION SCHEME HERETOFORE PROVIDED UNDER SECTION 1 OF THE REPEALED ACT AND RENDERS MOOT ISSUES OF THE NATURE HERE INVOLVED. HENCEFORTH THE STATE TRANSFER TAX WILL BE DETERMINED IN ACCORDANCE WITH THE MAXIMUM TAX CREDIT ALLOWABLE AGAINST THE FEDERAL ESTATE TAX. OBVIOUSLY, THE REASONING WE EMPLOY IN THE INSTANT CASE AND THE AUTHORITIES CITED HEREIN RELATE TO THE ACT PREVIOUSLY IN EFFECT.

The State of Illinois (State) appeals from an order entered December 22, 1982, by Judge Joseph Schneider of the circuit court of Cook County in which he denied defendant's motion to dismiss and affirmed the inheritance assessment contained in the court's earlier order of September 30, 1982.

On February 20, 1979, Gladys Winton (decedent) died testate at age 76. In her will executed November 18, 1974, she bequeathed all but $1,000 of her $237,421 estate to John R. Winton, Jr. (John), who she characterized in the will as "my step-son." On December 20, 1979, Michael Schiessle, executor of decedent's estate, filed an inheritance tax return in which he classified John as the "mutually acknowledged son of decedent" and therefore claimed for him the benefits of the preferential tax rate and higher exemption provided by then section 1 of the Inheritance Tax Act. The executor calculated the inheritance tax due to be $7,785.31.

On August 14, 1981, the Attorney General, refusing to accord to John Class 1 status, notified the executor of a proposed tax assessment based upon the premise that John was decedent's "step-son" rather than "a mutually acknowledged child" and therefore entitled only to the exemption and tax rate of the third class of beneficiaries. His proposed assessment resulted in a tax of $44,140.88.

On June 1, 1982, Judge Schneider, sitting by assignment pursuant to section 11 of the Inheritance Tax Act, conducted an evidentiary hearing for the purpose of assessing and fixing the inheritance tax due. In the performance of this assignment, Judge Schneider on July 22, 1982, issued his "Memorandum Opinion and Order" in which he found that John was the "mutually acknowledged child" of decedent under section 1 of the Act. *fn2

On September 30, 1982, Judge Schneider entered his "Order of Circuit Court Judge Assessing Tax." On December 22, 1982, following a motion by the Attorney General for leave to appeal and a motion by the executor to dismiss, Judge Schneider, sitting in review of his September 30, 1982, order assessing tax, denied the executor's motion to dismiss and affirmed the tax assessment of September 30, 1982.

This case presents two issues on appeal.

I

The executor contends that the instant appeal is procedurally defective and time-barred by the 30-day proviso of Supreme Court Rule 303 (87 Ill.2d R. 303(a)), requiring that a notice of appeal to this court from a final judgment or order of the circuit court be filed within 30 days after entry of such judgment or order. The executor argues that when, on July 22, 1982, Judge Schneider entered his memorandum opinion and order, he was "construing" a statute, thereby acting in a judicial rather than an administrative capacity. Thus the executor contends that the order entered on that date was a final "judicial" order subject to Rule 303. Because the State failed to appeal to this court from the July 22, 1982, order within 30 days, the executor urges that the instant appeal is untimely.

A similar argument was rejected by our supreme court in In re Estate of Barker (1976), 63 Ill.2d 113, 120, 345 N.E.2d 484. Relying upon judicial interpretations of the New York statute which was the forerunner of our section 11, the supreme court found that "the assessment of taxes is in its nature an administrative or executive function and not a judicial one." (63 Ill.2d 113, 119-20.) The court in Barker found that a circuit judge is constitutionally authorized to assess inheritance taxes under section 11 and the resulting orders are "administrative order[s] and not [final judgments]." 63 Ill.2d 113, 120.

Since the assessment orders issued by a circuit judge under section 11 are not final orders, they are not subject to the 30-day appeal limit of Rule 303. The court in Barker explained that "the term `appeal' as used in section 11 is not used in the same sense as it is used in article VI of the Constitution and Rule 303. Rather it is used in section 11 in the sense of a judicial review of administrative action." 63 Ill.2d 113, 120.

• 1 When, on July 22, 1982, Judge Schneider ordered a redetermination of the Attorney General's proposed August 14, 1981, inheritance tax assessment, Judge Schneider was acting in an administrative capacity. Likewise, the September 30, 1982, tax assessment order entered by Judge Schneider was an administrative order which was then timely appealed by the Attorney General to the circuit court. Judge Schneider's December 22, 1982, order affirming his previously entered tax assessment order was a final "judicial" order subject to Rule 303 which the State has now timely appealed to this court.

II

The parties agree that the only other issue here involved is: In view of the fact that when their relationship began, John was 28 years old, did decedent stand in the ...


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