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05/12/87 Pecora Oil Company Et Al., v. J. Thomas Johnson

May 12, 1987

PECORA OIL COMPANY ET AL., PLAINTIFFS-APPELLEES

v.

J. THOMAS JOHNSON, DIRECTOR OF DEPARTMENT OF REVENUE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

509 N.E.2d 495, 156 Ill. App. 3d 521, 108 Ill. Dec. 799 1987.IL.609

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiffs, Ted Pecora and Pecora Oil Company (Pecora), filed an action for a writ of mandamus, declaratory relief, and an injunction against defendant, J. Thomas Johnson, Director of the Department of Revenue (Director). The trial court issued an order granting the request for a writ of mandamus and an injunction compelling the production of certain records sought by Pecora pursuant to the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). The Director appeals from the trial court's ruling, asserting that the requested records are exempt from disclosure under the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 440 et seq.) and under the FOIA.

Pecora purchases motor fuel from various refineries and distributes the fuel to retailers for sale to consumers. Under section 2d of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 441d), Pecora is required to prepay to each of its suppliers the retailers' occupation tax on the motor fuel received from that supplier and distributed to a retailer. Section 2e of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 441e) requires suppliers and distributors to file monthly statements of taxes paid for each of their fuel purchasers showing the amount of motor fuel sold or distributed to that purchaser during the preceding month and the amount collected from that purchaser.

In its brief on appeal, Pecora states that deficiencies were assessed against it by the Department of Revenue for a 34-month period from January 1983 until October 1985. Pecora challenged these deficiencies in an administrative proceeding and sought the records in question in connection with that proceeding. Pecora made its FOIA request to the Department by letter dated May 20, 1986, and sought the following.

"1. Copies of records which reflect the invoiced gallons of motor fuel that refiners, suppliers, or producers have reported as sold to Pecora Oil Co. for the thirty-four calendar months of January 1983 through October 1985.

2. Copies of records which reflect the invoiced gallons of motor fuel which were reported by Pecora as purchased from refiners, suppliers, or producers for the thirty-four calendar months of January 1983 through October 1985.

3. Copies of records which purports [ sic ] to show the reconciliation between the invoiced gallons of motor fuel that refiners, suppliers or producers have reported as sold to Pecora Oil Company and the invoiced gallons of motor fuel that were reported by Pecora Oil Company as purchased from refiners, suppliers, or producers for each of the thirty-four calendar months of January 1983 through September 1985."

The Department only granted the request with respect to the records sought in item two. The Department cited section 7(b)(iv) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(iv)) as the basis for its denial of access to the records sought in items one and three. After its appeal to the Director was denied, Pecora filed the instant action pursuant to section 11 of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 211) in the circuit court of Du Page County.

The Director never filed an answer to Pecora's complaint. A hearing was held on the return date of July 29, 1986, during which the trial court ordered the parties to submit memoranda of law and set the matter for a further hearing. At the second hearing, held on September 2, 1986, the trial court issued its ruling in favor of Pecora.

There is no report of proceedings in the record on appeal, nor is there a substitute pursuant to Supreme Court Rules 323(c) or (d) (87 Ill. 2d Rules 323(c), (d)). As the appellant, the Director has the burden of presenting a sufficiently complete record of the proceedings in the trial court to support its claim of error; in the absence of such a record we will presume that the trail court's ruling was in conformity with the law and had a sufficient factual basis. (Foutch v. O'Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Any doubts which arise from the incompleteness of the record will be resolved against the appellant. (99 Ill. 2d 389, 392.) This court may, however, review any issues ...


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