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06/10/87 Central Furniture Mart, v. J. Thomas Johnson

June 10, 1987

CENTRAL FURNITURE MART, INC., PLAINTIFF-APPELLANT

v.

J. THOMAS JOHNSON, DIRECTOR OF REVENUE OF THE DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

510 N.E.2d 937, 157 Ill. App. 3d 907, 109 Ill. Dec. 869 1987.IL.779

Appeal from the Circuit Court of Cook County; the Hon. Mary Conrad, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Central Furniture Mart, Inc., appeals from a judgment of the trial court affirming, on administrative review, final assessments imposed by defendant, J. Thomas Johnson, Director of Revenue of the Illinois Department of Revenue, for retailers' occupation tax deficiencies.

Plaintiff is a retail furniture store located in Chicago. The Department conducted an investigation and audit of the store and determined that certain deductions should be disallowed. The Department compiled a corrected return and issued notices of tax liability to plaintiff. The notices assessed Illinois retailers' occupation taxes (Ill. Rev. Stat. 1977, ch. 120, par. 440 et seq.) in the amount of $35,729; municipal retailers' occupation tax (Ill. Rev. Stat. 1977, ch. 24, par. 8-11-1) in the amount of $8,931; interest in the amount of $11,949.87 and a $2,233 penalty; and regional transportation authority retailers' occupation taxes, penalty and interest in the amount of $6,063.49.

Plaintiff contested the notices. At an administrative hearing on May 17, 1982, the Department entered into evidence its corrected returns. Michael J. Millen, a Department auditor, testified that he conducted an audit of plaintiff and prepared the corrected returns based upon plaintiff's books, records and general ledgers.

Millen disallowed plaintiff's claimed deduction for tax collection. He testified that, based upon his test check, only a few of plaintiff's invoices contained a separately stated amount representing a collected sales tax. A small allowance was recognized for those stated taxes and the remaining claimed deduction for tax collection was disallowed.

Millen testified further that he disallowed plaintiff's claimed setoff for bad debts contained in a reserve fund. Plaintiff sold its installment contracts to finance companies and part of the sale proceeds was placed in reserve accounts. Plaintiff would receive a partial rebate from the account when it reached a certain amount. The claim was disallowed because it was considered to be a discount on the sale of paper, which is a nondeductible cost of doing business. Credits were allowed, however, for repossessions where plaintiff had to repurchase the installment contracts, and billings and checks were shown.

Michael Jacobson, plaintiff's owner, testified that plaintiff is in a highly competitive business. Salesmen would write only the total sales price on the invoice, and that price included the tax. On the salesman's scratch pad, however, the tax was listed separately and shown to the customer. The customer was given a copy of the computations if requested, but otherwise the scratch paper was thrown away. In figuring out the salesman's commission, the tax was deducted. Plaintiff introduced the July commission sheet of one salesman. Jacobson testified that the amounts listed on the sheet were less sales tax.

Jacobson testified further that plaintiff sold installment contracts to finance companies, under which plaintiff could repurchase the paper. The contracts also provided that a percentage of the purchase price would be placed in a reserve account. The finance company could charge unpaid installments against this fund. When the account exceeded 40% of the total unpaid installments of all other outstanding paper, the excess was divided equally between plaintiff and the finance company. Jacobson stated that the reserve funds were collateral for bad debts. Other contracts had no recourse provision, and thus plaintiff was not entitled to the reserve funds until all outstanding installment contracts were paid in full.

Plaintiff also offered the testimony of three other witnesses. The hearing officer found that their testimony would be cumulative, and the Department waived the calling of those witnesses.

The hearing officer recommended that the notices of tax liability be upheld. On August 11, 1983, the Department issued its final assessments in the amount of $71,832.57 and $7,794.73. The hearing officer upheld the auditor's disallowance of plaintiff's claimed deduction for collected sales tax because plaintiff failed to present sufficient evidence that the taxes were separately stated and collected. The hearing officer also upheld the auditor's rejection of a setoff for charges against plaintiff's reserve fund. The contracts with the finance companies stated that the recourse provisions applied only to installment contracts specifically endorsed, but no ...


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